Mr C Irish v West Hertfordshire Teaching Hospitals NHS Trust: 3305094/2023
EMPLOYMENT TRIBUNALS
Case No 3305094/2023
Between
Mr C IrishClaimantWest Hertfordshire Teaching Hospitals NHS TrustRespondent
Before
Employment Judge DickMr G Deane (instructed by counsel) for respondentDate 25 February 2026
JUDGMENT
The following is the unanimous decision of the Tribunal:[1]The complaint of unfair dismissal was presented in time but is not well founded. The claimant was not unfairly dismissed.[2]The claimant was disabled within the meaning of the Equality Act 2010 from 25 August 2022.[3]The complaint of direct disability discrimination is not well founded and is dismissed.[4]The complaint of discrimination arising from disability is not well founded and is dismissed.[5]The complaint of failing to make reasonable adjustments for disability is not well founded and is dismissed.[6]The complaint relating to holiday pay is dismissed upon withdrawal.
REASONS
The judgment and reasons in this case were given orally at the conclusion of the hearing. The claimant requested written reasons, and so the following are provided under rule 60(4). Introduction, Issues and Procedure[1]The claimant started work for the respondent in 2019. Following an injury he sustained in an accident at work, he was on sick leave from 22 October 2021 until his dismissal in November 2022. The precise date of the dismissal, which had a bearing on whether the claimant’s claim for unfair dismissal was in time, was disputed between the parties. The respondent’s case was that the claimant was dismissed, fairly, because he was not capable of doing his job. (The incapability here was in the sense of him being long-term absent; there was never any suggestion that the claimant was bad at his job.) The claimant’s case was that his dismissal was procedurally and substantively unfair, for reasons including that the respondent should have made further enquiries about his medical conditions and should have waited longer before making a decision. The claimant also said that in terminating his employment the respondent had discriminated against him because of the sickness absence which arose from his disability, and that the respondent had directly discriminated against him by doing various things between the times of the accident and his dismissal. The claimant further said that the respondent failed to make reasonable adjustments for his disability by declining to postpone sickness absence meetings and by requiring him in the course of his work to use a “pump truck”, which he was unable to do because of disabilities.[2]The claimant’s case was that he was disabled because of impairments to his wrists and hands, sciatica and some mental health conditions. As regards the wrist/hand impairments, the claimant had carpal tunnel syndrome, wrist fusion and nerve damage. He had had at least some of those before the October 2021 injury, but his condition worsened significantly afterwards. The respondent disputed the extent/degree of the claimant’s disability, and knowledge was also in issue.[3]At the start of the hearing we confirmed with the parties that the issues to be decided were as set out by our colleague Employment Judge Graham following the preliminary hearing of 15 January 2024. (The relevant parts of that list of issues are appended to this document.) We would consider liability and, if necessary Polkey, i.e. Issues 1 to 7 and 8.6, though in the event there was no need for us to consider Issue 8.6. The relevant parts of the list of issues are appended to these reasons. The complaint relating to holiday pay (issue 9) had previously been withdrawn, as Mr John was able to confirm to us, though no written judgment had yet been prepared to reflect that.[4]We informed the parties that one of the members of the Tribunal has personal experience of carpal tunnel syndrome and sciatica. The parties had no submissions to make about this. We can record here that we did not use any of our personal knowledge of those conditions in coming to our decision.[5]Before the evidence was called we explained to the parties that we would read the witness statements but they should be sure to refer us to any documents of relevance in the agreed bundle during the course of the evidence or submissions. After taking time to read the statements, we heard evidence from the witnesses. In each case the usual procedure was adopted, i.e. their written statements stood as their evidence-in-chief and they were then cross-examined.[6]When the time came for the claimant to give evidence, Mr John asked us to consider adjourning the case for a day or two as he and the claimant did not have access to a paper bundle, though they did agree that they had an electronic version which had been sent by the respondent the Thursday before the hearing; they had not had the opportunity to print it out. The respondent’s position was that the claimant had been sent a complete paper bundle a year ago; the claimant accepted this, though he said he thought it was an earlier smaller bundle and expressed concern that he had not had time to consider what he thought were the extra pages in the electronic version. As we have said, even on the claimant’s account he had had the full electronic bundle since the Thursday before, and by the point of the application the claimant had also had all of the morning while we were doing our reading. We were prepared to allow the claimant overnight (though no longer) to print the bundle and ultimately that proved to be enough time for the claimant.[7]On the second day of the hearing we considered an application by the claimant to hear evidence from Mrs Taylor and Mr Kennedy, whose witness statements had not previously been provided to the respondent. We allowed the application. We gave oral reasons for that decision and have not been asked to provide written reasons.[8]We heard from the following witnesses: For the claimant: The claimant himself Mrs Susan Taylor, the claimant’s landlady at the material time Mr Martin Kennedy, a contractor working at the Lister hospital at the material time For the respondent: Mr Darren Atkin Mrs Gina Broderick Mrs Christine Price Mr James Collinson[9]We then heard submissions from the parties and, after taking time for consideration, delivered the above judgment orally, giving our reasons. In doing so we took account of all of the oral evidence that we heard as well as the written witness statements, the disability impact statement that the claimant provided and any of the other documents in the bundle that we were referred to during the course of the hearing.
Findings of fact
[10]We find the following facts on the balance of probabilities. Where facts were not in dispute we simply record them; where we have needed to resolve disputed facts we make that clear. We have not made findings on every fact presented to us, but merely on those which assist us to come to a decision bearing in mind the list of issues. The claimant’s role; background[11]The claimant worked at the Lister Hospital as a Distribution or Delivery Officer. He started that role in July 2019. He was classified as a Band 2 NHS employee. His role involved receiving goods into the hospital site – unloading pallets, roll cages, and tote boxes – delivering the goods to the wards and departments of the hospital and returning the empty roll cages and tote boxes to a goods receiving area. The parties agree, and this is how the claimant put it in his witness statement, that it was a physical role which required daily moving, lifting and handling. It also involved the frequent use of a “pump truck”, which was a device with two forks, used to lift heavy crates or pallets so that they could then be moved around using the truck’s wheels. The crates were lifted up by the use of a pumping motion by the operator, hence the name pump truck.[12]The claimant worked in a relatively small department of 10 or 11 employees which was colloquially known as Supplies. All of the employees in that department were line managed by Mr Darren Atkin, who was also based at the Lister Hospital. All of those employees did similar physical work to the work done by the claimant. Those people were, in fact, the only people employed by the respondent Trust who worked at the Lister. The respondent Trust did however employee thousands of other people in a variety of different roles at other hospitals relatively nearby, such as St Albans and Watford.[13]Mr Atkin had been the claimant’s line manager since at least 2020. The claimant was absent from work from 20 March 2020 until 22 January 2021. The respondent recorded the reason for that absence as, “severe degenerative arthritis awaiting surgery.” The claimant told us, and we accept, that that absence had also been connected with his having contracted meningitis. No issue was taken with Mr Atkin’s evidence that following that absence the claimant had made a phased return to work, which involved shorter hours and lighter duties, lighter in the sense that the lifting and handling that he was required to do was limited to lighter objects.[14]We should record and make clear that there was no suggestion at all that the respondent took any issue with the quality of the claimant’s work or with his performance at any of the times when he was not off sick. 21 October 2021 accident[15]A particular point of relevance to this case was an accident that took place on 21 October 2021. The claimant was by now back at work and had been for quite some time. The claimant sustained an injury to his thumb whilst using a pump truck. There was no particular dispute about that, nor was there any dispute about the claimant’s evidence that had gone into work the following day, 22 October 2021, and ended up going to the Accident and Emergency Department of the hospital (“A&E”) to have his injury seen to. There was however some dispute about exactly what had happened that second day, the 22nd, and in particular about how much the claimant’s line manager Mr Atkin knew or was told about the circumstances of the accident. It was the claimant’s case that he had gone into work and that Mr Atkin either sent him to A&E upon his arrival and/or saw him in A&E while he was there and later brought him some of his belongings. At some point in all of this, still on the claimant’s case, either the claimant or a colleague of his (which of those was correct varied between his written and oral evidence) had told Mr Atkin that the claimant had sustained his injury whilst at work. Mr Kennedy, the claimant’s witness, told us that he had seen the claimant and Mr Atkin sitting together talking in A&E. Mr Atkin for his part, accepted that he probably delivered the claimant his belongings but otherwise largely disputed the claimant’s account. In particular he maintained that the claimant had never told him how he sustained his injury and that he had never asked.