Mr F Amankwah v North Middlesex University Hospital NHS Trust: 3304558/2022

EMPLOYMENT TRIBUNALS

Case No 3304558/2022

Between

Mr F AmankwahClaimant

North Middlesex University Hospital NHS TrustRespondent

Before

Employment Judge Park

Members

Ms J Costley

Ms S Laurence-Doig

Mr R O’Keeffe (instructed by Counsel) for respondent

Mr O’Keeffe (instructed by counsel) for respondent

Date 15 March 2024

JUDGMENT

[1]The claimant’s claims that the respondent failed to make reasonable adjustments all fail and are dismissed.

[2]The claimant’s claims for discrimination arising out of a disability all fail and are dismissed.

[3]The claimant’s claims for harassment on the grounds of disability all fail and are dismissed.

REASONS

[1]The claimant’s claims were for: 1.1. discrimination arising from a disability; 1.2. harassment on the grounds of disability; and 1.3. failure to make reasonable adjustments.

[2]Following a Preliminary Hearing on 13 December 2022 the parties agreed the issues to be determined by the Tribunal. 85

[3]The claimant has severe dilated cardiomyopathy. He says due to this he meets the definition of being disabled under the Equality Act 2010. This was not disputed by the respondent.

[4]The list off issues is attached to this judgment as an appendix. It includes the following: 4.1. details of what the claimant said happened that was unfavourable treatment that arose from his disability; 4.2. details of the thing(s) that the claimant says arise out of his disability; 4.3. details of the conduct that the claimant says was unwanted and amounted to harassment; 4.4. details of the provisions, criteria and practices (PCPs) that the claimant says placed him at a substantial disadvantage compared to someone without his disability; and 4.5. the adjustments the claimant says the respondent should have made.

[5]The claimant started Early Conciliation on 9 February 2022. Any claims based on acts or omissions that occurred before 10 November 2022 are out of time unless they form part of a continuing act that was ongoing on 10 November 2022. The Tribunal will consider whether it has jurisdiction in respect of those claims and, in respect of any claims that are out of time, whether it would be just and equitable to extend time. Procedure, documents and evidence

[6]The parties were both represented.

[7]A bundle of documents had been prepared. We noted that there were some pages in this listed as deliberately blank. We queried this at the outset. The parties advised that there had been some dispute about the contents of the bundle so some documents that were not being referred to had been removed.

[8]As we deliberated on the case it has appeared to us that it was possible there were additional documents that may have been relevant that were not provided to us, as there seemed to be some gaps in the correspondence at times. We have taken care to base our findings solely on the evidence we have seen and heard.

[9]During the course of the hearing both parties provided some additional documents. The respondent provided these on the afternoon of the second day and made an application that they were admitted. We heard this on the morning of the third day. The claimant objected to the inclusion of some of these documents. We allowed all the documents to be admitted on the basis they appeared relevant and there was no obvious prejudice to the claimant. He had 86 time to review them, he could cross-examen the respondent’s witnesses if he wished and make any relevant submissions.

[10]After the conclusion of the evidence the claimant provided further docs. The parties sought to reach an agreement on what was shown by these documents. possible. We were concerned about a disproportionate amount of time being spent debating their admissibility. We decided to allow the documents, with both parties able to make submissions on their relevance. However, as none of the witnesses had been able to address them in evidence we would only give such weight as we saw appropriate.

[11]The claimant had prepared a statement and was cross-examed. The respondent called three witnesses. They were Barbara Pacetti, Anna-May Charles and Nicola Wills-Eversley.

Findings of fact

[12]The respondent is an NHS Trust. The claimant is employed by the respondent in the role of Physician’s Assistant. His employment commenced in July 2002.

[13]The purpose of the claimant’s role is to assist doctors on the ward. We accepted it involved practical tasks. It was not just an administrative role. It required some patient facing clinical responsibilities. There was some dispute about which was the correct job description for the claimant as at some point relatively recently had been reviewed and regraded. Irrespective of this, we found that the purpose of the role is clear. As noted in the original job description, it is a “multi-faceted role, which adapts to the ever-changing demands of the emergency-driven service”. Pre-lockdown it was entirely ward based as it formed part of the team on a particular ward.

[14]In March 2020 the country went into national lockdown due to the COVID pandemic. In March 2020 the claimant was also diagnosed with a heart condition, severe dilated cardiomyopathy.

[15]There is no dispute that as a result of this he was clinically vulnerable. In April 2020 the claimant was admitted to hospital and reviewed by a specialist. They advised he was at risk of exposure to COVID. The claimant was seen by Occupational Health on 6 May 2020. They informed the claimant’s manager that he was not fit to return to work. The claimant remained signed off work for until October 2020.

[16]The claimant was in effect shielding but because his condition had started during lockdown he did not seem to receive any formal confirmation of this from the government. It was accepted by respondent that he should be shielding and at this point he was not fit to work in any event. 87

[17]The claimant was reviewed by Occupational Health on 21 October 2020. They advised the claimant had been reviewed by his specialist who said that he was fit to work but needed to remain shielding and not be involved in direct patient care. Occupational Health reported the claimant could return to work if he was based at home. At that time government advised shielding was still in place so the respondent accepted the claimant should remain at home.

[18]The claimant resumed working on a phased basis initially and just from home. There was a lack of evidence about what actually happened at this point. The claimant seems to have just moved from being signed off work to working from home. We saw some evidence about setting up remote access for the claimant to enable him to do this. However, there was no return to work meeting and the claimant did not seem to have any discussions with any manager about what he would actually be doing when working from home. Essentially the claimant was left to his own devices to get on with whatever work he was able to do remotely. That was understandable given the situation at the time.

[19]Barbara Pacetti, Ward Manager, took over as the claimant’s manager at that point. They did not meet in person, either virtually or in person. According to both Ms Pacetti and the claimant, they were in correspondence by Whatsapp. We did not see any of their direct messages, only some from a group chat.

[20]At the end of March 2021 shielding arrangements were due to end. The claimant was still working from home. The respondent made an Occupational Health referral to seek an update. This referral was made on 25 March 2021 and Ms Pacetti said that she spoke to the claimant about the referral. We had to reason to doubt this was the case.

[21]The claimant was reviewed by Occupational Health on 14 April 2021. The claimant had been due to see his specialist around then but the appointment had been postponed. The report notes that updated guidance for those shielding said that everyone is advised to work from home where possible. Occupational Health said that a risk assessment should be carried out about infection control and PPE. We note as a matter of fact that it does not include any specification of when this should happen or who should do it.

[22]No further action was taken immediately. In May 2021 Barbara Pacetti sought further information from Occupational Health. The email indicated that she wanted more information to decide whether the respondent could request that claimant return to work in person rather than work from home. We accepted Ms Pacetti’s evidence that she did this because she wanted to know whether the claimant was actually medically fit to work on the ward. We note again that at this point there had still been no discussion or return to work meeting between the claimant and Ms Pacetti following his initial absence due to his heart condition from March-Oct 2020. As a result Ms Pacetti manager had no real understanding 88 of whether the claimant was actually medically fit to work, irrespective of his vulnerability to Covid.

[23]Ms Pacetti made a further Occupational Health referral on 20 May 2021. Again we accept her evidence that she spoke to the claimant about this. We have no reason to doubt this was the case. She asked that Occupational Health advise on the claimant’s fitness to return to work now up to date information from cardiologist should have been received. Ms Pacetti chased this on 1 June 2021. Occupational Health provided an update on 2 June 2021 advising that the cardiologist said that the claimant should ideally continue to work remotely. Occupational Health also confirmed that the current guidance for those who are clinically extremely vulnerable was they should work from home where possible.

[24]On 8 June 2021 Ms Pacetti wrote to the claimant to invite him to an informal absence review meeting. At that point the claimant was not signed off work but he was working from home and had been since October 2020. In evidence Ms Pacetti accepted this was not the right letter to send and she had done so on HR advice. We note by way of context the claimant had been off sick for a prolonged period in 2020 and had not actually returned to work because of the unique situation at the time. We also not that the letter clearly stated it was an informal process and it was about the claimant being reluctant to return to his main workplace.

[25]Additional context that we consider important is the fact that pre-lockdown the claimant’s role was wholly ward based. The claimant had started to work from home after a period of absence due to the unique situation. However, there was no indication that the feasibility of him working from home on a long-term basis had ever been considered in any detail. The situation had arisen in reaction to the circumstances but as a matter of fact we conclude there had never been any agreement that it would be long term without further review.

[26]One of the issues that was under dispute was the extent to which the claimant was successfully undertaking his role from home. We were provided with very little evidence on this from either party. There were two versions of the claimant’s job descriptions. We were also provided with some Whatsapp messages which the claimant said provided a snapshot of his work. This was insufficient for us to be able to make any detailed findings of fact of exactly what the claimant was doing on a day-to-day basis and what proportion of his role he could do from home. Ms Pacetti estimated that the claimant was only doing around 20% of his role, but in cross-examination she conceded it may have been more. The claimant tried to suggest he was doing the majority of the role. Given that it was usually a ward-based role with patient facing clinical responsibilities we did not find this credible. We concluded that there was uncertainty about what the claimant was doing and this in itself was sufficient for Ms Pacetti to be genuinely concerned about the practicality of the claimant continuing to work from home. We also accepted that she thought that ideally the claimant should be back 89 working on the ward as part of the team. This was why Ms Pacetti wanted to arrange a meeting with the claimant, to discuss the situation.

