[1]The claimant was not unfairly dismissed by the respondent and her claim of unfair dismissal fails.[2]The claimant’s claim of age discrimination fails.[3]The claimant’s claims of disability discrimination fail.
REASONS
[1]After judgment had been given these reasons were requested by the claimant. This was the hearing of a claim presented on 31 May 2018. The claim had been the subject of a case management hearing on 30 November 2018 before the present judge and, by telephone, on 1 May 2019 before Employment Judge Cassel. The claimant was professionally represented at the time of presentation of the claim, and remained so until mid-June 2019.[2]At the November 2018 preliminary hearing I had listed the case for a five day hearing in November 2019. Those dates could not be maintained, and the present listing was issued to the parties on 19 December 2019.[3]At this hearing there were agreed bundles approaching 650 pages. We were referred to a small number of key documents. The claimant’s case was heard first, and this hearing was limited to liability only.[4]The parties had exchanged witness statements. The claimant had provided witness statements on her own behalf. The tribunal accepted as read the statement of her former colleague, Ms Rachel Taylor, who described arrangements made for her to change voluntarily from cabin crew to nonflying duties in about 1999. That evidence did not assist the tribunal.[5]The claimant had served witness statements from other former colleagues which we did not accept. The statements of Mr McIntosh and Mr Edmunds dealt with their own experiences and their own observations about the respondent. They were not relevant to this case. Mr Donello had submitted a witness statement, which in reality was opinion and submission. We assured the claimant that it is not necessary in the tribunal for a claimant to submit character evidence.[6]The respondent’s witnesses, in order of giving evidence, were Ms Natalie West, the claimant’s line manager, who had dismissed her; and Ms Sarah Martin, fleet manager, and Ms West’s line manager, who had rejected the claimant’s appeal against dismissal.[7]We were grateful to the parties for their effective use of time. Evidence and submissions concluded on the third day of hearing. The tribunal met in chambers on the fourth day, and judgment was given by CVP on the fifth and final listed day.[8]We summarise the case as follows. The claimant, who was born in 1965, joined the employment of BA as cabin crew in 1998 and was dismissed on 5 January 2018. She had completed nearly 20 years’ service. This case was heard on the unchallenged basis that the claimant was an effective colleague, whose commitment to her work was not questioned. She was dismissed in accordance with procedures relating to attendance management, including ill health management. The tribunal found that her dismissal was fair, and that issues of age and/or disability played no part whatsoever in any of the decisions before us. Case management[9]We set out a number of case management issues and matters which arose.[10]On the first morning, before the start of evidence, Ms Brown asked for an adjournment, on the basis that the company considered that the claimant, who had been shielding due to an underlying health condition, should in accordance with official guidelines have remained at home until 1 August 2020. There was no specific medical evidence about the claimant’s attendance or her ability to proceed. The claimant was present with a representative and friends, and wished to proceed. She briefly explained the shielding arrangements which she had had in place.[11]It seemed to us that while the respondent’s reasons for making the application could be understood in principle, the tribunal should not, in the absence of specific medical evidence, interfere with the claimant’s judgment in the matter. The adjournment was refused.[12]We proceeded relatively informally. The claimant was seated at a permitted distance behind Mr Donello, and it was necessary on occasion to allow her to intervene informally during Mr Donello’s cross-examination.[13]The claimant began her evidence on the afternoon of the first day of hearing. In the course of cross-examination, it appeared to the tribunal that the claimant was struggling to answer, seemingly because letters in the bundle sent to her some considerable time before this hearing, and which were crucial in evidence, appeared unfamiliar to her. In short, she seemed unprepared.[14]We therefore adjourned early and asked Ms Brown to email Mr Donello a list of the pages from the bundle which the claimant should most fruitfully read overnight in preparation for the remainder of her cross-examination. In that circumstance, we invited the respondent’s comments on whether the claimant should be released from oath for that to be done. The respondent did not object, and the claimant was therefore released. The following morning Mr Donello mentioned that he and the claimant had worked late on further preparation.[15]The claimant’s evidence continued until late morning on the second day. Ms Martin gave brief evidence, about EG300 (see below), following which Ms West gave her evidence for about two and a half hours. Ms Martin was then recalled for about another one and a half hours.[16]It appeared to the tribunal during the respondent’s witness evidence that reference had been made to potentially discoverable documents. We understood there to be possibly a log of HR advice sought by Ms West in the management of the claimant and we adjourned so that Ms Brown could make enquiries. She reported that there had been a log tracked to Ms West’s name (not that of the claimant) but that it had been deleted in 2018 at the time of a change of system.[17]Ms Brown gave closing submissions on the third morning, after which we took an extended lunch break so that Mr Donello could finalise his reply. Both parties produced submissions in writing. The tribunal met for deliberations on 23 July (when CVP facilities were not available), and delivered judgment by CVP on the final morning. General approach[18]We preface our findings of fact with a number of general observations. In this, as in many cases, evidence and comment touched on a wide range of points. Where we make no finding about a point which was mentioned; or where our finding does not go to the depth to which the parties went; that is not oversight or omission. It represents the extent to which the point was truly of assistance to the tribunal, irrespective of the strength of feeling about it.[19]We understand the burden of obtaining and paying for legal advice and we are grateful for the support given by voluntary advisors to members of the public in difficult circumstances. We do not expect lay representatives or parties to have a lawyer’s understanding of the law. We accept that Mr Donello gave the claimant the support of a loyal friend, and that although unfamiliar with the tribunal’s procedure, he had prepared carefully for the hearing. That said, it seemed to us that the claimant’s preparation and understanding of her own case fell short of what would enable her to do justice to herself. We have referred above to our decision to adjourn during the claimant’s evidence. It was not clear to us that the claimant understood the list of issues or its significance (82-85); and it became clear that she did not understand the process by which Professor Stebbing had been appointed, or the reasons for his appointment, or the precise impact of his report: we deal with these matters later.[20]The claimant presented what appeared to us a highly personalised case about her former colleagues and managers, notably but not solely Ms West. When she repeated what she said were Ms West’s words to her, she put on a false voice to do so; when the judge mentioned this while giving judgment, the claimant interrupted to say, ‘She (Ms West) is a liar.’ There was no evidential basis for the claimant’s collateral attacks on others: it was, we noted, put to both Ms West and Ms Martin that they might have had a financial incentive to dismiss the claimant. We accept that there was not. Likewise, while we understand the claimant’s disappointment with Professor Stebbing’s report, her speculation about him, and about his relationship with BA, did not assist us or have an evidential basis.