[16]The claimant’s case went on to say, at least as it was expressed in the list of issues and in his witness statement, that Mr Atkin had denied in a later phone conversation that the claimant had ever sustained an injury at work. We were shown text messages exchanged between Mr Atkin and the claimant on 23 November 2021, so about a month after the accident. The messages were exchanged shortly after – as we will come to in a moment – Mrs Broderick had told Mr Atkin that the claimant was saying that the injury had been sustained at work. In his text to the claimant, Mr Atkin said simply that the claimant had not told him that he had hurt his thumb in an accident at work. He did not deny that there had been an accident at work. The claimant replied to the message on the same day to say that he had told Mr Atkin when Mr Atkin had told him to go to A&E. Mr Atkin then replied to say it had not been he, Mr Atkin, who had sent the claimant to A & E and that the claimant had never told him how he fractured his thumb. So, the texts a month later showed both men, Mr Atkin and the claimant, saying essentially what they told us in evidence.[17]We note that the claimant came to work on the morning of the 22nd with the injury, having sustained that injury the day before. We found it unlikely in the circumstances that Mr Atkin would never have asked the claimant how he came by his injury and so, despite the inconsistencies in the claimant’s account, we do consider it more likely than not that soon after he sustained his injury, the claimant did tell Mr Atkin that he had got the injury at work. We also took account of Mr Kennedy’s evidence in coming to this conclusion. On balance therefore, we accept the claimant’s case on this point and accept that it probably was Mr Atkin who sent him to A&E when he arrived at work. However, having considered the messages, we conclude that the most Mr Atkin ever did was to deny that the claimant had told him there was an accident at work. He never denied, in our judgment, that there had been an accident at work. In all the circumstances we consider it most likely that Mr Atkin has simply forgotten that the claimant had told him he had sustained the injury at work and indeed, the claimant himself conceded in the November text messages that Mr Atkin may have forgotten.[18]There was no dispute that Mr Atkin did not enter details of the claimant’s accident into the respondent’s accident book at the time. We conclude that this was most likely due to some sort of oversight, albeit a serious oversight. Having heard from Mr Atkin in evidence, we conclude that whatever the reason for that failure, it had nothing whatsoever to do with the claimant’s disability (assuming for the moment that the claimant was disabled). There is simply no basis in our judgment for a conclusion that Mr Atkin deliberately failed to enter the accident into the book because of what he knew about the claimant’s impairments. We accept Mr Atkin’s evidence on that point.[19]The exchange of messages in November between the claimant and Mr Atkin had come about because the claimant had contacted Mrs Broderick, a Senior HR Advisor for the respondent at that point, to enquire about his sick pay. It then become apparent the claimant was not being paid the additional sick pay which was due to him on account of having suffered an industrial injury. It is clear, indeed it was not disputed, that the error was corrected once it had been raised by the claimant and that he did receive the additional sick pay. It is also, therefore, clear that the respondent did not ever deny the claimant had suffered an industrial injury. The weeks following the accident[20]Following the accident, the claimant was on sick leave from 22 October until the end of his employment. We were not shown the “fit note” that he would have given the respondent around that time but clearly he did provide one. The respondent’s own records show the reason for the absence from 21 October, for two weeks, as “No reason listed (blank) on MED3 – issued from Ward 11BN Lister Hospital”.[21]The next of the respondent’s records shows the reason for the absence from 26 October, for three weeks, as “injury to left thumb”. We were shown the fit note for 16 November 2021 which recorded “left thumb ucl injury five weeks”. So, for the period of 21 October 2021 to around 20 December 2021, in other words for considerably more than the first six weeks of the claimant’s absence, the reason recorded for the claimant’s absence was simply the thumb injury.[22]It was the claimant’s case that for the first six weeks of his absence there was little or no support offered by the respondent and in particular by his line manager Mr Atkin. From the text messages we have seen, we accept that that may well have been the case that there was little support, although it was not the case that there was no contact. However, in the circumstances as they stood then – the claimant being off with a thumb injury – it is hard to see what practical support from the respondent the claimant might reasonably have expected, other than enquiries about when he was likely to be fit to come back to work. Stage 1 and the five months following the accident[23]Going beyond that first six weeks, until the end of the fifth month of the claimant’s absence, Mr Atkin’s evidence, which was not substantially challenged on this point, was that he and the claimant spoke about once a week on the telephone, although Mr Atkin candidly accepted that the calls did not always happen. That was sometimes because the claimant was unavailable and sometimes because he, Mr Atkin, was unavailable. We accept all of that.[24]One of the claimant’s complaints in this case is that the respondent failed to start Stage 1 of its absence management procedure over those five months. It is not in dispute that the respondent’s policy set out that a first meeting under the Long Term Sickness Absence procedure should take place once an employee had been absent for 21 days. That first meeting was known as a First Long Term Absence Support Meeting (informal); we simply use the term Stage 1 meeting. Thereafter Second Long Term Absence Support Meeting (formal) should take place within 28 days (Stage 2) and then a Third Long Term Absence Support Meeting (formal) should take place within a further 21 days (Stage 3).[25]Meetings for all of those Stages did take place but the first of them took place around five months into the absence, rather than after 21 days. It would be correct to characterise the length of the delay as something over four months. Although we accept Mrs Price and Mrs Broderick’s evidence that in some cases the respondent might legitimately decide to wait considerably longer than those 21 days, we felt that that was rather beside the point given that the respondent clearly did not decide in this case to delay the meeting. It is in fact clear from the email evidence, as well as the oral evidence, that it was not until early February that Mrs Broderick contacted Mr Atkin to enquire if the claimant had returned to work, because she had not seen any Long Term Sickness Absence Management documents. She told Mr Atkin at that point about the Policy that the Stage 1 Meeting should be completed after 21 days. (We were told that at the relevant time the respondent’s processes were such that it could take up to two months for someone in HR to notice that a Stage 1 process had not been instigated – clearly in this particular case it took longer than that.) Mr Atkin candidly accepted that he had been unaware of the respondent’s policies and in particular, the one relating to a Stage 1 Meeting within 21 days. We accept his evidence on that point and we accept that at around that time Mr Atkin was under considerable pressure at work. We accept that his lack of knowledge and that pressure was the reason for the delay. We reject the suggestion (which was not vigorously pursued during the hearing in any case) that any delay was motivated by the claimant’s disability. We find that that delay had nothing to do with Mr Atkin’s, or indeed anybody else’s knowledge of the claimant’s impairments. The delay was unfortunate to say the least but it had nothing to do with disability.[26]We also accept the respondent’s witnesses’ evidence that a delay of this length, whilst undesirable, was not uncommon, because the extent of knowledge of the respondent’s procedures varied from one manager to another. We consider that Mr John for the claimant characterised it quite succinctly: it was luck of the draw as to whether a particular employee got a manager who was familiar with the processes or a manager who was not. Thus, while the claimant was treated differently to how some employees were, or would have been treated, that difference plainly had nothing to do with any protected characteristic of the claimant. Equally, others without the claimant’s protected characteristics were, or would have been, treated in a similar way to him. Again, as Mr John said, it was the luck of the draw. We consider that the vague assertions in the claimant’s witness statement to the effect that he knew of some others who were treated differently does not fundamentally change that point.[27]We accept the claimant’s evidence that over the five months we have just referred to, he genuinely felt isolated and abandoned, although we do also note that as well as the almost weekly contact with Mr Atkin, the claimant also began to get contact, which he appears to have appreciated, from Mrs Broderick.[28]We do not accept that in all of those circumstances, the failure to implement the Stage 1 process earlier was a detriment to the claimant. Indeed, if anything, the contrary is the case. The delay ultimately had the effect of delaying the claimant’s progression through the Stages from Stage 1 to Stage 4 and ultimately to dismissal. It seems to us that dismissal would likely have taken place earlier, rather than later, had the respondent implemented Stage 1 any earlier. Although, as will become apparent, depression began to significantly affect the claimant in the later stages of his absence, we can see no reason to conclude that starting the Stage 1 process any earlier would have helped him back into work. It is clear, as we shall set out, that throughout the period of the claimant’s absence, the impairments to his hands and wrists were stopping him going back to work and that would not have changed whenever the Stage 1 process had been started.[29]We were not shown the fit notes that covered the claimant from mid December 2021 to the end of April the following year, though again, there is no suggestion that the claimant failed to provide them – clearly he did. The respondent’s records show that on 21 December 2021, the claimant was signed off for two months with “Left thumb injury + severe Carpal Tunnel Syndrome”. On 7 February 2022, he was off for eight weeks with “Thumb injury” and from 4 April 2022 to 26 April 2022, the following is recorded “Reassess at 3/52 may need amended duties. Hand surgery”.[30]On 10 March 2022, in fact just under five months into the claimant’s absence, the Stage 1 Meeting took place. As is usual in those circumstances it took place by telephone between Mr Atkin and the claimant. Mr Atkin made a record of the hearing. (Note that whenever we quote from any notes at meetings we are not setting out the full notes, but those parts which we consider to be particularly relevant.) Mr Atkin noted the claimant was feeling: “Bored. Stressed, not happy, hand not healing - not healing quick enough, thumb is still disfigured.”[31]In answer to a question, “Would you need any changes within your role to help your return to work?” The claimant said “I am capable of doing my role, I can’t see any change needed.” It is clear there that, in the context, the claimant was saying he would be capable of doing his role once better, rather than asserting that he was at that moment fit and well. Another question asked was, “Is there any further support you would find helpful?” The claimant said, “No, nothing that I can think of at the minute.” He then said that if he got closer to knowing what was going on with him, “… there may be something.”