[27]The claimant responded to Ms Pacetti on 15 June 2021. He stated he was not shielding but was working remotely. He said he was not reluctant to return to work but was working at home based on government guidance. He reiterated he was not sick or absent but working remotely. In his letter the claimant also raised issues about discrimination. He said he was declining the invitation to attend a meeting that related to managing absence. He said he would attend a virtual meeting that was not described as an absence review, to discuss the practical steps and assessments that could be done to ensure he could return safely.

[28]We found that the overall tone of the claimant’s letter was confrontational. It was correct that he was not off sick. However, the claimant did not just object to this wording. He comes across as uncooperative. Although he says he will attend a meeting he also lists a number of other conditions that must be met in order for him to do so.

[29]Ms Pacetti responded to arrange a meeting by Teams. This meeting was then cancelled. This was because Ms Pacetti wanted HR support at the meeting. Ms Pacetti advised the claimant that she now wanted to have a case review with both Occupational Health and HR involved to discuss his concerns. Ms Pacetti made a new Occupational Health referral on 18 June 2021.

[30]There was further correspondence at this time between the claimant and Ms Pacetti, and in addition Toni-Marie Rose from HR corresponded with the claimant. We are not going to go through all of this correspondence in detail. What we note is as follows: 30.1. The claimant challenged what was meant by an informal meeting. Ms Rose set out clearly that the respondent wanted to discuss the situation as she said the role cannot be done fully from home. She explained they wanted to look at the arrangements and assess his situation. We accept those concerns were genuine. As we have already found, the feasibility of the claimant working from home on a long term basis had never been reviewed before. 30.2. The claimant responded. He did not confirm attendance but instead raised issues about reasonable adjustments. Ms Rose responded to say that the intention of the review was to discuss these type of matters and he can ask questions and gain clarity at the meeting. 30.3. On 21 June 2021 the claimant sent a lengthy response. He started saying he would complain to the EHRC and he raised further issues 90 about the Equality Act 2010, health and safety and the Occupational Health recommendations.

[31]Again we found that the tone of the claimant’s correspondence is confrontational. He suggests he will attend a meeting but never actually agrees to do so. He includes a number of caveats. On the other hand, Ms Rose’s emails were concise, clear and she sought to reassure the claimant that his concerns will be discussed.

[32]As we understand the claimant’s case he is complaining that he was not formally told that the absence review process was not going ahead. We note that this was not expressly stated by Ms Pacetti or Ms Rose. However, we found it somewhat disingenuous for the claimant to insist that there remained a threat of absence management proceedings. Ms Rose was very clear about the purpose of the meeting and there is no threat of any sanction. By the middle of June it had been clearly set out to the claimant that it the meeting was to discuss the situation generally including the claimant’s health and how he can be kept safe while also meeting the needs of the department. The claimant’s response to this was to send lengthy emails which lacked focus but made it clear that he objected to any meeting.

[33]The case review did not happen in June 2021. The claimant continued to work from home.

[34]The claimant was reviewed again by Occupational Health on 14 July 2021. Occupational Health reported that the claimant had difficulty wearing masks. They repeated that the claimant should remain working from home in line with the specialist advice. On this point, we were not provided with any of the reports from the specialist. Therefore, we cannot make any finding on this beyond what was reported by Occupational Health, which was “ideally, he should continue working remotely to avoid being exposed to COVID 19”. There was no reference to a risk assessment in this Occupational Health report.

[35]On 7 September 2021 Ms Pacetti wrote to the claimant asking him to a working from home review meeting. This was due to take place on 22 September 2021, so the claimant had over 2 weeks’ notice. He was also told he could bring a union representative. Ms Pacetti offered the option of a video meeting via Teams. Ms Pacetti’s letter is brief but it is clear that the proposed meeting is just a review. It is not described as being part of any formal process and there is no sanction threatened. We accepted that the proposal to hold a meeting in the circumstances was reasonable, given that by this point the claimant had been working from home for almost a year and there had been no direct discussion about the situation between him and his manager during the entire time. 91

[36]The claimant responded by email dated 14 September 2021. He said he did not understand why the review was arranged. He also seems to have objected to providing any medical records.

[37]Around this time another issue arose. On 9 September 2021 the claimant complained about bullying by Dr Amir Jehangir. His own evidence is he was going on site to do one particular task in the education centre, even though he was not going onto the ward. On 17 September 2021 Ms Pacetti wrote to the claimant about the complaint and she noted that the claimant had been attending the hospital in person. The claimant responded to confirm he ws on site but not in clinical areas.

[38]On 20 September 2021 Ms Pacetti asked the claimant to confirm his attendance at the review meeting. The claimant responded to this by raising a grievance about Ms Pacetti. This is lengthy but the gist was that he is said the respondent was failing to make reasonable adjustments and was disregarding Occupational Health recommendations.

[39]At this point the respondent had not actually given any instructions that the claimant return to work on site. They had just tried to hold a meeting in June and were trying again in September. The proposal was just a meeting with the claimant about his working from home arrangement and potentially returning to working on site.

[40]In his grievance the claimant asserts that the respondent was disregarding Occupational Health advice. As a matter of fact we found this was not the case. Occupational Health advised that ideally he should work from home. At that point the claimant was still working from home and there had been no instruction to the contrary. All that Ms Pacetti was trying to do was hold a meeting to discuss the situation and what could be done to assist the claimant when he was able to return to work on the ward. In response to this the claimant raised a grievance and threatened to escalate the matter to the respondent’s CEO.

[41]Ms Pacetti acknowledged the grievance and informed the claimant that it had been escalated to the Associate Director of Nursing.

[42]On 22 September 2021 the claimant wrote to Ms Pacetti again. He said he had explained it was not appropriate for him to attend what he described as a ‘nonmedical review meeting’. Again, he alleges that Occupational Health recommendations are being disregarded. The claimant again said that he declined to attend the proposed meeting until the respondent had actioned the Occupational Health recommendations.

[43]As a matter of fact we find that the claimant responded to a simple request to meet in a way that was confrontational and created a conflict. As we have previously found, the respondent had a genuine concern about the feasibility of 92 the claimant’s role being done from home. It genuinely believed it needed to be ward based and could not be done fully from home. This was the case, irrespective of the exact amount of the role the claimant was undertaking at the time. All that Ms Pacetti had done was ask the claimant to a meeting to review the situation. The claimant responded by raising a grievance, making assertions that misrepresented the situation and refusing to attend the meeting.

[44]On 15 October 2021 Anna-May Charles, Associate Director of Nursing, wrote to the claimant advising she was looking into his grievance. She asked to meet with him on 18 October 2021 to discuss the grievance and also review his current working arrangements. The claimant responded on 18 October to say he had been on leave so could not attend the meeting.

[45]We heard a lot in evidence about the lack of notice and that this was not in compliance with the formal grievance policy. The notice given to the claimant was short, though we also note it was not clear that this proposed meeting was a formal meeting under the grievance process.

[46]What we noted was that the meeting was scheduled for 1pm. The claimant was working on 18 October 2021 and started work at 8am. He only wrote to say he could not attend at 12.59. It is not clear why he did say he was unable to attend earlier in the morning. We also noted that the claimant did not try to reschedule the meeting. On the contrary, in his email he just said he would send a response via email.

[47]Almost immediately after Nicola Wills-Eversley, HR business partner, responded to the claimant to say she will reschedule the meeting later that week.

[48]On 19 October 2021 the claimant wrote two lengthy emails. One was to the CEO and one was to Ms Charles, which he copied to the CEO. He objected to the review of his working arrangements. He said this is the underlying reason for his complaint and it was not appropriate for him to attend a review meeting. Again, we found these emails to be confrontational in tone.

[49]Ms Charles responded explaining that the purpose of the meeting was to understand the claimant’s concerns, discuss the grievance and what support would be needed. She also said that a meeting had been arranged for that Friday, 22 October 2021, and it could be held by video.

[50]We were also provided with a copy of a meeting invite sent by Ms Wills-Eversley to the claimant and Ms Charles for a meeting on 22 October 2021. This showed one recipient had accepted but there was no response from the other.

[51]The claimant says he did not receive this email. We did not accept his account on this point. We had documentary evidence of a meeting invitation having been sent to two recipients by Ms Wills-Eversley. We did not find it credible that the 93 claimant had not received it and we concluded it was more likely that the claimant just did not respond. He already knew there was a meeting arranged because Ms Charles had told him. The claimant did not chase that up and say he had not received an invitation. We find it more likely that he received the invitation and rather than respond he sent the further emails on 19 October to the CEO and Ms Charles. Those emails were confrontational and gave no indication of any willingness to attend any meeting. We also note that when he said he could not attend the meeting on 18 October he said he would respond by email. We find it is likely the claimant had no intention of attending any meeting at that point.

[52]Later on, in internal correspondence, Ms Charles described the claimant as not engaging and having refused two meeting requests. Looking at all the correspondence from the claimant at the time we find that is an accurate description of how the claimant acted. The correspondence sent to the claimant was short and concise asking him to a meeting to discuss matters. The claimant’s correspondence in return was lengthy, confrontational and he escalated complaints to the CEO.

[53]Either way the meeting did not happen. Neither Ms Charles, Ms Wills-Eversley or anyone else seemed to chase this up at the time.