[21]The tribunal looks to an employer to follow the standard of a fair and reasonable employer in light of its size and administrative resources. We temper that expectation with realism. We do not expect a standard of perfection of anyone, and we accept that mistakes are made at work, sometimes serious ones. We do not follow Mr Donello’s reasoning that where a person makes a mistake (eg Ms West wrongly revoked the claimant’s travel privileges) its effect is automatically to unravel or undermine everything said or done by that person. Setting the scene[22]The claimant joined BA in 1998 and was a member of a group of cabin crew known as World Wide Fleet (WWF). Apart from a three month period in 2017, she worked full time. As Ms Martin explained, the respondent began in about 2010, and in accordance with a corporate plan, to recruit to a new cabin crew group called Mixed Fleet (MF). It ceased to recruit to WWF. Ms Martin said that the average age of cabin crew in WWF is about 46 and in MF about 36. She said that the cost to the respondent of a WWF employee is about twice that of an MF employee. She agreed that the respondent seeks with passage of time and natural wastage to move all cabin crew staff to work on MF contracts. The cabin crew on WWF contracts are aware of this.[23]The respondent recognises a significant trade union presence among its employees. At all material times the claimant was a member of BASSA, which is a section of Unite. It is an active and vociferous representative of individual members, and we noted that BASSA representatives were present at all face to face meetings of which we were shown records. EG 300[24]The respondent has procedures for dealing with a range of workplace events and contingencies. Contractual procedures are known as EG procedures. The relevant procedure in this case was EG300, which is the absence management policy. The bundle contained the versions of September 2013 (88) and of March 2017 (107). We were not made aware of any material difference between the two, and we refer in this judgment to the policy of March 2017, which was in place at the time of the claimant’s dismissal.[25]While the document should be read in full, we refer to a number of highlight points. The policy is company-wide and contractual. It explains its reasons and principles (109). It is supported by guidance on how discretion should be exercised (139A). It is set out in four Sections, of which Sections 1 and 2 are mainly concerned with principles and procedures for monitoring absence, and Sections 3 and 4 with procedures which could eventually lead to dismissal for absence. Section 3 in turn is broken down into four Stages. We note in particular the following provisions:-25.1 That at in principle concerns about fitness for work should be discussed and if need be the subject of advice from the respondent’s occupational health team (knowns as BAHS) (Section 1.10, 112);25.2 The policy contains an absolute right to accompaniment during any meeting at any stage (Section 2.1, 113);25.3 The right of appeal first arises at a Stage 3 decision and exists thereafter (Section 2.3, 114);25.4 There is departmental discretion as to who should hear appeals but they are normally heard by the next level of line management, ie the line manager of the manager whose decision is under appeal (Section 2.3, 114).[26]We note the considerable extent to which EG300 gives managers discretion, to be exercised in accordance with guidance (139A). The existence of that discretion reflects the scope and flexibility of the procedure, which applies to the entire range of human experience and contingency, and enabled a manager, within the framework, to balance operational need with individual considerations and common sense humanity.[27]The policy is subject to three trigger points which are defined in Appendix 1 (123). They trigger investigation into absence. They were(1) two or more absences in any rolling three months; or(2) absence of 4.5% of available working hours in a rolling twelve months; or(3) absence which exceeds 21 consecutive days.[28]The second of these perhaps needs explanation: given the variety of working patterns, the average of 4.5% equates to 10 days of a full time role. The term “rolling 12 months” or “rolling 3 months” is counted backwards from any current day. Sections 3 and 4[29]EG 300 Section 3 and Section 4 together run to eight pages (114-122) which we can only summarise. Section 4 deals with two specific events: absence in excess of 21 consecutive days or absence (of any length) which affects an employee’s ability to work for medical reasons. It was only in cases arising under Section 4 that redeployment or medical retirement might be considered.[30]The crucial part of the policy is Section 3, which is called Absence management process. Absence management depends on periods of absence in accordance with the trigger points. The procedure sets out clearly that absences which are attributable to disability under the Equality Act are discounted from trigger counting, but are otherwise recorded and form part of the absence record (115).[31]Section 3 falls into four Stages. The first two stages in short are stages at which a trigger point is reached, a meeting (‘ARI’) takes place, and an improvement plan is then set, subject to review or time limit.[32]Stage 3 is reached after earlier stages have failed to produce an acceptable improvement level. The importance of Stage 3 is that it gives rise to a right for the manager to issue a final written warning, which in turn gives the employee the right of appeal. After Stage 3, the next stage is called the final stage. As the name indicates, that is the stage at which termination of employment may be considered. It is perhaps important that the stage is named as it is, rather than Stage 4, so that an employee can be in no doubt of what it may lead to.[33]The respondent had an in-house occupational health service, BAHS, which consisted of two clinically qualified doctors, and two support staff, who held an occupational health qualification, but were not doctors or nurses. Mr Donello was dismissive of the qualification and experience of the non-doctors. We do not agree. They had a qualification in occupational health which was not that of a doctor. We had no reason to doubt that the two advisors whose names were mentioned (Ms Hayes and Ms Persaud) had an understanding of when they might seek the advice of a clinically qualified colleague, and that they had authority to do so in appropriate cases. There was no evidential base for Mr Donello’s suggestion that BAHS staff might have a financial interest in the number of employees who were managed out of the business on the basis of their advice. Application of EG300[34]The claimant’s line manager after March 2016 was Ms West. She told us that she line managed about 150 cabin crew and she in turn reported to Ms Martin, who managed Ms West and nine other Fleet managers, and was therefore responsible for the absence and attendance management of some 1500 staff. Ms West explained that the triggering process was not monitored by her, but by the separate team which recorded attendance and absence. The bundle contained a number of letters in which the claimant was notified that a trigger point had been reached and that she was invited to attend a meeting with Ms West: Ms West’s evidence was that those letters were sent by another team, and passed to her to deal with.[35]Mr Donello and the claimant were highly critical of EG300, repeatedly commenting that it was so badly written and unclear as to be unfit for its purpose. We agree that it cannot be understod at a single reading. We make no criticism of its structure or presentation. Like many workplace documents, which an outsider may find opaque, we find that it was clear to those who operated it frequently, including Ms West, other members of management, and trade union representatives.[36]Its complexity lay in the number of stages and sections; in the fact that they could overlap or run simultaneously; and that it is a single document endeavouring to cover the whole range of human experience. That range included situations where a health issue was deeply emotive, and where an employee might come to be dismissed as a result of events for which she was not at fault: both of those factors applied in this case.[37]We were struck by the respect which it accords to trade union accompaniment; and the repeated importance which it lays on the written word. Both of those are indications of good practice, and of ensuring that employees, who may be upset by discussion of their job security and of their health, have the opportunity of doing so with accompaniment; and with the safeguard that any decision which follows will be communicated in writing.