[32]Mr Atkin sent the claimant his notes of that Hearing on 4 April 2022. In the email he noted that the notes were intended to be a summary of the conversation rather than a verbatim transcript. He went on to say that the notes should be accurate and so he would be grateful if the claimant could return a signed copy making any changes or amendments he felt were appropriate. A similar process was adopted with all of the meeting notes that we shall cover and there was no suggestion made to us that the claimant ever took the opportunity to make any corrections to them. We accept that the April 2022 meeting notes, and the others, are a fair record. Clearly they do not record every word but in our judgment they capture the gist of what was said at thoe meetings.[33]At the same time he was sent those notes, the claimant was informed that there would be a Stage 2 Meeting, at which he could be accompanied, and that the meeting would be a little delayed past the usual four weeks due to problems with Mr Atkins’ availability. The Stage 2 Meeting took place on 28 April 2022, over Teams. (Again, the claimant, was sent the notes of the meeting with the opportunity to comment. He was sent them on 27 May 2022, which in fact was after the first occupational health referral, which we come to later.) Mr Atkin recorded that the claimant had said he was anxious because his hand was not healing well. The claimant said that his injury was called, “decompression of carpal tunnel syndrome with arthritis”. When asked whether he had been given a timescale, or when he might be well enough to return to work, the claimant said that there had been a general lack of information from his consultant. When asked whether there might be restrictions on things he could do (clearly that meant at work) he said he could not answer that because he was just concentrating on getting better and he said that he did not know at this stage whether there were any changes within his role that might help him return to work. It was also noted that the claimant could not drive at present. He had tried but it was painful opening the car door.[34]On 29 April 2022, the claimant was provided with another fit note. As with any of those we mention, he provided it to the respondent. The note recorded “Wound infection to right wrist. Breakdown to right wrist post operation.” The doctor had ticked two boxes to indicate the following, “If available and with your employer’s agreement, you may benefit from: a phased return to work [and/or] amended duties.” We note that this is one of only two of the many fit notes that suggested the claimant could be fit for a phased return or for amended duties. We say more about that in a moment. We note also at this point there was, at least on the basis of that note, potentially an end in sight to the claimant’s absence. That is a situation in our judgment that changed.[35]Around the same time as that fit note, the respondent’s records have the claimant as off from 20 April 2022 to 4 May 2022 for “Surgery for Carpal Tunnel Syndrome. Admission for wound infection” and everybody agrees that is exactly what had happened. Then, on 29 April 2022 to 15 May 2022, “wound infection to right wrist”. Then 16 May 2022, for ten days, “hand injury”.[36]During that period the claimant was referred to occupational health by Mr Atkin. We were shown the referral form Mr Atkin filled in. He ticked boxes asking for opinions on each of: long term sickness, fitness for current role, and workplace adjustments. He also asked when the claimant would be fit to return to work and whether any adjustments should be made to his duties. Mr Atkin ticked the box to indicated that this was not a mental health / stress / anxiety / depression health issue and he did not tick the box to enquire whether the employee was likely to be covered by the Equality Act 2010. In his evidence, Mr Atkin was unable to say precisely why he had not ticked those boxes.[37]The result of that occupational health referral was a report from a doctor. The doctor noted that the claimant had engaged with the consultant, had been diagnosed with carpal tunnel syndrome on his right hand and would be undergoing surgery to decompress that, whilst waiting for the fracture in his left thumb to heal. (We should note that the claimant, and nobody disputes this, explained that one hand had been made worse through over use while the other hand was healing from the accident injury.) The doctor continued that the claimant had told him that he had had the carpal surgery on 5 April 2022 and had another surgery on 18 April 2022. The claimant told him he was wearing wrist splints due to throbbing pain and was tingly from the dry wound. The claimant also told the doctor that he was diagnosed with arthritis in his right wrist which would require a surgical procedure. In answer to a question, “Is the sickness absence as a result of an injury or incident at work?” The OH Doctor recorded, “In my clinical opinion, yes. However, there are added issues relating to carpal tunnel and arthritis which were recently diagnosed.”[38]The Doctor noted the claimant was not currently fit to do his full range of duties and also noted the following, “In my clinical opinion future absence from work is likely to occur due to the nature of the condition which suggests that it will likely cause symptoms to occur or flare up. However, the frequency and severity cannot be predicted, especially because he awaits further specialist treatment.”[39]When asked when would the employee be fit to fully undertake their role, the doctor said, “I am presently unable to predict this as he awaits further specialist support the outcome of which cannot be predicted.”[40]The Report suggested that Workplace Stress Risk Assessments should take place. We accept evidence from the respondent that the nature of those assessments was to assess particular stressors in the workplace and so such an assessment was not likely to be possible until somebody had returned to work.[41]The OH Doctor continued, “… to support in promoting an attendance at work and to avoid exacerbation, I recommend that you support him to work on alternate duty that does not involve heavy manual handling tasks.”[42]The Report further notes the claimant reporting feeling mentally exhausted.[43]At this point, therefore, it was clear that the claimant had an impairment to his hands, or wrists, which was having a substantial effect on his day to day activities, for example driving. It was not necessarily clear at this point whether that impairment was likely to persist for twelve months (or to flare up again) in such a way that it would significantly affect the claimant’s day to day activities.[44]On 20 May 2022, Mr Atkin sent an email to Mrs Broderick when Mrs Broderick had asked him whether he had considered adjusting the claimant’s duties as had been suggested in the OH Report. He said: “Yes I have read the Report and I was going to ping you a mail a bit later as I did notice the amended duties bit - unfortunate fact of the matter is that aren’t any light duties anywhere within the department so I am a bit stumped!”[45]The respondent’s records for the later periods of absence are as follows (we reproduce them, as they are recorded, slightly out of chronological order). 24 May 2022 to 4 July 2022: “Depression, Carpal Tunnel Syndrome post op period”. The same thing is recorded for 29 July to 25 August. 24 June 2022 to 4 August 2022: “Bilateral hand pain. Carpal tunnel syndrome, operated right, old fracture left thumb deformity and pain.”[46]The Stage 3 Meeting took place on 21 June 2022, over Teams. This meeting was postponed at least once, at the claimant’s request, so that he could arrange union representation. The following appears in the meeting record: “[The claimant] said he was still in pain. The thumb on his injured hand is twice the size of the other one. [He] is also still in pain with his right hand as he had surgery for carpal tunnel. [He] said that he feels injured left hand had been forgotten. ”[47]The claimant also said that he was in a lot of pain. His mental health was good and he wanted to get back to work. (We should make clear that throughout the process we are dealing with the claimant expressed a desire to go back to work and we accept that that desire was genuine.) The claimant further said during this meeting that he could not do anything physical, could not lift anything. The following is also recorded: “wanting to return to work but no way I can lift anything… even had to have help lifting a tin of beans the other day.”[48]The claimant took issue in his evidence with exactly what he had said about the tin of beans but at this point the following is clear to us and indeed, was clear to the respondent in our judgment. The claimant was in effect saying that he was not capable of doing any lifting task. It was also clear that there was, and the respondent knew there was, an impairment to his hands and wrists which had an adverse effect on his normal day to day activities, which was substantial. It was still unclear at that point whether that substantial effect might persist for 12 months.[49]On 27 July 2022, the claimant presented another fit note which covered a period of four weeks and recorded: “depression, carpal tunnel post surgery”.[50]A second occupational health referral was made on 5 August 2022. That was along similar lines to the previous referral, although this time Mr Atkin had also requested an opinion on fitness for alternative work, temporary or permanent, and consideration of redeployment. Before the appointment for that second referral took place, on 23 August 2022 there was another fit note which recorded “depression, carpal tunnel and post operative pain”.[51]The second occupational health assessment was dated 25 August 2022. It set out the history of the claimant’s condition in some detail, saying that the claimant had suffered recurrent meningitis in 2019 and had been off work for three months. The claimant had suffered increasingly painful joints afterwards, underwent left wrist fusion surgery in August 2020 with metal work still in place and painful. In October 2021 there had been an injury to his left thumb and he had had physiotherapy since but movement was limited by metal work from the previous surgery. Carpal tunnel syndrome was now noted in the claimant’s right wrist and he had undergone surgery for that in April 2022. The Doctor recorded the following: “His left hand condition arises from a purported injury at work. However the right wrist condition is likely to be degenerative due to wear and tear or osteoarthritis which is a permanent and slowly progressive condition.” “If work can be found with minimal lifting, reaching, pushing, pulling, gripping, perhaps receptionist type duties, he can return to work. However, it is likely that this will be a permanent adjustment rather than rehabilitation.”[52]The doctor finally recorded three points which we will return to later. They are, “1. I have not asked for a medical report because the situation is ongoing and still developing. 2. Please ask us to review in three months’ time and we can advise further. Please complete a new referral and an update of specific questions. 