[54]On 11 November 2021 Ms Charles raised concerns with the Director of Nursing, Richard Hughes about the claimant. She explained to him they had tried to arrange a meeting twice to discuss the issues and he has refused. She says that they intend to stop the claimant’s pay if he will not attend a meeting. Our conclusion is that at this point it was accurate to say that the claimant had not engaged twice. In fact by then he had refused to attend meetings on four occasions. It’s unclear the exact basis that Ms Charles was suggesting they could withhold pay, but in any event that was not communicated to the claimant.

[55]What this email does show is that the respondent viewed the situation with the claimant as being a genuine problem. This is understandable given that the claimant had been working for over a year and there had been no discussion with him about the situation. The claimant had not attended any meetings in person or by video over that entire period. The issue was being escalated and by November the respondent was starting to consider what options they had.

[56]Based on the evidence we saw nothing then happened until February 2022. The claimant did not chase up his grievance or ask for an update on the progress or seek an outcome. Neither does he chase up his correspondence to the CEO.

[57]The next development was on 1 February 2022. Ms Charles wrote to the claimant again. She asked him to attend a meeting. This was following up on the meeting that did not happen in October 2021. It was due to take place on 2 94 February 2022. However, in this letter Ms Charles expressly stated that it was about the claimant’s return on site on 7 February 2022.

[58]As a matter of fact this was the first time there was a clear indication that the claimant was expected to return on-site and only a week’s notice was given. In that respect this letter escalated the situation. However, the context was that all previous attempts to meet with the claimant had failed with the claimant refusing to attend any meeting for a variety of reasons.

[59]It was not completely clear what triggered this letter. We heard from Ms Wills- Eversley that there had been informal complaints from doctors about how difficult it was with the claimant working from home. The Physician’s Assistant from another ward was covering a lot of the claimant’s work which was not tenable in the long term.

[60]We also note for completeness, there had been no Occupational Health referral since the report in July 2021. The respondent had not asked for one, but neither did the claimant provide any update on his health and what his specialist said about working from home or returning to work on site. From what we could see, the claimant did not seem to think he needed to provide any update.

[61]The claimant did not attend the meeting on 2 February 2022. He partly said this was because he had a pre-arranged appointment and he had only received the email on 1 February 2022 after he had finished work. However, he did not offer to reschedule for later or a different day. We also note again that the claimant was working on 2 February 2022 and the meeting was arranged during his working day and he had the option to attend via video.

[62]The claimant sent an email to Ms Charles on 4 February 2022 complaining that the respondent was in breach of the Equality Act 2010 and failing to make reasonable adjustments. The email from the claimant again is confrontational and he said he had escalated matters to the CEO.

[63]On 4 February 2022 the claimant also sent a letter described as “Petition to resolve unfair treatment and comply with an obligation under the EqA 2020” to the respondent’s CEO. This repeated similar complaints and sets out why he says he is disabled under the Equality Act 2010. He says he is not fit to return on site. He also complained his grievance had not been resolved. This was copied to Ms Charles and Ms Wills-Eversley.

[64]The claimant did not return to work that week. Ms Charles sent the claimant another invitation on 8 February. This was to attend a meeting on 11 February. This was just to discuss his return to onsite working. There was no date suggested for his actual return or even indication at this point that there was an expectation. However, Ms Charles did expressly state that this was a reasonable 95 management instruction and if the claimant did not attend the meeting then the matter may be escalated.

[65]Ms Pacetti was in contact with Ms Wills-Eversley about the claimant and she told Ms PAcetti that a meeting would be held and if the claimant did not return to work on site then action would be taken. This meant that Ms Pacetti expected that the claimant would be back on site on 11 February 2022.

[66]On 10 February Ms Charles sent the claimant a further letter about the grievance. She said they could arrange a meeting to progress the grievance when they met on 11 February 2022.

[67]The claimant responded to Ms Wills-Eversley to say he was happy to proceed. However, On 10 February 2022 the claimant sent another lengthy letter to Ms Charles saying he could not attend the meeting because he had diarrhoea. This letter is also lengthy. In it the claimant objects to the meeting generally and repeats similar complaints. He also states expressly in this letter he is getting ACAS involved. He had started Early Conciliation the day before on 9 February 2022.

[68]The claimant has suggested that he would attend a meeting and never refused. While he says he will proceed with a meeting in the email to Ms Wills-Eversley on the same day he sends another long confrontational letter to Ms Charles. We found that the correspondence to Ms Charles reflected his true feelings and we concluded that the claimant was not actually willing to attend a meeting and would not engage in any discussions. We also find that the instruction to attend a meeting, which could be remotely and was arranged during the claimant’s working day, was a reasonable management instruction. The claimant was refusing to comply with this instruction. By February there was a clear pattern of the claimant refusing to actually attend any meeting and finding reasons to avoid doing so.

[69]On 11 February 2022 Ms Charles wrote to the claimant inviting him to a rearranged meeting on 14 February 2022. In this she also noted that she wanted to discuss moving him to a different work area until his grievance had been concluded. She expressly stated that he was required to attend the meeting and it was a reasonable management request and if he did not attend it would be recorded as unpaid unauthorised absence.

[70]On 11 February 2022 Ms Pacetti had expected that the claimant would be working back on the ward. Ms Pacetti wrote the claimant’s name down as being on the ward on the rota. We accepted her explanation that she did this as she was expecting him back. Due to the grievance Ms Pacetti was no longer in direct contact with the claimant and this is what she had been told. She also explained she was not due to be in that day and she wanted to make sure others knew to expect him. 96

[71]Somehow the claimant got hold of a copy of that rota. The claimant did not explain how this happened. On 14 February the claimant sent another letter to Ms Charles complaining about being included on the rota. He also complains about Ms Charles and asks that she stops communicating with him until matters are resolved.

[72]Ms Charles responded to suggest a meeting with her and Deputy Divisional Director of Medicine and Urgent Care. She suggests that meeting will help to clear up any confusion. The claimant again responded with a long email in which he said that he had lost confidence in being treated fairly. He refused to attend the meeting Ms Charles had proposed with Deputy Divisional Director of Medicine and Urgent Care.

[73]We also note that the meeting that had been due to attend on 14 February 2022 also did not happen.

[74]On 7 March 2022 Ms Charles sent the claimant a lengthy letter inviting him to another meeting. The meeting was due to be held on 21 March 2022, so the claimant had 2 weeks’ notice. In this letter Ms Charles set out clearly what she wanted to discuss. She stressed that there was no decision about him returning on site but they would discuss his duties, what could be done to ensure he was safe when returning and any risk assessment. She also noted they had no up to date medical information as he had last been reviewed in July 2021. She stated that his grievance would be dealt with separately.

[75]The claimant responded to this letter on 15 March 2022. He starts by stating “I am astonished by your hard-line stance and the approach you have taken on the subject”. Our finding is that Ms Charles’ letter was reasonable in its contents and tone. By this point the respondent had been trying for nine months to arrange a meeting with the claimant to discuss his working arrangements. Each time the claimant objected and gave reasons he would not attend. Sometimes he gave practical reasons given, such as ill-health or conflicts with pre-arranged appointments. Other times he objected in principle and raised complaints.

[76]We find again the claimant’s response was lengthy and confrontational. He complained about his grievance not being dealt with before discussing his return to work onsite. He complained about Ms Charles and a number of other matters. The meeting arranged for 21 March 2022 did not go ahead.

[77]The claimant was then referred to Occupational Health. This was suggested by claimant’s trade union representative. The claimant had submitted his claim to the Tribunal on 14 April 202. He was sent the invitation to the Occupational Health appointment on 20 April 2022. The report was dated 1 June 2022. There was no evidence that the claimant objected to this referral at the time. On the contrary, the referral had been instigated on his behalf. 97 Miscellaneous findings of facts

[78]Below we set out some general findings of fact about matters that either do not directly fit into the chronology or apply to the case as a whole.

[79]The first relate to the claimant’s job itself. We have made some findings about this and the respondent’s concerns about the feasibility of it being done remotely. The claimant essentially asserts that he could do enough of his job that he could wholly work from home without difficulty. In her witness statement Ms Pacetti said only about 20% could be done from home, though she accepted this may not be completely accurate.

[80]Even though this situation continued over several years, and appears to be ongoing, from what we saw no proper analysis has ever been carried out by the respondent into this issue. There was also little evidence in terms of contemporaneous documents of either what the claimant was actually doing from home or problems that the respondent said arose.

[81]In terms of what did happen, we also reiterate our following findings: 81.1. When the claimant first started working from home in October 2020 there was no return to work meeting to discuss the situation or reach an agreement about what the claimant would do and how it would work in practice. 81.2. While the claimant worked from home the contact between him and his manager, Ms Pacetti, was very informal. It was mainly via Whatsapp. There were no regular telephone calls of video calls to discuss the situation. Neither were there were any 1:1s or appraisals or similar type of regular meetings. 81.3. We concluded Ms Pacetti did not really know what the claimant was doing while working from home. He was left to just get on with it and had very little day to day management or instruction. Effectively everyone just muddled along without any consideration about whether it was working in practice.

[82]We have considered the job descriptions and the evidence we heard. What is clear to us from the job descriptions and the evidence from Ms Pacetti and Ms Charles is that Physician Assistants are part of the clinical staff on the ward and this was the purpose of the role. There is a quite a lot of administrative work involved, because the Physician Assistant does the administrative work to free up the doctors’ time. This is not the role’s primary purpose. The Physician Assistant is part of a team and works on a day to day basis with other clinical staff (doctors, nurses and HCAS, plus others within the hospital) and with 98 patients. There are requirements in terms of clinical qualifications which would not be necessary if the role was an administrative role. We accepted it is inherent within the nature of that type work that the default position is that this is a role that is undertaken in a certain location, i.e. based on a ward.