[38]The claimant’s general evidence was that she was potentially disadvantaged by language. The claimant’s mother tongue is Turkish and English is her second language. Her spoken English is near fluent and accented. Her written English is clear, but occasionally ungrammatical. We have read a number of emails written by the claimant, and we have heard her give evidence for some hours and participate in the case proactively thereafter. We are confident that language issues placed her at no disadvantage, and that linguistic misunderstanding played no part whatsoever in any of the matters before us.[39]The bundle contained many letters sent to the claimant by Ms West. Some of them are lengthy, because they each incorporate the rolling history which preceded them. The claimant’s evidence was that she took from each meeting what she understood to be the amicable approach of the manager, and reassurance that the manager;s aim was not to dismiss her. She said that therefore she did not need written confirmations; that she did not accept that the letters in the bundle had been sent to her; that she invited the tribunal at least to consider that some of them had deliberately not been posted to her; that if she had received any, she had not read them; and that if she did read them, she did not understand them.[40]There was a compelling piece of evidence to support that the claimant had not understood the letters sent to her. In a lengthy letter of 19 April 2017 (225) Ms West had informed the claimant of a final written warning, and its operation and consequence (233-234). When early the following year the claimant was dismissed, her appeal contained the assertion “I had no warning of this situation happening to me, no final written warning,”(276).[41]Our general finding is that the respondent acted entirely correctly after each EG300 meeting by confirming the content of the meeting in writing. It would be a severe dereliction of its responsibilities if it had not done so. We reject as absurd the suggestion that Ms West deliberately withheld letters from the claimant. Not only would that indicate a complete lack of professional integrity on her part; it would be particularly pointless as each meeting was attended by a trade union representative who was familiar with the procedure and with the requirement for written confirmation. If the claimant had difficulty understanding, the importance of written confirmation was enhanced. Written confirmation ensured that the claimant had a record of the meeting in permanent form, could take advice on it at home and at her leisure, and could discuss it with her BASSA representative if need be. Specific fact find[42]The claimant was born in November 1965. She joined the respondent as cabin crew in 1998.[43]A schedule in the dismissal letter recorded that between her start and 11 March 2011, the claimant had 17 occasions of absence, with a total absence of 77 days (270). Nothing turns on that history in this case.[44]The same schedule shows that between 12 March 2011 and May 2014 the claimant had eight occasions of absence, totalling just under 400 days. She had treatment for what Professor Stebbing later described as ‘aggressive’ breast cancer. Absences related to cancer and cancer treatment were discounted from trigger points but formed part of the record. The claimant fell within s.6 of the Equality Act from the point of diagnosis until her dismissal, and although it may appear to be a legal technicality, it was surprising that that was at times unclear to health and HR professionals who managed her. However no more turns on the point.[45]The same schedule (271) indicates that between about 23 May 2014 and 6 February 2015 the claimant had no absences; she then had two absences within a period of four months, and on 21 September 2015 attended an absence review interview (ARI) under Stage 1 of Section 3 of EG300. A summary of the meeting and its outcome were set out in a letter the same day (164). The claimant was at Stage 1 issued with a 12 month improvement plan to run to 14 July 2016.[46]The bundle contained a very clear letter sent to the claimant on 16 December 2015 (166) by Ms Harman, her then manager and Ms West’s predecessor. The letter confirmed that the claimant was then no longer being managed under Section 4 of EG300 (ie on the basis of having had long-term absence or absence which might affect her ability to work) and that she was currently in Stage 1 of Section 3, and working in accordance with the improvement plan set on 21 September 2015. The letter is a useful snapshot of how matters stood when Ms West became the claimant’s line manager in about March 2016. It also illustrated how EG300 was applied in practice.[47]The claimant’s next ARI was on 11 July 2016, with Ms Jones, and dealt with absences in March and May 2016. By letter dated 11 July 2016 (174) Ms Jones set a further 12 month improvement plan to run up to 31 March 2017. The letter confirmed that the claimant was then being managed under Stage 2 of Section 3. Ms Jones advised the claimant that in the event of a further trigger she would move to Stage 3.[48]We note in that letter the application of a procedure which was mentioned to us, namely regulatory discount. In short, the guidance to managers on exercise of discretion (139A) advised that absences attributable to down trip illness should be discounted. The claimant’s absence in May 2016 had been due to illness while in Phoenix, and was accordingly discounted. It is a minor point in the case, and we record it because a subsequent issue arose about any recent application to the claimant of regulatory discount.[49]Shortly after the ARI in July 2016 the position deteriorated. In a period of 21 weeks in the second half of 2016 the claimant had four absences totalling 26 days. The recorded reasons were for colds, an ear condition, and a bowel problem.[50]The claimant’s next ARI was on 8 December 2016 with Ms West, outcome given in a lengthy letter of 19 January 2017 (199). The outcome is summarised at #54 below.[51]The most recent absences in consideration were those in 2016: there were 11 days in March for an ear issue; five discounted days in Phoenix in May; a period of 11 days due to haemorrhoids; and discounted periods of four days in September, and five in October; shortly afterwards there were six more in December. The claimant’s total number of days absent in 2016 including December was therefore 42, on six occasions, of which 20 days were discounted from trigger points.[52]Ms West discussed the history with the claimant, and also raised the issue of reduced hours, working at 75%. They discussed whether this might be a temporary arrangement or permanent. Ms West also arranged for the claimant to see Ms Hayes of BAHS the same day.[53]BAHS reported (203) that the claimant had asked for a reduction to 75% in the short term, which was implemented for three months from 6 February 2017 (204), with a contract variation to that effect.[54]The position therefore at the beginning of 2017 involved a number of steps to help assess the position. One was that the claimant would reduce her hours; one was that there would be further medical enquiry; and, perhaps slightly confusingly, the outcome letter (#50 above) (204) said that the claimant was being managed both under Section 4 of EG300 (for those medical issues which might give rise to absences of 21 days or affect the claimant’s ability to perform her duties); and at the same time under Stage 3 of Section 3 in relation to everything else.[55]An issue subsequently arose as to the viability of 75% hours. The claimant asserted that her understanding was that she would work 75% hours for 100% of basic pay but that her allowances would be reduced by 75%. It is true that Ms West did not inform the claimant that working at 75% hours would involve reducing to 75% pay. We accept as a matter of general common sense that that stands to reason unless the contrary is stated. We do not accept that the claimant was in any way misled. She was at the December 2016 meeting accompanied by Mr Woodward of BASSA, and had she been in any doubt, she could have asked for clarification.[56]There was a subsequent peripheral issue as to whether or not the claimant would or could apply to work 75% on a permanent basis. It appears that that might have been available to her, but that she missed the opportunity to apply. This point did not assist us.