3. At that time it would be most useful to have a copy of specialist letters which we can interpret and report back on.”[53]To summarise the situation so far, by now in our view it was clearly a proper conclusion that there was an impairment to the claimant’s wrists and hands, which could well continue past 12 months. Or to put it another way, there was a real possibility that that could continue past 12 months. That applies, in our judgment, whether we date that 12 months from the date of the accident or from 19 May 2022, the date of that first occupational health report. It was also clear that this was now a permanent and slowly progressing condition and further, that even though surgery was expected, there was no indication that it would necessarily be a permanent fix. It was being said also equally clearly that a permanent adjustment to the claimant’s duties was likely to be needed. In other words he was unlikely ever to be fit to do the duties that his role required.[54]The evidence called by the claimant from Mrs Sue Taylor is relevant here. Mrs Taylor told us that around this time she was emailing the claimant’s sick notes to the respondent for him because he was struggling with one hand. The claimant said to us, which we accept, that he had been unable to do the necessary emailing on his smartphone so he had enlisted Mrs Taylor, who was his landlady at the time, to help him. She was sending the emails from her computer because the claimant was unable to do that.[55]On 26 September 2022, another fit note recorded “depression, pain post carpal tunnel surgery”. That note covered the claimant for four weeks. On 28 September 2022, Mr Atkin sent an email to Mrs Taylor for the claimant. The email informed the claimant that in line with the respondent’s policy, and as they had discussed previously, they would be moving to a Stage 4 hearing, so Mr Atkin suggested a talk before that hearing between the claimant and Mrs Broderick. (That informal meeting never took place because the claimant was either unable or unavailable to attend.)[56]We note that now it was almost 12 months since the claimant’s sick leave had commenced. In evidence the respondent’s witnesses described an NHS Policy to the effect that the equivalent of a Stage 4 Meeting should be conducted within 12 months. It is clear from the email correspondence that the respondent’s HR Department had this in mind, albeit that it was actually 13 months before the meeting took place (see below). But, having heard from the relevant witnesses, we do not accept the claimant’s suggestion that the delay in getting to the Stage 1 Meeting meant that there was then an undue rush to get through Stages 2, 3 and 4.[57]On 30 September 2022, the claimant was told that there would be a Stage 4 Meeting on 17 October 2022. He was informed of his right to be accompanied and told that one result might be dismissal on the grounds of capability.[58]Over this period the claimant provided three more fit notes. One, on 18 October 2022, recorded carpal tunnel syndrome, for four weeks. The next, on 17 November 2022, recorded “right wrist osteoarthritis, awaiting wrist fusion”, covering the claimant for four weeks. This was the only other note (see above, para 34) that did not unequivocally say the claimant was simply unfit for work. It said he was not fit for work but that “supported working environment, reduced hours possibly and amended duties would help.” However, another fit note, dated the following day recorded “right elbow swelling, awaiting investigation” and said without qualification that the claimant was not fit for work.[59]The overarching point about all of the fit notes, except those dated 29 April and 17 November 2022, was that they said the claimant was simply not fit for work, without any qualification. We accept that the respondent reasonably interpreted this as the claimant not being fit for any work, rather than, as the claimant suggested, merely being unfit for the type of work that his role entailed. That it is the respondent’s interpretation is correct is clear in our judgemnt, from the options available to the doctor on the form. The doctor ticked the box to say, “I advise you that you are not fit for work” and then had the option of saying that the claimant might be fit for work taking in account of the following advice, with boxes then to be ticked such as, “If available with your employer’s agreement you may benefit from amended duties or workplace adaptations.” But those boxes were not ticked. If the claimant had been fit for other sorts of work in any particular doctor’s opinion, those boxes would have been ticked.[60]The Stage 4 meeting in fact took place on 23 November 2022. The meeting had been arranged on two prior occasions. On 17 October it was postponed to 2 November because the claimant had requested an in-person meeting.[61]As regards the 23 November meeting, the claimant’s case in writing had been that on 23 November he was with his union representative and he became highly stressed, was “over ventilating” and had to be taken to hospital; his union representative asked the respondent to postpone the hearing because he was too unwell, the request was rejected and the hearing took place in his absence. The claimant maintained that position, at least initially, under cross examination before eventually conceding that he may have been mistaken. In fact, it is clear to us that the 23 November meeting did go ahead in the claimant’s absence, but in different circumstances to those set out by the claimant.[62]The claimant’s initial account confused 23 November with what in fact happened on 1 November, the day before the second of three days on which the meeting was scheduled to take place. An email from Mrs Broderick on 1 November recorded two things of note about a phone conversation she had with the claimant that afternoon. First, the claimant had requested a taxi (for the following day) to Gate House, the respondent’s headquarters in Welwyn Garden City. It is significant, in our judgment, that this was a short trip by public transport from where the claimant lived. The conclusion which the respondent drew, reasonably here in our view, was that the claimant did not feel able to use public transport to get from his home to Welwyn Garden City. We will come back to the significance of that later. Second, during the call the claimant had passed his telephone to his union representative, who said that the claimant was pale and clutching his chest. The Representative had dropped him home and insisted that he call 111. Mrs Broderick noted in another email the same day, shortly afterwards, that she had been contacted again by the union representative, who had said the claimant had ended up in A&E, had had an ECG and was seeing his GP the next day. On that basis, the respondent in fact agreed to agreed in fact to reschedule the 2 November Stage 4 Meeting, and that is why it was then rescheduled to that third date, 23 November 2022.[63]The formal invite letter to the 23 November hearing/meeting explained to the claimant that he had the right to be accompanied and that one result of the hearing could be dismissal on the grounds of capability due to an underlying health reason. It further said: “If there has been any recent change in your health condition, then you are welcome to submit to the panel any further information that you would like considered.”[64]It was not suggested to us that the claimant chose to present any written evidence or submissions to the panel. The letter also noted that the claimant had confirmed receipt of the written management case and warned the claimant that the hearing would proceed in his absence, which is in fact what happened. The parties agreed that the respondent had a policy to the effect that a Stage 4 meeting should only be postponed once. As we have already noted it was in fact postponed twice, on the claimant’s request. Overall, we are satisfied that it was a reasonable decision of the respondent to proceed with that final hearing in the claimant’s absence. The day before, the claimant had provided an email which we saw a copy of. The claimant said, amongst other things, “I will not be attending the final hearing tomorrow as both mentally and physically I am in no fit state to attend. As you know I am in constant pain.”[65]The email set out details of the claimant’s anxiety, depression, left thumb pain and noted that he had now developed a peripheral tumour in his left arm, upon which he was awaiting an urgent operation for removal, which would be done either “at Neurology or Stanmore Hospital”. He was awaiting a date from Stanmore and had a date from the Lister Hospital for 23 November 2022. He further noted that the wrist fusion on his right hand put him in constant pain due to the carpal tunnel operation that he had had whilst awaiting the left hand [injury from the] accident at work to heal, which was not yet healed and that a procedure was taking place for that on 6 December 2022. The claimant pointed out that no third occupational health assessment had been procured and he further stated that he still wished to return to work once he was fully recovered. As we have said, nobody doubted that that was a genuine aspiration on the claimant’s part.[66]As the respondent points out, the email did not make a formal request for a postponement of the hearing. In our judgment, the respondent was entitled to draw the conclusion from that email alone that the claimant was unlikely to be fit for work at any point in the near future. That would apply, in our judgment, to any work and not just the work that he did. None of the evidence which the respondent was provided with, and in particular that email, specified any likely date of return. We agree with the suggestion made by counsel for the respondent (as indeed did the claimant when it was put to him in cross-examination) that a return clearly could not realistically have happened at any time before the end of that year and more likely some time after that.[67]One other point that is relevant to the respondent’s decision to proceed in the claimant’s absence is the claimant’s union representative had previously indicated to Mrs Broderick that she was unwilling to attend the meeting without the claimant being present.[68]During the course of the meeting, a management case document was presented which had been prepared by Mr Atkin. As we have already observed, that was provided to the claimant as well, in advance of the hearing. In our judgment it was a fair summary of the position and the evidence. It included all the notes from the Stage 1, Stage 2 and Stage 3 meetings.[69]We were provided with a “transcript” of the Stage 4 hearing. It was clearly produced by what is likely an AI function in Teams, so it is not a perfect verbatim transcript, but it was in our view an adequate record of what happened. Stage 4 hearing outcome - dismissal[70]Following the hearing, the decision to dismiss the claimant was made by Mr Collinson, who had conducted the hearing. He was the respondent’s Head of Supply Chain and was Mr Atkin’s line manager. We will come in more detail in a moment to particular aspects of the decision to dismiss but at this point we will record our findings on when the claimant was told about his dismissal.