[83]Because there was no through analysis of the situation we are unable to make a definite finding of how much of the role the claimant was actually doing in practice when at home. However, we accepted that due to the practicalities it is obvious there were certain aspects of his role that he just could not do remotely and those duties would be covered by others while the claimant was working from home.

[84]We also accepted that the respondent had genuine concerns about the impact of the claimant remaining at home. It would have been useful if there had been more contemporaneous evidence of this, such as internal complaints. However, we accepted the evidence of all three witnesses that concerns were being raised and we accepted that this was probably verbal. We also accepted that another Physician Associate was providing cover for a lot of what the claimant would usually do.

[85]In terms of the claimant’s medical condition, it was accepted that due to the claimant’s heart condition he was at greater risk from infection including Covid due to being clinical vulnerable.

[86]The only medical evidence we actually had was the OH reports, the last relevant one was from July 2021. Those indicated that the claimant’s specialist said he should ideally work from home. We cannot make any further findings of fact on the claimant’s vulnerability because the claimant provided no further evidence. We did not see the actual specialist reports so we were provided with no further evidence on the extent of the claimant’s vulnerability. Neither were we provided with any updated medical evidence, e.g. from late 2021 or 2022. This means we are unable to make any findings on whether as a matter of fact the claimant would have been at risk if he returned to work on the ward in early 2022.

[87]We also heard a lot in cross examination of all witnesses about risk assessments and what would be required. Much of this related to later events that post-date the events leading to this claim. However, it was illustrative of what the situation was at the relevant time and from this we make the following findings of fact: 87.1. Occupational Health mentioned doing a risk assessment before the claimant returned to working on site. At no point was there any express recommendation about any particular type of risk assessment. The advice was pretty generic and self-evident that the respondent should do this to ensure the claimant was not put at unnecessary risk. 87.2. The respondent is a large hospital. It is a healthcare setting and the ward where the claimant worked was an acute ward taking in new admissions. 99 We accepted that as a matter of practice the respondent would have infection control measures in place. This is an inherent part of what they must do and there was no evidence to suggest that they were failing in any way in this respect. We also accept the respondent’s evidence that at the time there was additional general national guidance on Covid and infection control. 87.3. The consequence of this is that there would already have been risk assessments in place about Covid and infection control on the ward where the claimant worked. 87.4. The respondent said that in the meetings they were trying to arrange one of the things to be discussed was risk and they would carry out an assessment of what else may need to be done to minimise the risk to the claimant on the ward. The claimant’s manager was a nurse who worked in a setting where infection control was paramount. We accepted as a matter of fact that she was in a position to carry out a suitable risk assessment. 87.5. We also note was possible that it would have been impossible to adequately reduce the risks to the claimant if he returned to working on the ward. Due to the lack of meetings it was not possible for any discussion on this to actually happen.

The Law

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

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

[89]In Pnaiser v NHS England

[2016] IRLR 170

, the EAT provided guidance as to the correct approach to a claim as follows:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. 100

(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises…

(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act…the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton

UKEAT/0149/14

a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of 101 Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her subjection, and indeed paragraph 34 highlights the difference between the two stages – the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability.

(h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15.

(i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment. “

[90]The correct approach to a claim was summarised by the Court of Appeal in City of York Council v Grosset

[2018] IRLR 746

. “36. On its proper construction, section 15(1)(a) 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. 37.The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something" ... 38.The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something" ….”

[91]The meaning of ‘unfavourable treatment’ was considered by the Supreme Court in Trustees of Swansea University Pension and Assurance Scheme v Williams

[2019] ICR 230

(at para 27): ‘… in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and 102 analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.’

[92]It is then necessary to look to the employer’s defence of justification. S.15(1)(b) EqA provides that the unfavourable treatment may be justified, if it is a proportionate means of achieving a legitimate aim. To be proportionate, the conduct in question must be both an appropriate means of achieving a legitimate aim and a reasonably necessary means of doing so (Allonby v Accrington & Rossendale College & Others

[2001] ICR 1189

CA).

[93]Justification requires the Tribunal to conduct an objective balancing exercise between the discriminatory effect and the reasonable needs of the employer (Ojutiku v Manpower Services Commission

[1982] ICR 661

and Land Registry v Houghton & Others

UKEAT/0149/14

). It will be relevant for the Tribunal to consider whether any lesser measure might have achieved the employer's legitimate aim (Naeem v Secretary of State for Justice

[2014] ICR 472

[94]The time at which justification needs to be established is the point when the unfavourable treatment occurs (Trustees of University Pension and Assurance Scheme v Williams

[2015] ICR 1197

EAT]). When the putative discriminator has not considered questions of proportionality at that time, it is likely to be more difficult for them to establish justification, although the test remains an objective one (Ministry of Justice v O'Brien [2013] UKSC). Failure to make reasonable adjustments (section 20-21 Equality Act 2010)

[95]Section 20 of the Equality Act 2010 provides:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty imposes 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 relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage… The second and third requirements are not relevant for this case.

[96]Section 21 EqA 2010 provides that a failure to comply with the first requirement is a failure to comply with a duty to make reasonable adjustments, and further 103 that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[97]The EAT in Environment Agency v Rowan

[2008] ICR 218

held that an employment tribunal considering a breach of the duty to make reasonable adjustments (under the then-current DDA 1995), must identify:(a) the provision, criterion or practice applied by or on behalf of the employer; or

(b) the physical feature of premises occupied by the employer;

(d) the nature and extent of the substantial disadvantage suffered by the claimant. This guidance continues to apply to claims brought under s. 20 – 21 EqA 2010 (see e.g. Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins

[2014] ICR 341

at [29] – [30], where the EAT also noted that it is necessary for the ET to identify the “step” or “steps” that the employer should have to take to avoid the disadvantage).

[98]The Court of Appeal in Ishola v Transport for London

[2020] ICR 1204

has given detailed guidance as to the meaning of the phrase “provision, criterion or practice”: “35. The words "provision, criterion or practice" are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words "act" or "decision" in addition or instead. As a matter of ordinary language, I find it difficult to see what the word "practice" adds to the words if all one-off decisions and acts necessarily qualify as PCPs…36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones' approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply. 104

37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.

38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010 , all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.”

[99]In considering whether the application of a PCP places a disabled person at a substantial disadvantage: “one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able bodied” Griffiths v Secretary of State for Work and Pensions

[2017] ICR 150

[100]In considering whether an employer has complied with the duty to make reasonable adjustments, the focus must be on the practical steps that can be taken to alleviate the substantial disadvantage suffered, rather than the process by which a decision is reached, or the information obtained in reaching that decision. See on this point Royal Bank of Scotland Plc v Ashton

[2011] ICR 632

, and in particular the quotation from Spence v Intype Libra Ltd at (reference to section 4A is to the predecessor Disability Discrimination Act 1995): “The nature of the reasonable steps envisaged in section 4A is that they will mitigate or prevent the disadvantages which a disabled person would otherwise suffer as a consequence of the application of some provision, criterion or practice … The duty is not an end in itself but is intended to shield the employee from the substantial disadvantage that would otherwise arise. The carrying out of an assessment or the obtaining of a medical report does not of itself mitigate or prevent or shield the employee from anything. It will make the employer better informed as to what steps, if any, will have that effect, but of itself it achieves nothing.” 105

[101]Pool of comparators: has there been a substantial disadvantage to the disabled person in comparison to a non-disabled comparator? Archibald v Fife Council

[2004] UKHL 32

[2004] IRLR 651

[2004] ICR 954

: the proper comparators were the other employees of the council who were not disabled, were able to carry out the essential functions of their jobs and were, therefore, not liable to be dismissed.

[102]While it is not a breach of the duty to make reasonable adjustments to fail to undertake a consultation or assessment with the employee (Tarbuck v Sainsburys Supermarkets Ltd), it is best practice so to do. The provision of managerial support or an enhanced level of supervision may, in accordance with the Code of Practice, amount to reasonable adjustments (Watkins v HSBC Bank Plc

[2018] IRLR 1015

)

[103]The adjustment contended for need not remove entirely the disadvantage; the DDA says that the adjustment should 'prevent' the PCP having the effect of placing the disabled person at a substantial disadvantage. Leeds Teaching Hospital NHS Trust v Foster UK EAT /0552/10, [2011] EqLR 1075: when considering whether an adjustment is reasonable it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage— there does not have to be a 'good' or 'real' prospect of that occurring. Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

(Sep) - 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'.

[104]The test of 'reasonableness', imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly. Lincolnshire Police v Weaver

[2008] All ER (D) 291

(Mar): it is proper to examine the question not only from the perspective of a claimant, but that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer.

[105]The EHRC Code includes examples of adjustments which may be reasonable:a. making adjustments to premises

b. allocating some of the disabled person's duties to another worker

c. transferring the worker to fill an existing vacancy

d. altering the worker's hours of working or training

e. assigning the worker to a different place of work or training or arranging home working

f. allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment

g. acquiring or modifying equipment

h. providing supervision or other support. Harassment – Section 26 Equality Act 2010

[106]Under section 26 Equality Act 2010 106 (1) a person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[107]With a claim for harassment the claimant must prove on the balance of probabilities that the conduct he has complained of occurred.