[57]Evidence at this hearing turned on Ms West’s comment in the letter of 19 January 2017 that the claimant’s absence between 27 July 2016 and 10 August 2016, which was for thrombosis haemorrhoid treatment, could not retrospectively be discounted. Mr Donello cross-examined at some length as to why that was, and where there was express authority for it in EG300. Although the point did not greatly assist us, our finding is the following.[58]The word “retrospectively” was perhaps misused and the more accurate word might be “retroactively”. The point however is a straightforward one. The claimant asked for the haemorrhoid absence to be discounted because she believed it to be connected to the underlying medical condition, namely cancer. She therefore asked for it to be discounted in accordance with Section 4 of EG300. However, at the time of the absence the claimant was not yet in Section 4. We accept that she was not entitled to the benefit of Section 4 at a time when she was not being managed under that Section. No more turns on this point.[59]Later in January 2017 Ms Hayes of BAHS reported that while the claimant was fit to fly, she had asked for “documented medical information so that I can make appropriate decisions for her care pathway and accurate and timely recommendations to management.” (210)[60]A subsequent issue arose about the provision by the claimant of medical documents to BAHS. The claimant’s oral evidence was that she put a small number of items, maybe six or seven pages in all, in internal mail to BAHS, which she was later told had not arrived. After the claimant had given evidence and when the point arose again, Mr Donello stated that the claimant had misunderstood the question, and had meant to say six or seven manila folders of documents, not of pages. However, the items were not received by BAHS.[61]The claimant attended the next ARI meeting on 1 February 2017. The outcome letter was not sent until 22 March, with an apology and explanation of the delay (214). She was accompanied by Mr Tattersall, who we understood was an experienced BASSA representative. The meeting considered further absences in October and December 2016. There was clearly some discussion about satellite issues that had arisen between the claimant and Ms West, which did not form part of this case. Ms West thought it necessary to assure the claimant that she had not sought to mislead her about any aspect of her employment and to state that there had been some misunderstanding. The meeting was adjourned to 11 April.[62]In her letter of 22 March Ms West wrote that the options under consideration in due course (but not yet) may include “termination of your contract under EG300 Section 4 as a last resort. However, I sincerely hope that we will be able to support you back to work” (218). Although in the event the claimant was not dismissed under Section 4, we note that this was the first occasion when the claimant was told plainly that the health issues could not continue indefinitely and might lead to the end of her employment.[63]The claimant attended the next ARI on 11 April with Ms West, accompanied by Mr Tattersall. The meeting led to a lengthy outcome letter of 19 April (225). Although the claimant at this hearing gave little credit to her BASSA representatives, Mr Tattersall is recorded that “he asked me to consider discounting a period of absence as you had not had a regulatory discount since 2008.” That was an indication that Mr Tattersall had prepared the case proactively and understood his role. However, he was mistaken in fact, given our above finding about the Phoenix discount in 2016.[64]The conclusions were set out at page 233, and should be read in full. Ms West confirmed that in light of her attendance record, the claimant had reached Stage 3 of Section 3. She set a 12 month improvement plan to run to 19 March 2018 and stated that she issued a final written warning. She explained the implications of the improvement plan and of the final written warning. Although the phrase “final written warning” is clear, (and would have been very clear to Mr Tattersall) Ms West explained it, and the claimant was advised of her right of appeal.[65]This was a crucial meeting and a crucial letter. The claimant said that Ms West’s manner at the meeting was such that she did not understand that her employment was at risk, and that she either did not receive or read or understand the letter. We find that Ms West’s conduct of the meeting is not to be criticised: she was managing attendance not conduct, and was entitled, and correct, to do so in an amicable and courteous manner, which sought to reassure the claimant that the objective was to facilitate her effective return to duty, and not to get rid of her. She could see that the claimant was accompanied by an experienced representative.[66]We find that the outcome letter was clear in relation to stage management and the issuance of a final written warning. We accept also the likelihood that Mr Tattersall advised the claimant after the end of the meeting that there would be written confirmation, which she should read with care.[67]The claimant did not appeal. We accept Ms Martin’s evidence, which was that most staff being dealt with under this part of EG300 do appeal at that stage, given the importance of the matter and given that that is the first occasion within the procedure at which the right of appeal arises. That is some indication that the claimant did not read or understand the letter, or seek, or follow, the advice of BASSA.[68]In a second letter the same day (19 April) Ms West informed the claimant that she had left Section 4 of EG300 and was being managed under Section 3 (235).[69]The claimant had a 14 day absence starting on 31 August 2017 for an ear condition. She therefore failed to meet the Stage 3 improvement plan which had been set in April, and was invited to a further ARI. Ms West sought the guidance of BAHS, this time through Ms Persaud, who had replaced Ms Hayes (243). Ms Persaud’s advice was the claimant should see her GP about a referral to ENT, but that she remained fit to carry out her contractual role and to fly, and that she was likely to be protected by the Equality Act.[70]The claimant attended her next ARI on 7 December 2017 accompanied by Mr Wilson and Ms Mander of BASSA. The invitation letter alerted her to having reached a point at which termination of her employment was under consideration (6 December, 246). The meeting could not be concluded that day, and was adjourned briefly to 4 January 2018 while Ms West awaited further guidance from BAHS.[71]It will be recalled (#59-60 above) that the claimant had earlier in 2017 been asked to send medical documentation to BAHS. It had by that stage emerged that it had not been received. It was common ground before us that the claimant attended the ARI on 7 December carrying a bag of papers which she said were medical information. Ms West declined to accept them on the basis that they were medical and would therefore have no meaning for her. The claimant’s evidence was that after the meeting with Ms West she went to the BAHS office with the same papers, but that BAHS declined to accept them. (We noted that much later Professor Stebbing wrote that the claimant attended her appointment with him carrying what he described as, “a bag containing all sorts of things” (368)). We could not fault Ms West, as a medical lay person, for refusing to accept medical material. We can understand that BAHS declined to accept what may have seemed to be substantial disorganised paperwork.[72]Although at this hearing the claimant was concerned first by the loss of the papers which she had put in the internal post; and secondly by the refusal of Ms West and BAHS to accept what she had brought them, we have no evidence that there was, anywhere in this material, paperwork which would have made a difference. In so saying, we attach particular weight to the fact that any relevant issue might have emerged from what appears to be the comprehensive medical records considered by Professor Stebbing before he wrote his report.[73]The outcome letter (258-272) of 15 January 2018, which was also the dismissal letter, set out the detailed history since September 2015. The letter set out the totality of the claimant’s recorded absences, including those which had been discounted. Including the discounted, the claimant had had 76 days absence on ten occasions in the three years before the final ARI (271).