[71]The letter which set out the reasons for the claimant’s dismissal carried the date of 29 November 2022. However, we were shown (at page 360 of the Bundle) emails between Mr Collinson, Mrs Broderick and Mrs Price. All of those emails were sent on 2 December 2022. One of the emails from Mr Collinson said: “FYI letter posted” another said, “the letter has gone recorded delivery – I did get to speak to [the claimant], he was fairly matter of fact about it but said he would read the letter before commenting.”[72]The claimant’s oral evidence was that he did recall such a conversation but he thought it could not have been before 25 or 26 November 2022. Mr Collinson’s written evidence did not deal with the point about when the claimant was informed of his dismissal, despite the fact that time limits had been identified as an issue in the case. In his oral evidence, Mr Collinson said he thought the conversation had taken place on the day of the hearing or the day after, it could not have been the 25th or 26th, he thought, because they were Saturday and Sunday.[73]The issue we had to decide was, was the claimant told of his dismissal on or after Saturday 25 November 2022. Considering all the evidence we have just summarised, and in particular the emails of 2 December which naturally read as though the conversation with the claimant had just taken place, we conclude that the claimant was not told until on or after 25 November 2022 and we consider that Mr Collinson is simply mistaken in his evidence to the contrary.[74]As we have said, the dismissal letter carried the date of 29 November 2022. Mr Collinson summarised what had happened at the hearing and said the following (we quote particular passages rather than the whole letter): “I am mindful that despite 13 months’ sickness absence there remains no agreed return to work date. Given the additional operations and diagnostics planned for December it is unlikely you will be fit to work in any capacity in the foreseeable future. … The restrictions you have in moving and handling preclude you from being able to return to work in your substantive role, and I do not consider redeployment to be a realistic prospect in supporting you to return due in part to your base being at Lister Hospital where the Trust does not employ colleagues outside of the procurement team and also the fact that all roles will involve repetitive-style movements, such as typing/computer mouse usage which will negatively affect your health conditions. I do not therefore consider it appropriate to explore redeployment. … In taking into account all of the facts of this case I have decided that dismissal on the grounds of incapability due to ill health is the most appropriate outcome. … I do not see from the evidence available that you’ve applied for the ill health retirement, however, this may be something you would find helpful to look into if you meet the eligibility criteria with the NHS Pension Scheme. If you have any questions about this please contact [Mrs Broderick] from HR.”[75]One other feature of the letter is that it purports to back date the date of the claimant’s dismissal to 23 November 2022, in other words the date the decision was made. This cannot be right in our judgment – the claimant cannot have been dismissed until he was told he had been dismissed. Right to appeal the dismissal[76]The dismissal/outcome letter also informed the claimant that he had a right to appeal. The claimant did send an email to the respondent noting that he had received the outcome letter on 6 December 2022 and that he would like to appeal the decision. He said, “there will be a letter to follow outlining my appeal.”[77]The claimant asserted in his oral evidence that he had provided such a letter but there was simply no evidence supporting that assertion. None of the respondent’s witnesses were aware of any such letter and we find the claimant was mistaken about this. He did not ever lodge an appeal against his dismissal with the respondent. Medical report of December 2023 and other findings on the claimant’s health[78]We were provided in evidence with a medical report prepared on the claimant’s behalf, dated 13 December 2023. We took care in this case not to apply hindsight, because of course it is the claimant’s health before his dismissal and at the time of his dismissal that is relevant here – the report was prepared about a year after the claimant’s dismissal. The parties agreed that we could consider the report, although the respondent suggested that most, if not all, of it was irrelevant to our decision. The report dealt with primarily the injury at work. It was not prepared for these proceedings. Ultimately we consider that the Report might have been relevant to remedy had that become an issue. Otherwise, it does little more than confirming what we already know from the other evidence: in brief summary it said that the claimant had pain in his hand and thumb which did not bend freely, which was worse when it was cold and when the claimant had to do manual work. The thumb remained tight and painful. In the writer’s opinion it has taken the claimant 18 months to recover from the date of his injury and then further recorded, “In my opinion he has recovered from the ligament injury but he has ongoing significant problems due to arthritis in the MP joint and his other issues with the hand including fusion of the wrists.”[79]Before we deal with certain aspects of the dismissal, we acknowledge here that there is a genuine sense of grievance on the claimant’s part. He suffered an accident at work which clearly led to a significant cascade of further medical difficulties which meant that he was unfit for work for quite some time. We accept, as we have already said, that the claimant as feeling isolated but in the absence of medical evidence to this effect, there is in our judgment no basis for the conclusion, invited by the claimant, that the respondent’s actions or inactions over the first part of the sick leave period caused the claimant’s depression. Whatever Mr Atkin or the respondent did or did not do, it is clear in our judgment that the claimant would still have remained physically unfit for work. Likewise, contrary to the claimant’s suggestion, there is simply no basis for a conclusion that the claimant might have got better if the Stage 1 process had started earlier. That suggestion in our judgment misunderstands the purpose of the respondent’s long term sickness procedures.[80]We also note that at various points the claimant was “signposted”, as the respondent puts it, to potential sources of support after his fit notes had raised the issue about his mental health in mid-2022. We further accept Mrs Broderick and Mr Atkin’s evidence that the claimant was unwilling to talk to them about his mental health over the relevant period. The decision to dismiss[81]What we say now about particular aspects of the respondent’s decision to dismiss the claimant is based on the transcript of the Stage 4 Meeting as well as the written and oral evidence from the decision-maker Mr Collinson and from Mrs Christine Price, who provided HR advice to Mr Collinson during that Stage 4 Meeting.[82]Firstly, on the subject of redeployment, it seems clear that, as Mr Atkin accepts in his witness statement, the prospect of redeployment was never specifically discussed with the claimant. It is equally clear that although the respondent had a specific redeployment policy, that policy was not invoked in the claimant’s case. Ultimately, on this point we accept the respondent’s position that detailed consideration of redeployment was not realistic unless and until the claimant was fit for some form of work. As Mrs Price put it, and we agree, it was unlikely that the claimant would be fit to work in any capacity in the foreseeable future at the time of that Stage 4 Hearing. There were a number of different barriers which prevented him from returning to work. Mrs Price also noted the respondent’s policy on this point, which was, “If having heard all the evidence there is no suggestion that a substantial improvement in attendance can be expected in the immediate future, or that a return to work is imminent, the employee will be dismissed from the organisation.” In Mrs Price’s oral evidence she explained that usually the period she considered for the purposes of “immediate future” here was the next three or four months.[83]It is right to say that redeployment was considered informally by the respondent at points (as we have set out above). The management case for the Stage 4 meeting noted that, when reviewing the first occupational health report, management were not able to find a suitable alternative role for the claimant, taking into account the report’s recommendations and that the claimant did not feel that his pain was under control enough to work.[84]Redeployment was considered during the course of the Stage 4 Meeting itself (in, of course, the claimant’s absence), in this sense. Mr Atkin said he had mentioned a long time ago, as almost a passing comment, whether there were there was any kind of receptionist duties at Gate House, but he had no like duties in his department – it was a “physical” department and the claimant would not be capable because of his injuries. Mr Atkin did go on to observe, later on in the meeting, that efforts for redeployment could be made if there was any prospects of return. Mrs Price pointed out that the claimant had needed, or requested, a taxi to the hearing and there was a discussion then about whether it was fair or practicable for the claimant to work at the respondent’s other hospitals. The possibility of employment by another Trust was discussed, but again in the context that it would be considered if the claimant was fit to return. Mrs Price said, “… and he is not well enough unfortunately to have conversations about his return to work at this time.”[85]We take the claimant’s point that nobody asked him about whether he could do alternative roles and travel to alternative places but that has to be viewed in our judgment in the context that the claimant was by now unable to participate in meetings and had chosen not to provide written submissions. Also, he had never indicated any desire to move to a totally different role.[86]We also accept the respondent’s points, firstly that there was no requirement for it to create a new role for the claimant and that secondly, while there might have been thousands of people employed by the respondent at its various sites, the issue is not how many people it employed but how many vacancies there were and how many of those were at the claimant’s Band 2. As Mrs Price told us, administrative roles were in fact at a higher Band than Band 2 and in any case the claimant would still have been incapable of doing those sorts of roles. As Mrs Price said, all or almost all of the administrative roles that were available were, in her words, “keyboard heavy”. We consider that it was a reasonable conclusion in the circumstances, without the need to get further medical evidence, that the claimant would be unable to do those roles. Even then, there is the further point that none of this could be considered unless and until the claimant was in fact fit to work.[87]A similar overarching point applies to the next consideration, which was a phased return to work. Clearly a phased return to work had been possible in the past, in the sense that after his return to work following the long absence which pre-dated the events of this case (see para 13 above) the claimant was given literally lighter duties – lifting lighter objects – but again that was only where the claimant was capable of doing that work. That option was considered in the Stage 4 Meeting. Ultimately it came down to the same point – the claimant was in fact not ready for a return to work, whether phased or not.