[108]The test of whether the conduct amounted to harassment is part objective and part subjective. The Tribunal must take into account the claimant’s subjective perception but it is also required to look at that objectively to see if it was reasonable for the claimant to have considered his dignity to be violated or that it created an intimidating, hostile, degrading, humiliating or offensive environment.

[109]In Grant v HM Land Registry

[2011] EWCA Civ 769

the Court of Appeal said that: “Tribunals must not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive environment”. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[110]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

the EAT stated: “Dignity is not necessarily violated by things said or done which are trivial and transitory, particularly if it should have been clear that any offence was unintended. While it is also important that employers ,and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” 107

[111]Whether or not the conduct is related to a protected characteristic is a matter of fact for the Tribunal drawing on all the evidence before it.

Discussion and conclusions

[112]The claimant has brought claims for discrimination arising from a disability, harassment and failure to make reasonable adjustments. Some of the factual allegations overlap.

[113]We first address the claim that there had been a failure to make reasonable adjustments. The reason for this is that this issue to a large extent forms the context for everything that occurred. Failure to make reasonable adjustments

[114]The claimant said that the following are the relevant provisions, criteria or practices (“PCPs”). 114.1. the respondent’s general requirement of staff to work on-site rather than from home; and/or 114.2. the respondent’s Attendance Policy, which addresses the sickness absence of its staff members.

[115]These are both PCPs and they broadly apply to all employees of the respondent in general.

[116]The attendance policy is a PCP that would apply to the claimant. Had the claimant been absent it may have been applied. However, as a matter of fact the respondent did not follow any procedures under this policy in respect of the claimant during the relevant time. The respondent did not hold any formal absence meetings, it did not issue warnings or impose any sanctions.

[117]There was one letter that referred to the policy in June 2021. This was an error and no further action was taken or proposed. As no action was taken under the policy against the claimant it was not applied to claimant at the relevant time as he was not signed off work. This claim does not succeed, as the claimant was not put at any disadvantage due to the PCP so the duty to make adjustments did not arise.

[118]The other PCP, the requirement to work on site, did apply broadly to the claimant. Under the claimant’s contract of his employment his workplace was on site. The role of Physician Assistant role was ward based and there was a general requirement for physician assistants to work on-site.

[119]During the period we are considering the claimant did not work onsite. He had worked from home since October 2020, when he returned to work after a period of sick leave. At no point before he submitted his ET1 did the claimant actually return to working onsite. As far as we could ascertain he had not returned to working onsite before this hearing. On this basis, adjustments were made by the respondent as he was able to continue to work from home. 108

[120]However, the claimant’s case is not just about being allowed to work from home during the time leading up to his claim. The crux of the dispute is about the respondent’s attempts to discuss with the claimant his working from home arrangements with a view to him returning to working onsite. The way that the claimant has set out the other elements of his claim for failure to make reasonable adjustments also reflects this, in that it goes beyond just what happened and considers what the respondent was seeking to do.

[121]The disadvantage the claimant says he was subjected to is as follows: “The claimant asserts that he was placed at a substantial disadvantage in that the respondent’s determination to enforce the PCP(s) upon the claimant caused him stress and anxiety, as he was concerned that his health and wellbeing would be jeopardised by the enforcement of these PCPs .”

[122]The adjustments that the claimant says are reasonable are also wider, being: “a) …that the claimant remain working from home until it is deemed safe for him to return to on-site working following a risk assessment to ensure the absence of COVID-19 from his working environment….The risk assessment must be done by a person trained and competent by the definition of the HSE… b) …. Making a proactive and positive approach to providing assistance to the claimant to allow him to continue working from home or a hybrid working on-site and flexible working”

[123]We considered what was said to be a disadvantage. It is not completely clear how the disadvantage, as put forward by the claimant, is due to the PCP of the respondent requiring employees to work on site. As expressed in the list of issues it appears to combine different complaints. It can be broken down into the following elements, which are distinct: 123.1. Due to the claimant’s heart condition he had concerns about his health and wellbeing if had to work onsite. This is understandable because the claimant was clinically vulnerable due to his heart condition. 123.2. The claimant is also complaining about being at a disadvantage due to stress from what he says is the ‘determination to enforce the PCP on him’. This appears to relate to the process the respondent followed in trying to hold discussions with the claimant. It is essentially the anticipation of having to return to working onsite that the claimant says is a disadvantage. It is the potential implication of onsite working that the claimant says caused stress. This is different to the more obvious disadvantage of the risk of exposure to infection if the claimant was onsite. It is the process that potentially placed the claimant at the disadvantage of becoming stressed.

[124]Looked at this way, the PCP the claimant says put him at a disadvantage is not the one he identified of the requirement to work on site. It is the anticipation of returning on site, or the process of discussing his return, that the claimant says puts him at a disadvantage. The claimant complains about the “determination to 109 enforce the PCP”. This is what he says is the cause of the disadvantage.

[125]When looked at in this way we have reached the following conclusions: 125.1. There was a PCP of a general requirement of staff to work on-site. At the relevant time this was only applied to claimant the extent that the respondent proposed that the claimant may be required to return onsite in due course and they wanted to discuss his working arrangements with him. 125.2. Due to the claimant’s health a requirement to return to working onsite could place him at a disadvantage because he was more vulnerable to infection. There would be a duty on the respondent to make adjustments to alleviate the disadvantage of exposing the claimant to risk of infection. 125.3. While there were many attempts to discuss returning to onsite with the claimant it was not as a matter of fact enforced. At no point was any instruction issued to the claimant to cease working from home and return to the ward. In fact, the adjustment of allowing the claimant to work from home remained in place at all relevant times. 125.4. We consider it is a misrepresentation to say there was a “determination to enforce the PCP” by the respondent. All the respondent tried to do was discuss the situation with the claimant. There had never been a discussion about the claimant working from home and whether it was viable in the long term. This is because situation had arisen organically as a result of the unusual circumstances in 2020. 125.5. The claimant says that the PCP of requiring staff to work on site caused him stress. This PCP was not actually applied to the claimant. All the respondent required was the claimant to attend a meeting, either in person or by video, to discuss the situation. 125.6. Finally, we note that the claimant has asserted this caused him stress and this is the disadvantage. The claimant has not provided any evidence of stress. He refers to it in passing in some of his correspondence, but there was no evidence provided by the claimant in support of this argument.

[126]Looked at in these terms the claimant’s claims for reasonable adjustments do not succeed because the PCP of working on site was not applied to the claimant at the relevant time. Instead he was able to continue working from home, so reasonable adjustments were made at all relevant times. There was no failure to make adjustments.

[127]For completeness, we have also looked at the adjustments the claimant says should have been made. In the list of issues the claimant says the following would be reasonable adjustments: 127.1. The reasonable adjustment the Claimant expected (and continues to expect) is to follow the recommendation of the Claimant’s Occupational 110 Health (06 May 2020, 27th October 2020, 21 April 2021, 19th April 2021, 02nd June 2021, 28th July 2021) that the Claimant remain working from home until it is deemed safe for him to return to on-site working following a risk assessment to ensure the absence of COVID-19 from his working environment. The risk assessment must be done by a person trained and competent by the definition of the HSE, including necessary personal protective equipment.”

[128]This includes a number of different elements. These are as follows: 128.1. the respondent should follow the Occupational Health Advice from 2020 and 2021; 128.2. the claimant should stay working from home until it is deemed safe; 128.3. a risk assessment should be undertaken to ensure COVID-19 is completely absent; and 128.4. the risk assessment must be done by someone with specifid training and competencies.

[129]What it all essentially comes down to is the claimant saying that the respondent should have let him work from home indefinitely without any discussion until he says he is ready to attend a meeting. He also seems to be saying that the respondent should not event try and discuss his return to work until the claimant is satisfied that there is zero risk of COVID-19 exposure, with various additional caveats.

[130]When looked at this way the adjustments that the claimant seems to be seeking are not reasonable. What the claimant wanted was to be the sole arbiter of how long he continued to work from home and when he may return to the workplace. This is not reasonable. An employer needs to be able to discuss workplace arrangements with an employee and review whether or not they work in practice. In the claimant’s case this had not happened at any point, because of the unusual circumstances when he stared to work from home. It would also seem very unlikely that the claimant’s condition, of zero COVID before any discussion, could ever be met.

[131]The claimant also seemed to be expecting a very particular type of risk assessment, that was not identified within any Occupational Health report. Again, this demand is not reasonable in the circumstances. The respondent workplace was a medical setting and there were already hospital wide risk assessments and protocols in place about infection control. We also accepted that once the respondent was able to meet with the claimant to discuss a return to the workplace there would be further discussion about the risks and what else needed to be in place to minimize the risk to the clamant. It would not be reasonable for the claimant to demand something different and bespoke that was undertaken in advance before he would even meet with the respondent to discuss the situation.

[132]The claimant is also effectively seeking as an adjustment for his role to become 111 permanently home based. He said as an adjustment the respondent should have proactively allow the claimant to continue working from home or a hybrid of working on-site and flexible working.