[74]Ms West made the decision to dismiss. She decided upon dismissal with immediate effect on 5 January 2018 and advised the claimant of her right of appeal. We note a number of aspects of Ms West’s decision to dismiss:-74.1 We accept that she considered the history, the reasons for absences, and their pattern, and found that the claimant had failed to sustain improvement;74.2 It follows that she accepted that all proper medical absences were certificated and there was no suggestion in this case of any inaccuracy in any of the reasons for absence provided by the claimant;74.3 Up to date information was available from BAHS and was to the effect that the claimant was fit to fly. Ms West therefore knew that the mechanisms for career transfer referred to in Section 4 of EG300 did not apply to the claimant’s circumstances;74.4 The claimant did not ask to transfer to a ground based role to avoid any physical impact of flying, and indeed her commitment was always to the flying role.74.5 Although the appropriate discounts had been applied to triggering, discounting did not apply to the overall calculation of absence.[75]We accept that Ms West also gave general consideration to the issue of the management of absence and the impact of absence on the business.[76]Mr Donello made much of the point that a few weeks after dismissal, a voluntary redundancy scheme was launched by the company. If the respondent had delayed dismissing; or even if it had given notice rather than immediate dismissal, the claimant could then have applied for redundancy. It was unfair, he submitted, to deprive the claimant of access to application for voluntary redundancy.[77]We accept the integrity of Ms West’s and Ms Martin’s evidence that they did not know that the voluntary redundancy scheme was about to launch. We also accept from Ms Martin that giving notice would not have made a difference because if the claimant had a set leaving date (because she was under notice) she was no longer eligible to apply for voluntary redundancy.[78]We record one matter of legitimate concern to the claimant. On 17 January the respondent wrote to her about the matters consequent on her leaving the business, such as her pension and future relationships. The letter (274) stated that she had no future entitlement to staff travel. That was a mistake. She was entitled to staff travel benefits after dismissal for incapability. We were told that this mistake was not drawn to the respondent’s attention until service of the schedule of loss in these proceedings, and that the claimant’s staff travel has been reinstated. We accept that this was a genuine error, for which Ms West accepted responsibility. If we are asked to attach weight to it as a factor in considering either fairness or discrimination, we decline to do so.[79]The claimant appealed against her dismissal. Her email of appeal stated that she wished to present additional medical information. She also wrote that “many meetings were conducted over the telephone.” We were not aware from evidence of more than one meeting being conducted by telephone. That was the meeting of 4 September 2016 (184) and we note that Ms West’s subsequent letter said, “This meeting was held over the telephone as mutually agreed”.[80]In her appeal, the claimant wrote (276), “I have no recollection of exiting section 4. It was not made clear to me and I did not understand that my absences would not be discounted within the guidelines of EG300 section 4 and the Equalities Act. I strongly believe an absence should have been discounted as there were issues connected with the previous underlying medical condition, however because I was not in section 4 I received no discount. Please may I also add that I had no warning of this situation happening to me, no final written warning, and no idea that I was facing losing the job I enjoy, respect and that I have always been 100% committed to.”[81]The claimant’s appeal letter is of some importance, because it captures much of the claimant’s inability to absorb important information given to her in writing by the respondent. As our findings above indicate, the appeal letter could not be reconciled with the following:-(a) The letter informing her that she exited Section 4 (#68 above);(b) The wording of EG300 on discounting (#30 above);(c) The benefit of discounting applied to the claimant throughout her employment (#44 and 48 above);(d) The final written warning letter of April 2017 (#64-66 above);(e) The invitations to the claimant to meetings at which termination of employment would be under consideration (#70 above).[82]Ms Martin was Ms West’s line manager, and was therefore the appropriate person in accordance with EG300 to hear the claimant’s appeal. Mr Donello probed whether that was appropriate. Ms Martin’s evidence was that she line managed 10 in-flight business managers, each of whom in turn line managed about 150 cabin crew. She had a monthly meeting with each of her direct reports. She expected each direct report to give a general report and overview of his or her case work and case load. Ms Martin did not become involved in the management of Ms West’s direct reports as a general rule. She had had no involvement in the management of the claimant. She considered that she was aware of the risk that might follow if she had done so. In other words, she understood that if any appeal might engage a decision to which she had been party, she knew that there would be legitimate concern as to whether she was the proper person to hear the appeal.[83]Mr Donello put that there was an inherent conflict of interest in a line manager hearing an appeal against a decision of her direct report. He did not explain what the conflict might be and we do not find that there was any reason in principle against Ms Martin hearing the appeal. In reply to a question from the tribunal, Ms Martin said that she had heard about 25 appeals against dismissals by her direct reports, and that in none of them, including this one, had an objection been taken to her hearing the appeal.[84]Mr Donello put to Ms Martin, as he had put to Ms West, and as he insinuated against BAHS staff, questions about whether she had a financial interest in the claimant’s dismissal. His point was to test whether any of the decision makers might have a performance indicator, potentially related to pay, according to the number of staff whom they had managed out of the business. We accept the denials of both witnesses before us. There was no evidence of this. No member of this tribunal has ever encountered a dismissal in any setting where that has been the case. Any dismissal by a manager who stood to benefit financially from dismissing that employee would almost by definition be unfair in every case. It would be surprising if such a system operated, without challenge, in a major employer with an active trade union presence.[85]Ms Martin made arrangements for the appeal to be heard. The claimant obtained a medical report from the Egemed clinic in Turkey (290). The report is a one page letter of 5 February 2018. It stated that the claimant had been “our patient and received treatment when required by our medical team”.[86]It set out a brief history, drawing on the claimant’s account, and stated that the claimant had been seen twice in 2017 “for routine and seasonal illnesses such as cold and influenza”.[87]The report then wrote: “It is not unexpected for even a patient in strong health to get such viruses around two times a year or more depending on circumstances and underlying based line health, especially when there is an epidemic. However, it would not be at all unlikely that a patient with potentially compromised immunity as is the case in our opinion with Ms Curness, to succumb to such viruses several times in a year. It is our medical opinion that Ms Curness has been vulnerable to ill health due to a weakened immune system compared to others following her treatment for cancer. She did inform us that she is prescribed some medication with a view to her ongoing treatment. One outcome of said medicines would be to strengthen her immunity over time. … We robustly believe that our patient remains capable of undertaking the requisite duties of her role as cabin crew.”[88]The claimant attended the appeal meeting on 28 February, with trade union accompaniment. The tribunal had notes of the meeting (in addition to the outcome letter). We accept that the notes are broadly accurate. Ms Martin had the authority to reinstate the claimant. In reply to a question from the tribunal she stated that her role was to consider appeal points. She had the right to consider new evidence or additional medical evidence. She was to look at the policy and process and decide if the decision to dismiss had been “broadly correct”.