[88]The next point was about the operation of the Equality Act 2010. The claimant suggested that at no point was he treated as if the Equality Act applied. Mrs Price, in her written evidence, said that while she and the decision-maker did not discuss each individual injury or condition of the claimant in the hearing, she approached the matter as though the claimant was covered by the Equality Act. She also told us in her oral evidence that she had advised Mr Collinson to act accordingly. Although there was no record of that, we do nevertheless accept that evidence from an experienced HR professional.[89]The next point was the issue of ill health retirement. The written management case for the Stage 4 Meeting recorded, under the heading Ill Health Retirement, that the claimant wished to return to his substantive post once recovered. We accept the respondent’s case that ill health retirement was not a realistic prospect where the claimant himself was seeking a return to work. Also whether to grant ill health retirement was not this respondent’s decision – it ultimately would have been a decision made by another NHS body. Regardless of all of that, the claimant was informed that he could apply (and, we were told, could have done so even after his dismissal).[90]The next point the claimant makes is that his consultant was not ever consulted by the respondents. That is factually correct. We note, however, that the claimant himself was telling the respondent he was not getting much from his consultant. We were provided with a letter from the claimant’s consultant which suggests to us that he worked for a different Trust, so he was not under this respondent’s control – i.e. the respondent could not have ordered him to prepare a report. The second Occupational Health Report said, as we have already recorded, “I’ve not asked for a medical report because the situation is ongoing and developing.”[91]Ultimately in those circumstances, given the time that had already elapsed, we do accept that it was reasonable for the respondent not to have itself sought information from the consultant. We note in fact that the claimant never requested to respondent to do that.[92]The next consideration is whether there should have been a third occupational health report. As we have already recorded, the second report had said, “Please ask us to review in three months’ time …”[93]On this point we accept Mrs Broderick’s evidence. Firstly, that she did not view this as a direction that a report must be ordered within three months but, rather, as a request that if the respondent wanted another Report it should re-refer after three months. We also accept, as Mrs Broderick pointed out, that if occupational health at that point had thought a third review was necessary in three months, they would have booked one in.[94]Ultimately, of course, by the time of the Stage 4 Meeting the claimant’s situation was still ongoing and developing as was described in the second occupational health report. It seems to us unlikely therefore that any particularly different answer would have been received with a third report. We also note of course that commissioning a third report would have caused further delays in a process that already had now taken 13 months.[95]Another point that the respondent quite legitimately took into account, and indeed there was no suggestion that the respondent should not have taken it into account, was that the claimant’s absence was causing severe difficulties within what was a relatively small team (albeit clearly through no fault of the claimant). No temporary cover appears to have been available for the claimant, so his other colleagues were having to work extra hours in order to cover his work. In our judgment the respondent was entitled to conclude that that situation was not sustainable.
The Law
[96]We are grateful to counsel for the respondent for providing us with a skeleton argument pointing us to some of the relevant authorities, though we do not cite all of them below. Where we cite authorities that were not specifically referred to during the proceedings we are confident that no injustice is done since they deal only with points that were distilled into the agreed list of issues.[97]S 94 of the Employment Rights Act 1996 “ERA” confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that they were dismissed by the employer (see s 95 ERA), but in this case the respondent admits that it dismissed the claimant.[98]S 98 ERA deals with the fairness of dismissals in two stages. First, the employer must show that it had a potentially fair reason for the dismissal within section 98 (1) and (2). Second, if the employer shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[99]Regarding the first stage of fairness, S 98 ERA provides, so far as is relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do […](3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality […][100]So in this case it is for the Respondent to prove that the principal reason for the claimant’s dismissal was capability (i.e. a reason falling within ss (2)).[101]The second stage of fairness is governed by s 98 (4) ERA: (4) … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[102]In deciding fairness, we therefore must have regard to the reason shown by the respondent and to the resources etc. of the respondent. In general, the assessment of fairness must be governed by the band of reasonable responses test set out by the EAT in Iceland Frozen Foods Ltd v Jones 1983 ICR 17. In applying s 98(4), it is not for us to substitute our judgment for that of the employer and to say what we would have done. Rather, we must determine whether in the particular circumstances of this case the decision to dismiss the claimant fell within the band of reasonable responses open to a reasonable employer. Discrimination generally[103]The Equality Act 2010 (“EqA”) prohibits discrimination on the grounds of various “protected characteristics”, set out at sections 5 to 18. An employer must not discriminate against an employee by (amongst other things) dismissing them or by subjecting them to any other detriment (sections 39 and 40). There was no dispute here that the claimant was the respondent’s employee within the meaning the Act. Nor was there any dispute that the respondent would be liable under s 109 for any contraventions of the Act done by other employees (e.g. the claimant’s managers). The Tribunal’s jurisdiction to hear complaints about contraventions of the provisions prohibiting discrimination in employment is established by s 120.[104]The Equality and Human Rights Commission Employment Code (“the EHRC Code” provides a detailed explanation of the EqA. The Tribunal must take into account any part it that appears relevant to any questions arising in proceedings (s 15 Equality Act 2006).[105]We remind ourselves that discrimination may be sub-conscious. As Lord Nicholls said, in the context of a case about race discrimination, in Nagarajan v London Regional Transport [1999] IRLR 572: All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.[106]S 136 of the EqA makes provisions about the burden of proof. If there are facts from which the Tribunal could decide, in the absence of any other explanation, that there was a contravention of the Act, the Tribunal must hold that there was a contravention, unless the respondent proves that that there was not a contravention. S 136 requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but has nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or another (Hewage v Grampian Health Board [2012] IRLR 870). The burden of proof does not shift where there is no evidence to suggest the possibility of discrimination (Field v Steve Pye and Co (KL) Ltd [2022] EAT 68). Guidelines on the application of s 136 were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142 and the importance of these was recently restated by the Employment Appeal Tribunal in Field v Steve Pye and Co (KL) Ltd [2022] EAT 68. We do not reproduce the thirteen steps of the guidance here. One important point to note is that the question is whether there are facts from which a Tribunal could decide… It is not sufficient for the employee merely to prove a difference in protected characteristic and a difference in treatment. Something more is required (Madarassy v Nomura International Plc [2007] EWCA Civ 33). Unfair or unreasonable treatment on its own is not enough (Glasgow City Council v Zafar [1998] IRLR 36). If the burden of proof does shift, under the Igen guidance the employer must prove that the less favourable treatment was “in no sense whatsoever” because of the protected characteristic. Because the evidence in support of the explanation will usually be in the possession of the employer, Tribunals should expect “cogent evidence” for the employer’s burden to be discharged. Direct discrimination[107]Under s 13(1) EqA read with s 6, direct discrimination takes place where because of disability a person treats a claimant less favourably than that person treats or would treat others.[108]By s 23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case. The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board [2012] UKSC 37. In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of a protected characteristic (in this case, race). However in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the “reason why” the claimant was treated as they were (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285).[109]The protected characteristic need not be the only reason for the treatment, provided it had a significant influence on the outcome (Nagarajan v London Regional Transport [1999] IRLR 572, HL). The case law recognises that very little discrimination today is overt or even deliberate; people can be unconsciously prejudiced. A person’s motive is irrelevant, as even a well meaning employer may directly discriminate. Discrimination arising[110]By s 15 EqA:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[111]In T-Systems Ltd v Lewis EAT 0042/15 the EAT said that the phrase “something arising in consequence of” the disability should be given its ordinary and natural meaning. “Unfavourably” is not defined in the EqA, but it was not in dispute in this case that dismissal amounts to unfavourable treatment. As Langstaff J explained in Basildon and Thurrock NHS Foundation Trust v Weerasinghe 2016 ICR 305, two separate causative steps need to be established for a claim to succeed under s 15:(i) the disability had the consequence of “something”, and(ii) the claimant was treated unfavourably because of that something. In Pnaiser v NHS England and anor 2016 IRLR 170 and then again in Sheikholeslami v University of Edinburgh 2018 IRLR 1090 Simler J approached the issue in the other order (which is, as was made clear in Weerasinghe, open to the Tribunal). In Sheikholeslami, her Ladyship said: On causation, the approach to S.15… is now well established... In short, this provision requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) something? and (ii) did that something arise in consequence of B’s disability? The first issue involves a [subjective] examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment (it need not be the main or sole reason) then stage (i) is satisfied. The second issue is a question of objective fact [i.e. it will not depend on the person’s thought processes] for an employment tribunal to decide in light of the evidence.