[133]The role itself was ward based so moving to completely home based would be a significant change. Sometimes such a change can be a reasonable adjustment. Following the pandemic it has been quite common practice for some people to continue working from home, as it has worked in practice and the transition was simple. We have concluded this was not one of those cases and it would not be a reasonable adjustment to convert the claimant’s role to fully home based without any discussion for the following reasons: 133.1. We concluded that at no point had the respondent undertaken any review or analysis of how much of the claimant’s role could be done remotely. 133.2. We were satisfied that the respondent had been experiencing practical difficulties due to the claimant working from home and they had genuine concerns about the feasibility of the arrangements. 133.3. We also looked at the claimant’s role and were satisfied that significant responsibilities of were ward based. The purpose of the role was to be on the ward working with other clinical staff and patients. Changing the role to completely remote would change the function of the role to one that is purely administrative.

[134]In terms of the other aspect of this adjustment, the claimant says the respondent should “pursuant to Respondent’s disability policy making a proactive and positive approach to providing assistance to Claimant to allow him to continue working from home or a hybrid of working on-site and flexible working”.

[135]It was not clear to us what is the claimant was actually saying the respondent ought to have done. As we have noted, the claimant did continue to work from home. The respondent was being proactive in trying to discuss the arrangements with the claimant. If discussions had happened this could have included alternative options or hybrid options, as the claimant suggests. No discussions happened because of the claimant’s refusal to engage with the respondent. It would not be reasonable to expect the respondent to make different arrangements without first having had any discussion with the claimant.

[136]To conclude, our finding is that there was a duty to make adjustments to the claimant to ensure that his risk of being exposed to covid was minimised. For the entire period we were concerned with adjustments were in place because the claimant continued to work from home. At no point did the respondent instruct the claimant to return to the ward. All the respondent did was try and discuss the situation with the claimant to start the process of returning in the future. Allowing the claimant to work from home indefinitely with no review or discussion would not be a reasonable adjustment.

[137]The claim for failure to make reasonable adjustments does not succeed. 112 Discrimination arising from a disability (section 15 Equality Act 2010) and Harassment related to disability (section 26 Equality Act 2010)

[138]The claimant has made a number of allegations which are very similar in nature which he says are either discrimination arising from a disability, harassment or, in most cases, both. Some factual allegations were set out multiple times, with slightly different wording.

[139]We have addressed below the allegations in broadly chronological order by reference to the following categories of allegations: 139.1. Ms Pacetti’s letter of 8 June 2021 and complaints about the use of the attendance/sickness policy (both s.15 and s.26); 139.2. allegations about the lack of risk assessment as advised by Occupational Health recommendations (both s.15 and s.26); 139.3. general allegations of a requirement that the claimant return to on-site before a risk assessment (s.15 only); 139.4. allegations about the letter dated 1 February 2022 with a return date of 7 February 2022 (harassment); 139.5. allegations about failing to deal with the claimant’s grievance in a timely manner (s.15 only); 139.6. allegations about Anna-May Charles writing to the claimant about a meeting on 11 February 2022 and the consequences of non-attendance (both s.15 and s.26); 139.7. including the claimant’s name on a staff rota on 11 February 2022, the same day as his scheduled return to work meeting (both s.15 and s.26) 139.8. allegations that the respondent failed to inform the claimant of his right to be accompanied by a union representative at meetings (both s.15 and s.26); and 139.9. referrals to Occupational Health (s.26 only). Preliminary Findings relating to discrimination arising from disability

[140]To succeed with any claim under s.15 Equality Act 2010 the claimant must show the respondent has treated him unfavourably. He must also show that this was because of something that arises in consequence of his disability.

[141]For the purpose of these claims the claimant says that the ‘something’ was his need to work from home until his physical working environment is declared safe, following a detailed risk assessment.

[142]On this ‘something’, it is not clear from the evidence that this ‘something’ applied as described by the claimant. It was essentially the claimant’s position that there were specific requirements that needed to be met before he could contemplate 113 returning to work. This was not supported by the medical evidence provided by the claimant. There were only two Occupational Health reports and no medical evidence after July 2021. The second Occupational Health report only said that the claimant should ‘ideally’ continue to work from home. What is less contentious is a more limited ‘something’ which is the claimant’s need to work from home due to his clinical vulnerability.

[143]In relation to the ‘something’, we note that as a matter of fact during the entire period we are concerned with the claimant was fit to work and was doing so from home. There was no reason he was unable to attend a hearing from home by way of video. The only potential issue was having to be in the workplace in person where he may then be exposed to Covid.

[144]Before we consider the claimant’s specific claims we have decided to deal with the issue of justification. Running throughout the entire case is a common thread that respondent was trying to speak with the claimant to discuss his working arrangements, including his possible return to working on-site. We accepted that the respondent had genuine concerns about the practicality of the claimant working from home. We reiterate the following findings: 144.1. Before lockdown the claimant was ward based. All other physician associates remained ward based. 144.2. There was no change to the claimant’s physician associate role that lead meant it became a role that was done remotely. The claimant’s arrangements had arisen in response to the combination of the claimant’s ill-health and the pandemic. There had been no process before the arrangements were put in place to review how it would work in practice. Neither had there been any review process to see if the arrangements were practical. 144.3. There were adverse impacts as a result of the claimant working from home. The other physician associates were covering aspects of the claimant’s role that he could not do remotely. The claimant’s manager was also not sure what he was doing much of the time.

[145]Ensuring it can manage its workforce and that any working arrangements are fit for purpose would be a legitimate aim. Broadly, this was what the respondent was trying to do. We are satisfied that the respondent had a legitimate aim when it was trying to discuss the claimant’s working arrangements with him with a view to either move towards his return to working on-site or put in place other arrangements.

[146]This legitimate aim applies across the case. The questions for us to determine are: 146.1. whether anything the respondent did in trying to further this aim was unfavourable treatment of the claimant; 146.2. if so, did it arise out of the claimant’s disability; and 114 146.3. was any unfavourable treatment a proportionate means of achieving that aim. Ms Pacetti’s letter of 8 June 2021 and complaints about the use of the attendance/sickness policy (both s.15 and s.26)

[147]The claimant has set out the allegations relating to this in the following ways: 147.1. from 8 June 2021 Barbara Pacetti subjecting the claimant to the Attendance Policy when the Claimant was not absent from work and was working from home; 147.2. Barbara Pacetti using the respondent’s sickness policy on the claimant when it was not applicable. Barbara Pacetti convening an absence review meeting on 8th June 2021 and proceeding with case review proceedings despite unsubstantiated allegations

[148]The claimant has said that both were unfavourable treatment arising out of his disability and the first allegation also amounts to harassment. For the section 15 claim the claimant relies on the same ‘something’ described above.

[149]A letter was sent to the claimant on 8 June 2021 stating it was under the absence management policy. We accepted that this was sent in error and that was rectified immediately. No meeting was ever held under that the sickness policy or attendance policy. Nothing the respondent did after 8 June 2021 was with reference policy and no action was taken against the claimant under any such policy.

[150]Ms Pacetti did then try to arrange a case review. This was not under any attendance policy or sickness policy. The claimant says that there were ‘unsubstantiated allegations’ but this is incorrect, no allegations were made. It was always clear, after the initial error was rectified, that what Ms Pacetti wanted to discuss was the situation in general.

[151]The only thing that could be seen as unfavourable treatment was the first letter. This was an isolated incident and was rectified immediately. The claimant was not then subjected to action under any policy.

[152]For the harassment claim, the letter could be viewed as unwanted conduct. It also related to the claimant’s disability as his working arrangements were in place as an adjustment. We can see how it would be upsetting to be told that absence management procedures were starting when in the claimant’s circumstances.

[153]When looked at in context, it is just the first letter that referred to the attendance policy. The claimant’s allegation he was subjected attendance policy. This is not what happened. Again, we note the letter itself was an isolated incident that was an error and quickly rectified. At that time the claimant had been signed off work for a period of time before returning to work but staying at home. No meeting had been held to discuss the situation. The contents of the letter make it clear that what Ms Pacetti wanted an informal discussion about the claimant’s working arrangements and the simple fact that shielding had ended. 115

[154]The claimant has not shown he was subjected to the attendance policy. Looked at objectively we find that the letter itself it does not meet the definition of harassment.

[155]For completeness, if the letter itself was unfavourable treatment or harassment we find it was an isolated incident, given that no action was taken under the policy. Any claim about this letter would be significantly out of time and given that it was an isolated incident made in error that was immediately rectified it would not be just and equitable to extend time. Allegations about the lack of risk assessment as advised by Occupational Health recommendations (both s.15 and s.26);

[156]The specific allegation is that the respondent did not conduct the required risk assessments and reasonable workplace adjustment as per Occupational Health recommendations set out in the OH letters dated 21 April 2021 and 28 July 2021 but insisting on the claimant’s return at all costs.

[157]The claimant says that this is both unfavourable treatment arising out of disability and harassment related to disability.

[158]We have concluded that this was not the case. There was no requirement set out in the Occupational Health report to carry out any specific type of risk assessment. The Occupational Health reports said to that the claimant should ideally be allowed to work from home. This is what happened, and at no point did the claimant actually return to work.

[159]The first Occupational Health report said a risk assessment should be carried out but it did not specify any particular type. There was no direction that any particular experience training was required by whoever did the risk assessment. This recommendation was generic. This recommendation was not repeated in the later report.

[160]We concluded that there were risk assessments in place generally in any event. The claimant’s workplace was a hospital which inevitably had in place risk assessments and practices to ensure infection control. His managers were nurses so experienced and trained in such matters.

[161]The claimant had been repeatedly told that any risks would be discussed at the meetings the respondent was trying to arrange before he returned to work. In June 2021 the claimant had asked Ms Rose if a risk assessment had been done. She informed him all his queries would be discussed at the meeting, making it clear that risk assessments would be discussed when a meeting took place. No actual risk assessments were carried out because the claimant did not attend any of the meetings arranged by the respondent.