[89]The claimant presented the Egemed letter at the appeal. She confirmed that she was in remission. There was some early discussion about the claimant’s understanding of the EG300 procedure. It is clear from the note that Ms Martin was alive to the issue that the claimant believed and submitted that her intermittent absences of the previous three years, for colds, blocked ears, and the bowel problem were attributable to her cancer history. Ms Martin was also alive to the purpose of an attendance management procedure. She summarised the point (283) (‘Time’ emphasised in original, on ‘sustain’ added). “Stage 3 is about how much time you have been away from the business, is this time conducive towards this person being able to sustain their role. That is what EG300 is about, the ability to maintain a contract.”[90]Ms Martin went through the points raised in the claimant’s appeal letter. After doing that, she went through absences and triggers since 2015 (286-287), and that part of the note is a helpful summary. It summarised that the setting of each stage was that Stage 1 was set for 15 July 2015; Stage 2 for 1 April 2016; Stage 2 reset for 1 April 2016; and Stage 3 set for 20 March 2017.[91]She explained to the claimant that four of the occasions, totalling 35 days, were not discounted even though the claimant believed that they might and should have been. The claimant and her representative stressed her commitment to the job.[92]Ms Martin did not give an immediate decision. She reviewed the claimant’s file. She spoke to BAHS on 5 March and with the HR team on 7 March.[93]On 12 March she wrote to the claimant with a number of email questions, which are indicative of a meticulous and thoughtful process. The claimant replied the following day with her answers (291-297).[94]On 26 March Ms Martin wrote to the claimant to give her the decision to reject the appeal (297-308). She described the process which she had followed and summarised the points of appeal, and the points raised by the claimant.[95]Her reasoning is set out at page 305 and following, and the letter speaks for itself. To paraphrase: Ms Martin wrote that she could “see no obvious link to suggest that your short term illnesses were linked to your previous treatment for cancer.”[96]There was a related issue as to whether the claimant had asked for an NHS referral to an ENT specialist, but the material before Ms Martin was that this had not happened and there was no ENT evidence before her. She discussed the issue of discounting and explained that Ms Persaud had advised her that “her previous history will be a predictor of the future” (306).[97]Ms Martin agreed that the haemorrhoid absence in 2016 could not be retrospectively discounted under Section 4 and agreed with Ms West’s decision that the way to deal fairly with that issue in December 2016 was to reset the claimant at Stage 2 at that point. She rejected the ground of appeal which stated that the claimant had not been warned of a possible dismissal. Ms Martin’s rejection of the appeal was the conclusion of the EG300 process.[98]There is one further factual matter. As stated above, a second preliminary hearing took place by telephone on 1 May 2019. Judge Cassel’s order records that issues were still outstanding “in relation to the allegation of unlawful discrimination arising from disability and the parties have reached some agreement that joint instructions should be provided to a medical expert who has been agreed.” The judge was under no obligation, in a case in which both parties were professionally represented, to explain the framework for what both had plainly agreed. It was of concern to this tribunal that the claimant’s remarks to us indicated that she did not understand this part of the case and we therefore summarise the position.[99]The claimant had brought claims under s.15 of the Equality Act. That section prohibits discrimination on the grounds of something arising in consequence of a disability. It is applicable in cases where the employer’s behaviour is said to be linked not to the disability as such but to something which has been caused by the disability. That “something” is very often absence, and that was the position in this case.[100]The broad question for Professor Stebbing therefore was whether or not in his professional expert opinion the claimant’s absences from 2015 onwards arose from her cancer history.[101]The legal representatives appear to have followed the usual professional procedure in such a situation. They agreed that there should be a single expert to advise both sides; they agreed the language of the letter of instruction to the expert; and we were told that the respondent’s solicitors put forward a list of experts, from whom the claimant’s solicitors selected Professor Stebbing. The joint letter of instruction set out three specific agreed questions to be answered (362), which were whether, “the claimant’s cancer and/or cancer treatment caused, had the consequence of, or resulted in the colds / ear complaints / bowel complaints for which she took sickness absence between March 2015 and 5 January 2018.”[102]Professor Stebbing’s ‘Professional credentials’ (366) summarise a career in which he is currently Professor of Cancer Medicine and Medical Oncology at Imperial College where he is lead clinician for cancer, and has authored or co-authored over 600 papers on the subject. He wrote that he has been instructed in several hundred medico legal cases, and therefore has familiarity with the process of report writing, and with the duties which an expert owes to the court.
Legal framework
[103]The claimant’s claim was of unfair dismissal. In headline terms, our first step is to identify the actual reason for dismissal; then to ask whether that reason falls within the scope of potentially fair reasons for dismissal in accordance with Employment Relations Act 1996 s.98(2). The tribunal must then consider the reason through the provisions of s.98(4), which provides, “[T]he 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.”[104]The claim of discrimination was brought in relation to the protected characteristics of age and disability. The claimant was aged 52 at the time of her dismissal. The claimant was diagnosed with breast cancer in 2011. She was then deemed to have a disability in accordance with Equality Act 2010, Schedule 1, paragraph 6(1). At the point at which she was cured (as Professor Stebbing advised had happened), she fell within s. 6(4) because she was a person who ‘has had the disability.’ She at all material times since 2011 was covered by one of these provisions.[105]Section 13 of the Act defines direct discrimination as occurring where “A discriminates against B if because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[106]Section 15 provides that “A discriminates against B if A treats B unfavourably because of something arising in consequence of B’s disability”. This provision applies where the treatment in question is said to be because of a consequence of disability. The claimant must demonstrate that there is a causative link between the disability and the alleged consequence. The application of this provision in this case is set out below in the discussion of this part of the case.[107]The duty to make reasonable adjustments arises and is set out under sections 20, 21 and 22 and Schedule 8 of the Act, and it would be disproportionate to set out those lengthy provisions here. The duty is not a general or free standing, but arises where a provision, criterion or practice of the respondent puts the claimant at a disadvantage. As set out below, in the discussion of this part of the case, the PCP must be more than an individual matter.[108]Section 23 provides that “On a comparison of cases for the purposes of section 13, 14 or 19, there must be no material difference between the circumstances relating to each case.” Discussion Unfair dismissal
Discussion