[112]The person’s reasons for the unfavourable treatment are to be distinguished form their motive, which is irrelevant. While a broad approach applies when considering stage (ii) there must still be a connection of some kind. As Simler J said in Sheikholeslami, the critical question is whether the ‘something’ arose “in ‘consequence of’ (rather than being caused by) the disability… This is a looser connection that might involve more than one link in the chain of consequences.”[113]The respondent will have a defence if it can show either of the things set out in ss (1)(b) or (2). Subsection says that there is no discrimination where the respondent shows that it did not know, and could not reasonably have been expected to know, that the claimant had the disabiliy. So far as whether the treatment was a proportionate means of achieving a legitimate aim is concerned, although business needs and economic efficiency may be legitimate aims, the EHRC Code states that an employer simply trying to reduce costs cannot expect to satisfy the test (see para 4.29). As to proportionality, the Code notes that the measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see para 4.31). A critical evaluation of the evidence is required, entailing a weighing of the needs of the employer against the discriminatory impact on the employee; the Tribunal must carry out its own assessment on this matter, as opposed to simply asking what might fall within the band of reasonable responses of the reasonable employer (Gray v University of Portsmouth EAT 0242/20). It will be necessary to consider whether the treatment was an appropriate and reasonably necessary way to achieve the legitimate aim, and whether something less discriminatory could have been done instead. Reasonable adjustments[114]The requirements of the duty to make reasonable adjustments are set out in s 20 EqA and, by s 21, a failure to comply with the duty amounts to discrimination. For the purposes of this case, the duty applies where a “provision, criterion or practice” (“PCP”) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The disadvantage must be linked to the disability. The duty is to take such steps as it is reasonable to have to take to avoid the disadvantage. “Substantial” means “more than minor or trivial” (s 212 EqA). Paragraph 6.8 of the EHRC Code says that the duty to make reasonable adjustments applies at all stages of employment including dismissal. The employer is not subject to the duty if it shows that it did not know, and could not reasonably be expected to know, that the person had a disability and was likely to be placed at the relevant disadvantage (Sch 8 Para 20 EqA).[115]The EHRC Code (para 4.5) says that the term “provision, criterion or practice” (“PCP”) should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. In Ishola v Transport for London [2020] EWCA Civ 112, although the Court of Appeal accepted that the words “provision, criterion or practice” were not to be narrowly construed or unjustifiably limited in their application, it considered it significant that Parliament had chosen these words instead of “act” or “decision”. The words “provision”, “criterion” and “practice” all carry the connotation of a state of affairs indicating how the employer generally treats similar cases or how it would deal with a similar case if it occurred again. The Court also pointed out that a PCP must be capable of being applied to others. Although a one-off act or decision may amount to a PCP it is not necessarily one.[116]So far as the burden of proof is concerned, it is for the claimant to establish that the duty has arisen and that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. It will then be for the respondent to show that it did not fail to comply with the duty. (Project Management Institute v Latif UKEAT/0028/07.)
Conclusions
[117]We now apply the law to the facts as we have found them. Issues2.1 and2.2[118]There was no dispute that the claimant was dismissed and we find that the respondent has proved that the principal reason for the dismissal was capability (long-term absence). Indeed, there was no real dispute about this. Issue 2.3[119]Did the respondent act reasonably in all of the circumstances in treating that as a sufficient reason to dismiss the claimant? In our judgment, taking account of each all of the factors set out in 2.3.1 to 2.3.5 of the list of issues, the respondent’s actions were well within the band of reasonable responses open to an employer in these circumstances. We have already explained during the course of our factual findings that in our view the respondent’s actions were reasonable. It genuinely believed the claimant was no longer capable of performing his duties; it adequately consulted the claimant – he was given the opportunity to provide things in writing when he was unable to participate in meetings; notwithstanding the decision not to seek a third occupational health report, it had reasonably investigated the medical position – its view that there was unlikely to be material change soon was reasonable; it could not reasonably have been expected to wait longer before dismissing the claimant – it was quite reasonable for the respondent not to keep a job open for the claimant, a job which it appeared he was unable to do, essentially indefinitely, particularly given the difficulties respondent was experiencing as a result of the claimant’s absence. For those reasons we conclude the dismissal was within the range of reasonable responses and was therefore not unfair. Disability Issue 4[120]The relevant period here is October 2021 to the end of November 2022. The first two impairments relied upon by the claimant, as set out in the list of issues, are carpal tunnel syndrome, wrist fusion and nerve damage / nerve tumour. Mr Deane for the respondent pragmatically conceded that in this case it made sense for us to treat all of the claimant’s difficulties with his wrists and both hands as one impairment, recognising of course that it is the impairment and its effect that is relevant here, not the precise medical label. The claimant had an impairment to his hands and wrists meaning, amongst other things, that he was in severe pain and unable to bend his wrists. This meant that he had significant difficulty and indeed was all but unable to lift things, hold things and push and pull things. From as early as 19 May 2022, the first occupational health report, this was having a substantial effect on his day to day activities, for example driving. From as early as 25 August 2022, it was clear that the impairments could well continue past 12 months, or at the very least were likely to recur. The respondent conceded in written submissions that carpal tunnel syndrome was long-term. In our judgment therefore, from 25 August 2022 at the latest, the claimant met the legal definition of disability and in this case the respondent’s knowledge cannot be realistically separated from the facts that have led us to reach that conclusion. Therefore the respondent knew or should have known of the disability at the latest from that same date.[121]We do, however, find that the claimant has failed to prove the other impairments upon which he relies amounted to disability. So far as depression and anxiety are concerned, although the respondent was aware for some of the relevant period that the claimant had those conditions, and we accept that the claimant had those conditions, no evidence was provided to support the conclusion that at the relevant time there was a real possibility that the effect of depression and anxiety upon the claimant’s day-to-day activities could persist past 12 months or could recur. (While the respondent accepted that the claimant had depression before May 2022, we accept the respondent’s point that it was only then that the depression was said to have contributed to the claimant’s absence. There is no basis to conclude that at that point the impact was likely to persist for 12 months.) On the point of suicidal ideation, there was simply no evidence of that during the period of the claimant’s employment. On the point of sciatica, we were provided with no evidence beyond the claimant’s own assertions that he had the condition and that it had an impact on his ability to work or to do other day to day tasks. The claimant’s evidence taken at its highest is that it caused severe pain in his back and legs making mobility very difficult. More significantly, there was no evidence that the respondent was ever aware of the sciatica. Where we refer below to disability, we are therefore referring to the impairments to the claimants hands/wrists. Direct Discrimination[122]The claimant relied on five particular acts of discrimination from Issue 5.1.1 to 5.1.5 in the list of issues. Issue 5.1.1[123]The respondent not contacting the claimant for six weeks following his accident at work. To some extent we accept that happened as we have set out already, however, it was not less favourable treatment. There was no basis for the conclusion that a non-disabled person would have been treated any differently and in any case, we found that the claimant did not meet the definition of disability at this point. Issue 5.1.2[124]Failing to record the accident and then denying that the claimant had suffered from the accident. That happened only to the extent that the accident was not recorded. There was no basis for the conclusion that a non-disabled person would have been treated any differently. It plainly had nothing whatsoever to do with the claimant’s disabilities. Issue 5.1.3[125]The respondent failed to apply its sickness absence policy by failing to invite the claimant for Stage 1 and Stage 3 sickness management meetings. That happened in the sense that the policy was not complied with – the claimant was invited, but he was invited late. We have already set out our basis for the conclusion, however, that this was not less favourable treatment. There is no basis for a conclusion that a non-disabled person would have been treated any differently and similarly we found the claimant did not meet the definition of disability at some of the relevant points here as well. Equally we have concluded that none of this had anything whatsoever to do with the claimant’s disabilities. Issue 5.1.4[126]The respondent refused to speak to the claimant’s medical consultant to obtain advice. That did not happen in the sense that there was no refusal; the respondent was simply never asked. In terms of the respondent’s decision not to ask the consultant, we find there is no basis for a conclusion that the an nondisabled person, in other words someone who was sick and under a consultant but did not meet the legal definition of disability, would have been treated any differently to the claimant. Likewise we find that this clearly had nothing to do with the claimant’s disabilities. Issue 5.1.5[127]The respondent had refused to postpone the Stage 4 sickness absence meeting on 23 November 2022, even though the claimant had informed the respondent that he was suffering from stress etc. That simply did not happen. The Meeting was in fact postponed for the reasons the claimant set out on an earlier occasion and even if one considers the decision of the respondent to proceed on 23 November 2022 in the claimant’s absence, there is no basis in our judgment to conclude that a non-disabled person in the same circumstances would have been treated any differently. Nor is there a basis on which a Tribunal could properly conclude that this was because of the claimant’s disabilities.