[162]In summary, there was no separate requirement on the respondent to do a risk assessment. The claimant’s allegation that there was a failure by the respondent to do one misrepresents what was required.

[163]As part of this allegation the claimant has said that the respondent insisted the 116 claimant return “at all costs”. This was not the case. At all times the respondent simply tried to arrange meetings with the claimant to discuss with him his working arrangements with a view to him potentially arranging. The claimant continued to work from home at all relevant times.

[164]The consequence of these findings is that the claim for unfavourable treatment arising from a disability fails for the following reason: 164.1. There was no requirement in the Occupational Health reports for the respondent to carry out a risk assessment that was separate from any general discussions when the claimant returned to work on-site. No assessment needed to be done as a precursor to discussions. 164.2. To the extent that any risk assessment did not take place it was not because of the claimant working from home. It was because the claimant would not engage in any discussions with the respondent or attend meeting. This lack of engagement meant the respondent was never able to discuss the risks with the claimant.

[165]The claimant has also not proved that the conduct he describes as harassment occurred. There was no requirement to carry out a particular type of risk assessment and there was no insistence that he return at all costs. This allegation misrepresents what occurred. The claimant has not shown that the unwanted conduct occurred as he has described so the claim for harassment does not succeed. Allegations of a requirement that the claimant return to on-site before a risk assessment (s.15 only);

[166]The claimant says that the respondent treated him unfavourably by requiring him to return to on-site working before a risk assessment on the following occasions: 166.1. 18 June 2021, via letter dated 8 June 2021 from Barbara Pacetti; 166.2. 7 February 2022, via a letter dated 1 February 2022 from Anna-May Charles; 166.3. 11 February 2022, via a letter dated 8 February 2022 from Anna-May Charles; and 166.4. 21 March 2022, via a letter dated 7 March 2022 from Anna-May Charles.

[167]We concluded the claimant was not required to return to on-site working on the majority of those occasions. Our findings on three of the allegations are summarized as follows: 167.1. On 8 June 2021 the claimant was only invited to an absence review. He was not required to work onsite. When the claimant objected to the meeting Ms Pacetti offered to hold the meeting by Teams. In any event it did not go ahead. 167.2. The situation was the same on 11 February 2022 and 21 March 2022. 117 The letters referred to were just invitations to meetings on those dates. The claimant was not required to go on site as the meetings were to be held by Teams.

[168]In respect of these three allegations the respondent has not shown that the respondent treated him unfavourably as he has alleged. Inviting the claimant to a meeting is not the same as requiring him to return on-site.

[169]In the letter dated 1 February 2022 Ms Charles does give a definite date that the claimant is expected to return to work on-site. However, she does not require him to return on that date. In the letter Ms Charles just invites the claimant to a meeting on 2 February 2022 to discuss his return. One of the purposes of that meeting was to conduct a risk-assessment before he returned. This may not have been stated expressly in this letter, but it had been made clear in previous correspondence to the claimant that at any meeting the situation would be assessed along with the claimant’s concerns.

[170]Contrary to the claimant’s assertions, Occupational Health had not specified any particular type of risk assessment that needed to be done. We have also accepted that the respondent already had risk assessments and strategies in place about COVID and infection control. Therefore, the effect of the letter of 7 February 2022 was not to require the claimant to return to on-site working before a risk assessment was done. The letter invited him to a meeting so a risk assessment could be done first.

[171]To the extent that that a particular date for the claimant’s return was included in this letter, we have concluded that this does not in itself amount to unfavourable treatment. The purpose of the letter was to arrange a meeting. It was the first time a definite return to the workplace was indicated, but it was still clear that the respondent was seeking to have a discussion with the claimant first.

[172]Therefore as a matter of fact, he has not proved the specific unfavourable treatment occurred.

[173]For completeness, we have also reached the following conclusions in the event that the setting of a date was unfavourable treatment: 173.1. Ms Charles did not set a date because of the claimant’s vulnerability and need to work from home. She set a date because the claimant had been refusing to engage for a number of months and she wanted to take more robust action to manage the situation. 173.2. The decision to set a date was justified. We have already concluded that the respondent had a legitimate aim of trying to discuss the claimant’s working arrangements with him. The claimant had been refusing to engage with any meetings since June 2021. It was proportionate for the respondent to escalate the situation and make it clearer what their longer term intentions were and work towards a provision date when the claimant returned on site.

[174]For these reasons these claims for discrimination arising from a disability do not 118 succeed. Allegations about failing to deal with the claimant’s grievance in a timely manner (s.15 only)

[181]The claimant makes the following similar allegations of unfavourable treatment arising from a disability about the grievance:185.1 failing to deal with the Claimant’s grievance submitted on 21 September 2021 in a timely manner to date despite several appeals from the claimant; and

185.2 neglecting or refusing to respond to the Claimant's grievance submitted on 21 September 2021 but persistently requesting the Claimant to return to work on-site without medical oversight

[186]Our conclusions about the grievance process are summarised as follows:186.1 The grievance was raised on 21 September 2021. Ms Charles wrote to the claimant on 15 October 2021 to invite him to a meeting on 18 October 2021. The claimant did not attend that meeting, saying he had been on leave.

186.2 Ms Charles arranged another meeting which could be held by video on 22 October 2021. We accepted this meeting was arranged and an invitation was sent to the claimant. The meeting did not go ahead though it was not clear exactly why this was.

186.3 There were then no developments immediately after this. On 1 February 2022 Ms Charles wrote to the claimant inviting him to a meeting on 2 February 2022. In this letter she referred to the grievance and said that a separate meeting would be arranged once he was back.

186.4 On 10 February 2022 Ms Charles wrote to the claimant and said that when they met on 11 February 2022 they could discuss arranging a separate meeting about the grievance. This meeting was going to be by Teams, not in person. That meeting did not go ahead.

186.5 The grievance had not progressed any further by the point the claim was submitted.

[187]There were some delays in progressing the grievance. For the purposes of this claim we need to determine whether any delay was because of something that arose from the claimant’s disability. The ‘something’ again is the claimant’s need to work from home due to his clinical vulnerability.

[188]As we have noted, the respondent did try to meet with the claimant relatively promptly. That meeting was due to be held remotely so there was no reason the claimant’s clinical vulnerability should have affected his ability to attend. The meeting in October did not go ahead because the claimant refused to attend the first meeting and did not engage with the further attempt to arrange a meeting on 22 October 2021. 119

[189]There were then delay after, with no progress until February 2022. It is not clear why the respondent did not try to arrange further meetings in late 2021. Nonetheless, there is no evidence that the reason this was due to the claimant’s need to work from home. The meetings that were arranged were to be held remotely, so the claimant working from home was not a barrier. We have concluded a more likely explanation is the fact that the claimant repeatedly failed to engage with any meetings with the respondent. By this point it was a consistent pattern, which is noted in internal the respondent’s internal correspondence from November 2022. It was the claimant’s failure to engage that had already prevented the initial meetings going ahead. We have concluded that any delay in dealing with the grievance process was not due to the claimant’s need to work from home or clinical vulnerability, but was triggered by his own refusal to engage in any meetings with the respondent. Therefore the delay does not arise out of his disability.

[190]For this claim, the claimant has also said that the respondent did not deal with his grievance but persistently requested that he return to work on-site without medical oversight. We have concluded that it was not true that the respondent persistently requested his return ‘without medical oversight’. All the respondent tried to do was meet with the claimant to discuss the situation and whether he could return on-site. It never got to the point that he was instructed to return due to the claimant refusing to attend any meetings.

[191]Finally, although we find that any delay was not discriminatory, we also find that if it were then it would be justified. We have already said the respondent had a legitimate aim of trying to discuss the claimant’s working arrangements with him. We find it was proportionate for the respondent to try and have discussions about the situation itself before or alongside any discussion about the grievance, given the lack of engagement by the claimant over many months and the possibility that the grievance about the same issues could form an additional barrier to legitimate discussions. Allegations about the letter dated 1 February 2022 with a return date of 7 February 2022 (s.15 and s.26); 175. The claimant complains that it was unfavourable treatment arising out of a disability when he was sent a letter on 1 February 2022 demanding the Claimant’s return to on-site working without dealing with the Claimant’s grievance submitted on 21 September 2021 176. The claimant also complains of harassment in relation to the letter dated 1 February 2022. He says this was by Nicola Wills Eversley on behalf of Anna May Charles fixing a firm date for return on 7 February 2022. 177. The claimant was sent a letter on 1 February 2022 that included a return to site date of 7 February 2022. In this letter the claimant’s grievance was acknowledged and the respondent advised that this would be progressed when on site. 178. We find that it is a misrepresentation to describe this this letter as a demand that the claimant return without dealing with his grievance. Again, by sending the 120 letter the respondent was trying to arrange to meet with the claimant. The attempts have been stepped up from previous attempts by specifying a date for return, so the respondent was making its intentions clearer. However, it is not a demand that he returns. The letter invites the claimant to a meeting to discuss his return at a later date. 179. To the extent that the letter is unfavourable treatment, again we have concluded that this does not arise out of the claimant’s disability. The respondent was arranging the meeting because the claimant had previously not engaged with attempts to discuss his working arrangements. It was the claimant’s conduct and reluctance to discuss matters with the respondent that was the reason that the matter was escalated. 180. We also note that the claimant’s complaint appears to be that his grievance had to be dealt with before any discussions could be had about his return to on-site working. Although there had been some delays with the grievance, the respondent was not obliged to put on hold discussions about the claimant’s working arrangements while the grievance was dealt with. They were two separate processes and could run concurrently. On this, we also note that we have found that the claimant’s reaction to the respondent’s attempts to discuss his working arrangements was often confrontational and the grievance itself was similar, in that it could be seen as the claimant creating a further barrier to his return. 181. In the event that the letter was discriminatory, we have also found that the respondent had a legitimate aim in trying to hold a meeting with the claimant to discuss his working arrangements. We also find it was proportionate for the respondent to escalate by setting a proposed return date by February 2022. 182. For these reasons the claim for discrimination arising from disability does not succeed. 182. This letter alongside a proposed return date was unwanted by the claimant. Up until that point the respondent had nots proposed any actual date for the claimant to return on site. Previously the respondent had just been trying to meet with the claimant to discuss the situation. This date was decided unilaterally by the respondent, either Ms Eversley or Ms Charles. Due to the claimant’s clinical vulnerability, the unwanted conduct of informing him when to return on site would be related to his disability. 183. This letter needs to be reviewed in context, which is the claimant’s refusal to engage in any discussions about his working from home and possible return to the workplace for many months. The respondent had repeatedly tried to arrange meetings with the claimant. The claimant had not engaged in discussions, even though meetings were all arranged during the working day and via video. At times the claimant had also been confrontational and obstructive. Although the escalation and firmer stance by the respondent was unwanted, we have concluded that it does not meet the definition of harassment when looked at objectively. The attempt to arrange a meeting was reasonable management action and to describe the letter as harassment would trivialize the meaning of harassment. 121 184. The claim for harassment about this letter does not succeed. Allegations about Anna-May Charles writing to the claimant about a meeting on 11 February 2022 and the consequences of non-attendance (both s.15 and s.26) The claimant makes the following factual allegations about this letter:191.1 Anna-May Charles threatening on 11 February 2022 to discipline the claimant for “unauthorised absence”;

191.2 Anna-May Charles threatening, on 11 February 2022, to withhold the claimant’s pay for “unauthorised absence”; and

191.3 Anna May Charles compelling the claimant to attend a pre-conditioned meeting on 11th February 2022, by coercive tactics.

[192]All three allegations are of unfavourable treatment arising out of a disability. The claimant relies on the same ‘something, i.e his need to work from home due to his clinical vulnerability. The first two allegations are also alleged to be harassment related to disability.

[193]Ms Charles did inform the claimant that if he did not attend the meeting it would be recorded as an unauthorised unpaid absence. Therefore, this allegation is true. However, it is not a threat to discipline the claimant. The claimant was using the possibility of withholding pay as leverage to try to compel the claimant to attend the meeting. A threat to withhold pay is unfavourable treatment.

[194]The question for us to determine is whether Ms Charles did this because the claimant needed to work from home due to his clinical vulnerability. We have concluded that this was not the reason. The fact the claimant was working from home at the time provides some context, but only forms the background.

[195]Ms Charles stated in the letter that the requirement to attend the meeting was a management instruction and therefore there would be consequences if the claimant did not comply with that instruction. We accepted that the requirement to attend a meeting was a reasonable management instruction. By this point the respondent had been trying to arrange meetings with the claimant since June 2021. The claimant had exhibited a pattern of non-attendance, giving different reasons at the last minute or simply refusing to attend. The reason Ms Charles escalated the matter was this repeated conduct of the claimant. The claimant’s clinical vulnerability and need to work from home was just the background, but Ms Charles did not threaten to withhold pay because the claimant needed to work from home or was clinically vulnerable.

[196]In addition, the expectation that the claimant attend a meeting is not in itself unfavourable treatment. It was not a disciplinary meeting of any type. The purpose of the meeting was just to discuss the claimant’s working arrangements, which could also include providing relevant support. The claimant did not need to go on-site as he could attend the meeting via TEAMS. The meeting was arranged during his normal working hours and there was no reason why he could not attend remotely. 122

[197]This claim fails because the treatment complained of does not arise out of the claimant’s disability. In any event, we also find any treatment, unfavourable or otherwise, was justified. The respondent had a legitimate aim in trying to hold a meeting with the claimant. It was proportionate to take a more robust approach and given the pattern of lack of engagement by the claimant.

[198]The claimant also says that there was a threat to discipline the claimant and to withhold pay that was harassment. We have concluded there was no threat to discipline the claimant, so he has not shown this unwanted conduct occurred.

[199]There was a threat to withhold the claimant’s pays. This was unwanted conduct. However, we have concluded this was not related to the claimant’s disability. The claimant was fit to work so was fit to attend a meeting via Teams during his normal working hours but had repeatedly refused to do so, hence the threat that his pay would be withheld if he did not comply with the instruction. The fact that the claimant was working from home due to his medical condition was just the background to this situation. The unwanted conduct related to the claimant not complying with management instructions.

[200]We have also concluded that instructing the claimant to attend a meeting was a reasonable management instruction. In this context, informing the claimant of the potential consequences of his actions does not meet the definition of harassment, even if it were related to his disability. Including the Claimant’s name on a staff rota on 11th February 2022, the same day as his scheduled return to work meeting

[201]The claimant says this is both unfavourable treatment arising from a disability and harassment.

[202]Ms Pacetti wrote the claimant on the rota on the 11 February 2022 because she was expecting him to return to the ward and had not been told otherwise. She was not working that day so wanted other members of staff to be aware that the claimant would be there.

[203]It was not clear to us how this amounted to unfavourable treatment. A change from working from to working in the ward could be unfavourable treatment, given the Cl’s concerns about exposure to Covid. However, the claimant did not actually return to work and the respondent never expressly instructed the claimant to work on the ward that day. The note on the rota was just that, a note made by Ms Pacetti reflecting what she understood may happen. We cannot see how that has any implication for the claimant given he did not actually return.

[204]In the event it is unfavourable treatment, we find it is justified anyway. The respondent had a legitimate aim in trying to get the claimant to return to the ward. It was proportionate to put in place arrangements to facilitate this by informing Ms Pacetti that the claimant may be on the ward that day so she could make necessary preparations. We accepted Ms Pacetti’s explanation that she was lead to believe he would return that day and she put the note on so others were aware. If she had not done this, and he had returned, then this equally could have been unfavourable treatment. 123

[205]The claimant clearly did not want his name on the rota, so it was unfavourable treatment. The claimant may also have been upset by what he viewed as s evidence that a decision had been made about his return to the ward. However, it was a single incident and which we have concluded was inconsequential and relatively trivial. It falls far short of the definition of harassment.

[206]Both these claims fail. Failing to inform the Claimant of his right to be accompanied by a union representative at meetings

[207]The claimant complains of both unfavourable treatment arising out of a disability and harassment based on what he says was a failure by the respondent to advice him of his right to be accompanied at various meetings. The meetings he says where this right applies were:207.1

8 June 2021

207.2

10 June 2021

207.3

17 June 2021

207.4

1 February 2022

207.5

8 February 2022

207.6

11 February 2022

[208]The right to be accompanied by a trade union representative under section 10 Employment Relations Act 1999 only applies to disciplinary and grievance hearings. The claimant was not invited to any disciplinary hearings. He was invited to one meeting about a grievance in October 2021, which is not on the list above. That meeting did not go ahead and the claimant had been advised he could take a colleague or trade union representative in any event.

[209]The meetings listed above were all informal meetings with his manager, Ms Pacetti, or other more senior managers to discuss the claimant’s working arrangements. The right to be accompanied did not apply to any of these meetings as none of them were disciplinary hearings or grievance hearings.

[210]The claimant has not shown the alleged unfavourable treatment or unwanted conduct occurred. Both these claims fail. Referrals to Occupational Health

[211]The claimant complains of harassment about the following referrals to Occupational Health:211.1

6 May 2020

211.2 27 October 2020 124

211.3

21 April 2021

211.4

19 May 2021

211.5

2 June 2021

211.6

28 July 2021

211.7

1 June 2022

[212]The claimant was referred to Occupational Health. He was reviewed in 2021 and two reports were prepared. The claimant did not object at the time. The referral on 1 June 2022 post-dates the claim, but again the claimant did not object.

[213]The claimant was referred to Occupational Health but the claimant has not shown this was unwanted conduct. In any event, given the claimant’s ill-health and the fact that he said that this meant he needed to work from home it was both reasonable and in the claimant’s interests for the respondent to seek advice from Occupational Health. This clearly is not conduct that amounts to harassment.

[214]This claim for harassment fails.

Conclusion

[215]All the claimant’s claims for discrimination arising from disability, harassment related to disability and failure to make reasonable adjustments fail.

[216]Over the period of time we were considering the respondent was trying to meet with the claimant to discuss his working arrangements. We found that the respondent acted reasonably and made the adjustments that were reasonable, i.e. they continued to allow the claimant to work from home even though they had genuine concerns about whether it was viable given the claimant’s role.

[217]Any treatment that the claimant complains of that he describes as unfavourable was not because of his need to work from home. It was in response to his own conduct in repeatedly refusing to engage or attend meetings, even remotely. The respondent had a legitimate aim in trying to meet with the claimant and the steps they took to do so were proportionate in the circumstances.

[218]Nothing the claimant complains of as being harassment meets the statutory definition, when looked at objectively in context.