[109]When we come to the claim of unfair dismissal, we were greatly assisted by Ms Brown’s written submissions. Our first task is to find what was the reason for dismissal, namely the operative consideration in the mind of the dismisser at the time of dismissal. We find that it was the claimant’s pattern of absence, as defined and recorded in accordance with EG300. We find that that is a reason which relates to capability and therefore a potentially fair reason within the framework of the Employment Rights Act.[110]In considering fairness we must take the general caution not to substitute our own view and to note that at each discretionary stage the employer must act within a reasonable range. Ms Brown reminded us that Sainsbury’s plc v Hitt [2003] IRLR 111 states that the employer’s procedural steps in investigating before a dismissal are also to be considered within a range of reasonable responses.[111]We find that the claimant was managed within the framework of EG300. It sets standards and employer’s expectations within a structure balanced by discretion. It makes provision for the involvement and engagement of the employee at each stage in joint meetings, at which there is an absolute right to accompaniment. It attaches importance to the written word.[112]So far as material, our finding is that before each material ARI the claimant was informed in writing of what the issue was for discussion; given time to prepare for a meeting; afforded the right of accompaniment; and where necessary or appropriate the respondent agreed postponements of meetings, After each ARI the claimant was sent detailed written confirmation setting out the history which had led up to the ARI; the discussion at the ARI; the outcome of the meeting; and how matters were to go forward. (We have noted the exception, when by consent a telephone meeting took place on 4 September 2016).[113]We reject the claimant’s suggestion that Ms West wrote letters in confirmation and then deliberately failed to send them so as to mislead or cheat the claimant. An allegation of such gravity requires cogent evidence to support it and there was none. Furthermore, a moment’s consideration shows the sheer futility of such behaviour. At each stage the claimant was accompanied by a BASSA representative. We are confident that the BASSA representatives on each occasion understood that the outcome of each meeting was to be confirmed in writing, and that if the claimant had complained of that not being done, BASSA would have been quick to take up the point.[114]We accept that letters may be lost in the post. If after a meeting the claimant had not received written confirmation, it was open to her at any time to ask Ms West what had happened. We noted that on the one occasion when a confirmation letter was delayed, Ms West explained the delay (it was due to industrial action) and apologised for it.[115]In our judgment, the reality was that the claimant did not read the letters. We say that, rather than accept that she read but did not understand them, because the conclusions of each letter could not have been more clear, in particular those which alerted the claimant to changes of stage and a final written warning. It was in our view significant that she alleged in her appeal letter that she was not aware of stage changes or of the final written warning, when the written record showed the opposite.[116]We accept the reality that in a case of many short or medium length absences the argument can always be raised that it has been unfair to dismiss at a particular time, when a further period of delay might be permitted. We also accept the appearance in cases of this kind of the inherent unfairness of dismissing an employee for something over which she has no control.[117]We accept Ms Brown’s submission that the reasonable employer was entitled at some point in process to draw a line and say “enough is enough”. We accept that Ms West was entitled to have regard to the totality of the claimant’s employment history, including discounted absences and disability related absence.[118]In our judgment, at the point of dismissal, the material before Ms West included the history of intermittent absences; BAHS advice that the claimant was otherwise fit to fly, and that no issues arose which would require her in fairness to be dealt with under Section 4 of EG300; that the claimant had had a wealth of information, meetings, access to union advice; the opportunity to put forward written submissions or documents; and had had a lengthy period after a final written warning. We find that while Ms West could have delayed matters again, her decision not to do so was not unfair. At the point of dismissal, she had ample evidence before her to show that over a period of years the claimant had been unable to sustain the required level of attendance.[119]In rejecting the appeal, Ms Martin had all the above material, and was entitled to place limited weight on the Egemed letter, when set next to up to date advice from BAHS. She was also entitled to put weight on the fact that a number of the claimant’s appeal points could not be reconciled with the written record.[120]In our judgment the claimant was fairly dismissed for incapability and her claim of unfair dismissal fails. Age discrimination[121]The claim of age discrimination was brought under s.13 only, ie it was a claim of direct age discrimination. The claim was that the only act of age discrimination was the claimant’s dismissal. The claimant’s case was that she had been dismissed at least in part because she was a member of WWF, and therefore an older member of staff, and more expensive to employ than members of Mixed Fleet, who on average were younger and cheaper to employ.[122]The claimant put forward no evidence, other than those background matters, to indicate that age was a material factor in the decision to dismiss her. She put forward no comparator. She has proved no facts which cause the burden of proof to shift to the respondent. She has made no more than a bare assertion of a protected characteristic and the act of dismissal, with no indication of any causation.[123]If the burden had shifted, the tribunal would accept that it was discharged by our finding that the claimant was dismissed for incapability, and we would find that age played no part whatsoever in the decision to dismiss her. The claim of age discrimination fails. Disability discrimination[124]The claimant’s claims of disability discrimination were based on cancer. The claimant was at all material times a person with a deemed disability from the moment of her cancer diagnosis; and the tribunal need not consider for the purposes of s.6 the question of if and when that became a past disability. In our judgment, the claimant’s protection under s.6 was a seamless continuum. Direct discrimination[125]The claimant’s first disability discrimination claim was brought under s.13, and was a claim that her dismissal was an act of direct disability discrimination.[126]Our findings on the first head of claim in part parallel those in relation to age discrimination. The question for the tribunal is whether the claimant has shown facts from which in the absence of an explanation by the respondent the tribunal might infer that she was dismissed because she was, or had been, suffering from cancer. The analysis of s.13 is therefore different from that of s.15; the former requires us to consider whether the disability was any part of the effective cause of the dismissal. The claimant has produced no evidence to show that that was the case. We find that during the active stage of her illness and its treatment she benefited from very considerable support from the respondent. In our judgment, the burden of proof does not shift. If it did, we repeat our findings at #123 above.[127]The alternative pleading of direct discrimination was the question at issue 11: “Was the claimant not transferred to a ground role because she had been disabled”.[128]The question of the ground role seemed to us something of a red herring throughout this case. We repeat: the claimant never asked for a ground role; it was common ground between both sources of medical evidence at the time (BAHS and Egemed clinic) that the claimant was fit to fly. Professor Stebbing later agreed. The claimant was at pains to stress her love of the flying role and her commitment to it.[129]The claimant did not, at point of dismissal, come within Section 4 of EG300, and therefore had no contractual entitlement to be considered for career transfer.[130]The claimant identified two comparators. She was however plainly not aware of s.23 and may not have understood it when the judge briefly tried to explain it.[131]The importance of the comparator is that he or she should be in the same shoes as the claimant in every relevant respect except the protected characteristic. The claimant complained that Mr Tattersall, who had what she described as an ankle injury which prevented him from flying for several months, was offered a ground role. She therefore claimed a difference in treatment. That evidence rang an alarm bell with the tribunal, and Ms Martin was asked by the tribunal if that was an accurate summary of the health issue. It occurred to us that six months was a long time for a sprained ankle to heal, and equally that Mr Tattersall was entitled to personal privacy, and entitled not to share personal health information with his colleagues. Without going into any detail, Ms Martin’s answer was that there had been “more to it” than just the ankle injury; that Mr Tattersall had been certified unfit to fly; and that he had undertaken a ground role before accepting voluntary redundancy.[132]The material differences between the claimant and Mr Tattersall are that he was certified unfit to fly, and therefore came within Section 4, ie he was contractually entitled to career transfer. That was never the case with the claimant.[133]The claimant’s alternative comparator was Ms Anderson. However, we find that Ms Anderson’s health was such that she was found unfit for flying and then for any duties, and in due course took ill health retirement. The claimant was never in that situation.[134]The claim of direct discrimination which relates to the ground based role therefore fails. The claimant has not proved facts which caused the burden of proof to shift. The comparators whom she has chosen are not statutory comparators for the purposes of s.23, and they are not evidential comparators for the same reason. If the burden did shift, we would repeat our findings at #123 and #126 above. Discrimination under s.15[135]The claimant brought a further claim under s.15, which was that she was, in the words of the pleading, “treated unfavourably because of something arising in consequence of the fact that she had been disabled… the “something” relied on by the claimant was her absence.”[136]In the majority of cases, the causative link between the “something” and the disability is self-evident. In this case the respondent did not accept that the absences in the period 2015-2018, which were for colds, an ear condition, and a bowel problem, arose in consequence of the claimant’s cancer, or her treatment for it. We refer to #98ff above. Both sides jointly instructed Professor Stebbing to advise. We note the clear specific questions put to him at page 362.[137]In reply to the letter of instruction Professor Stebbing wrote that his report was based on “extensive documentation including medical records” and a meeting with the claimant. His unequivocal advice was (369), “I do not consider that the cancer or the treatment has resulted in colds at any level or any of her other complaints for which she took sickness absence between March 2015 and January 2018. I do not agree that her cancer or the treatment had caused any ear complaints for which she took sickness absence between March 2015 and January 2018.”[138]The claimant disagreed. She and Mr Donello expressed a number of concerns. One group of concerns related to the process of Professor Stebbing’s appointment and instruction. In our view the claimant did not understand this. Our finding is that the usual procedure for appointing a joint expert was followed. We accept that the expert was appropriately qualified in the field of advice. The claimant agreed that the respondent’s solicitors put forward a list of names, from which her then solicitors made a choice. Nothing turns on the fact that the letter of instruction was sent by the respondent’s solicitors or that the report is addressed to them: Professor Stebbing was jointly instructed and reported jointly. Mr Donello and the claimant engaged in collateral criticism of Professor Stebbing. We disregard the speculation on whether Professor Stebbing has a relationship with BA which would inhibit his ability to advise, and we disregard Mr Donello’s comments about information about Professor Stebbing online: neither of those were supported by evidence and neither seemed to us relevant.[139]The claimant commented on the “tone” of Professor Stebbing’s report. We share her concern, as perhaps did Professor Stebbing, whose final paragraph reads: “I am sorry if my report sounds unsympathetic to the claimant” (373). We agree that it does, and add that his report appears at times to be tainted by irritation. That is regrettable, but it does not lead us to discount or disqualify the material part of his report which has been quoted above.[140]We appreciate that Professor Stebbing’s report was not before Ms Martin. To the extent that it is part of the material before us, and we must resolve any inconsistency between it and the Egemed report, we accept Professor Stebbing’s report because it is the report of a specialist expert, based on a perusal of the full medical records, and because it specifically addresses the specific questions in this case. The Egemed report is expressed cautiously, in generalisations, and does not answer the specific questions required in this case.[141]It therefore follows that the claim under s.15 must fail, as we accept expert evidence that the absences in the final three years of the claimant’s employment did not arise in consequence of the disability of cancer. Reasonable adjustment[142]The final disability discrimination claim was the claim of the failure to make reasonable adjustments. The adjustment relied on would have been that the claimant was not deployed to a ground based role. We have dealt elsewhere with our findings as to why that in fact did not happen.[143]The PCP in the agreed list of issues was formulated as follows (84, emphasis added): “The claimant relies on the practice of maintaining a flying based role when a ground based role may be more suitable. (She confirms that this PCP is specific to her circumstances and is not a PCP applied more generally by the respondent)”[144]We do not agree that it has been shown that the PCP pleaded and quoted existed. We find that the matter complained of might be more accurately formulated as: “The respondent failed of its own initiative to consider transfer to non-flying duties as an alternative to dismissal.”[145]Approximately a year after the list of issues was agreed, and therefore at a time when the claimant was acting in person, the Court of Appeal handed down judgment in Ishola v TfL 2020 EWCA Civ 112.[146]Ms Brown drew to the tribunal’s attention the judgment of Lady Justice Simler, in which she dealt with the question of whether a single decision or exercise of judgment could constitute a PCP. The relevant passage is the following, in particular paragraph 38, emphasis added: “35. The words “provision, criterion or practice” are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words “act” or “decision” in addition or instead. As a matter of ordinary language, I find it difficult to see what the word “practice” adds to the words if all one-off decisions and acts necessarily qualify as PCPs, as Mr Jones submits. Mr Jones’ response that practice just means “done in practice” begs the question and provides no satisfactory answer. If something is simply done once without more, it is difficult to see on what basis it can be said to be “done in practice”. It is just done; and the words “in practice” add nothing.36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer’s PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones’ approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.[147]There was no evidence that the pleaded PCP (whether we adopt the claimant’s formulation or our own) was a state of affairs which applied beyond the present case. The claimant pleaded that it was an individual application. Indeed, the Section 4 procedure in EG300 envisages precisely circumstances in which any member of cabin crew might be transferred to flying duties, but in the circumstances defined in Section 4. The claimant did not come within it. In our judgment, the claimant has not shown the existence of a PCP which applied beyond her individual circumstances, and on that ground alone this claim fails.[148]Although it is not necessary for us to do so, we add that we struggle to accept that the adjustment contended for would have had the effect of reducing any disadvantage, in the light of the BAHS advice which was that the claimant was fit to fly in any event, and in light further of Professor Stebbing’s observation that non-flying duties would make no difference. _