[128]Taking all of those points into account, the burden of proof did not shift to the respondent in this case. There was simply no evidence on which a Tribunal could properly conclude that there was direct disability discrimination here. Even if we were wrong about that, we would have found that the respondent then succeeded in proving that the five things the claimant complains about had nothing whatsoever to do with his disability. Discrimination Arising from Disability[129]There is no dispute that the respondent treated the claimant unfavourably by dismissing him. We do conclude that the claimant’s sickness absence, at least the later half of it, did arise in consequence of the disabilities as we have found them to be.[130]The next question therefore is, was the claimant dismissed because of that absence? On a somewhat technical analysis the answer to that is, no, and that disposes of the complaint. The claimant was in fact dismissed because he was/would be unfit to work in the present and future – his long past absence would not have led to his dismissal if he had, by the time of the Stage 4 hearing, been fit to return to work. That disposes of the complaint. But it may be that the matter arising here might better have been phrased as an inability to work. Being as fair as we can to the claimant, we go on to consider if, therefore, the respondent’s actions here were a proportionate means of achieving a legitimate aim. The respondent, in the skeleton argument provided by Mr Deane, asserted that there plainly was a legitimate aim here in that the claimant was unable to do his job or indeed any physical role and that his team were put under pressure because of his absence. In our judgment, clearly it was a legitimate aim for the respondent to wish to maintain staffing levels and only to employ people who were capable of working. We unhesitatingly come to the conclusion that the respondent’s actions in all of the circumstances as we have set out were a proportionate means of achieving that legitimate aim – in short, the respondent had in our view waited long enough and there were no less discriminatory ways of achieving that aim. Reasonable Adjustments[131]On the complaint of reasonable adjustments, we take account of the respondent’s submissions that the burden of proof is on the claimant to establish a prima facie case that a duty had arisen and that there are facts from which the Tribunal could find that the duty had been breached. In considering that we come to the PCPs set out in the List of Issues.[132]The first PCP was at 7.2.1, a policy of not postponing final sickness meetings. That clearly was a policy in the sense that the respondent had a policy that a final sickness meeting should only be postponed once.[133]The other PCP relied upon was a requirement to use a pump truck and not to consider alternative duties. It clearly was a PCP that the claimant was required to use a pump truck in the course of his work. Equally clearly it was not a PCP of the respondent not to consider alternative duties. In fact, it did consider them, but simply did not feel that they were appropriate in the claimant’s case.[134]Did those PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disabilities? Regarding the policy on not postponing final sickness meetings, no, for two reasons. Firstly, the policy was not actually applied to the claimant – the sickness meeting was postponed on more than one occasion. Secondly, even when the refusal to postpone a second time came, the claimant was, contrary to what is asserted at 7.3 in the list of issues, able to present his arguments, in writing; he chose not to do so. Although it did mean that he was not asked about roles elsewhere, his attitude to public transport and so on. So to that extent only the claimant was put at a disadvantage, though not in comparison to someone without his disabilities. Insofar as the pump truck is concerned, we do consider that did put the claimant at a substantial disadvantage, for reasons which we consider to be obvious.[135]What steps could have been taken to avoid the disadvantages that we have set out? Clearly as a matter of logic it would have been possible to allow another postponement of the hearing and clearly it was technically possible to allow the claimant an alternative role (or to be placed in the redeployment pool), as were suggested at 7.5 of the list of issues. The real issue here is whether it was reasonable for the respondent to have to take those steps. In our judgment it was quite reasonable for the respondent to have decided that the third attempt at a final hearing should go ahead, for all the reasons that we have already set out. Equally, it was reasonable for the respondent not to put the claimant in an alternative role or into a pool, quite simply because he was not fit for any work at the time, nor was he likely to be in the near future. Time Limits[136]That leaves the issue of time limits. All were agreed that for the purposes of this case time limits ran from the date on which the claimant was informed of his dismissal and (as set out in Issue 1.1 on the agreed list of issues) that the relevant cut-off date here was 25 November 2022. There is no need in those circumstances for us to set out the relevant law. We found that the claimant was informed of his dismissal on or after that date, so the complaint of unfair dismissal was in time.[137]As a result of the conclusions we have already come to, it is not necessary for us to make findings on whether we would have extended the time limits in the Equality Act 2010 claims had there been any need to. Final remarks[138]We wish to record out thanks to Mr John for his assistance to the claimant and to the Tribunal during the course of the proceedings.[139]Finally, Employment Judge Dick wishes to apologise for the length of time it has taken him to prepare these reasons, and to make clear that the other members of the Tribunal were in no way responsible for the delay. APPENDIX EXTRACTS FROM THE LIST OF ISSUES PREPARED BY EJ GRAHAM FOLLOWING THE HEARING ON 15 JANUARY 2024 Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 25 November 2022 may not have been brought in time.1.2 [Discrimination time limits]1.3 [Unfair dismissal time limits]2.1 Was the Claimant dismissed?2.2 What was the reason or principal reason for dismissal? The Respondent says the reason was capability (long term absence).2.3 If the reason was capability, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether:2.3.1 The Respondent genuinely believed the Claimant was no longer capable of performing their duties;2.3.2 The Respondent adequately consulted the Claimant;2.3.3 The Respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;2.3.4 Whether the Respondent could reasonably be expected to wait longer before dismissing the Claimant;2.3.5 Dismissal was within the range of reasonable responses.2.4 Did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? Remedy for unfair dismissal […] Disability 4.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:4.1.1 Did the Claimant have a physical or mental impairment? The Claimant relies on:(i) Carpal Tunnel Syndrome (the Claimant says that the symptoms are severe)(ii) Wrist fusion and nerve damage/nerve tumour(iii) Sciatica(iv) Depression, anxiety and suicidal ideation4.1.2 Did they have a substantial adverse effect on his ability to carry out day-to-day activities?4.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairments?4.1.4 Would the impairments have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?4.1.5 Were the effects of the impairments long-term? The Tribunal will decide:4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?4.1.5.2 if not, were they likely to recur? Direct disability discrimination (Equality Act 2010 section 13)5.1 Did the Respondent do the following things:5.1.1 Not contact the Claimant for six weeks following his accident at work in October 2021? The Claimant says that he had to contact the Respondent before they contacted him.5.1.2 Failed to record his accident in the Respondent’s Accident Book and then denied that he had suffered from that accident.5.1.3 Fail to comply with its sickness absence policies by failing to invite the Claimant to a stage one and stage three sickness management meeting.5.1.4 Refused to speak to the Claimant’s medical consultant in order to obtain advice about his condition.5.1.5 Refuse to postpone the stage four sickness absence management meeting on 23 November 2022 even though the Claimant informed the Respondent that he was suffering from stress and over ventilating, and going to the Hospital Accident and Emergency department?5.2 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether the Claimant was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say were treated better than they were.5.3 If so, was it because of disability?5.4 Did the Respondent’s treatment amount to a detriment? Discrimination arising from disability (Equality Act 2010 section 15)6.1 Did the Respondent treat the Claimant unfavourably by: 6.1.1 Terminating the Claimant’s employment.6.2 Did the following things arise in consequence of any of the Claimant’s alleged disabilities: 6.2.1 The Claimant’s sickness absence from October 2021 until the date of his dismissal.6.3 Did the Respondent dismiss the Claimant because of that sickness absence?6.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent will set out its legitimate aim(s) in its Amended Response.6.5 The Tribunal will decide in particular:6.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;6.5.2 could something less discriminatory have been done instead;6.5.3 how should the needs of the Claimant and the Respondent be balanced?6.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? Reasonable Adjustments (Equality Act 2010 sections 20 & 21)7.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?7.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:7.2.1 Not postponing final sickness meetings (the Stage 4 Long Term Sickness Absence Meeting);7.2.2 A requirement to use a pump truck and not to consider alternative duties.7.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that he was unable to attend the final hearing and unable to present his arguments why he should not be dismissed. The Claimant was unable to use the pump truck due to his wrist condition and nerve damage, therefore a consideration of an alternative role (or placing him in the redeployment pool) may have helped to keep him in employment.7.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?7.5 What steps could have been taken to avoid the disadvantage? The Claimant suggests:7.5.1 Postponing the final hearing on 23 November 2022;7.5.2 Finding the Claimant an alternative role or placing him in the redeployment pool.7.6 Was it reasonable for the Respondent to have to take those steps in or around November 2022?7.7 Did the Respondent fail to take those steps? Remedy for discrimination or victimisation […] 8.6 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result? […] Approved by: