Mr D Gallop v The Chief Constable of the Norfolk Constabulary: 3307564/2023

EMPLOYMENT TRIBUNALS

Case No 3307564/2023

Between

Mr D GallopClaimant

The Chief Constable of the Norfolk ConstabularyRespondent

Before

Employment Judge M Warren

Members

Ms J Buck and Ms S Williams

In person for claimant

Mr D Hobbs (instructed by Counsel) for respondent

Date 31 December 2025

JUDGMENT

[1]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds.

[2]The complaint of failure to make reasonable adjustments for disability is wellfounded and succeeds.

[3]The complaint of harassment related to disability is well-founded and

[4]The complaint of indirect disability discrimination is not well-founded and are dismissed.

[5]The remedy to which the Claimant is entitled will be determined at a Remedy Hearing to take place in person at the Norwich Employment Tribunal on 11 and 12 May 2026.

REASONS

[1]Mr Gallop was employed by the Respondent Police Force from 20 April 2015 to 27 September 2023, latterly in the role of Investigator in the Domestic Abuse Team. Early Conciliation was between 19 April and 25 May 2023. The claim form was presented on 1 July 2023 in which Mr Gallop brought a claim of disability discrimination. He was represented by solicitors at the time.

[2]The case came before Employment Judge Anderson for case management at a preliminary hearing on 15 January 2024. By then, Mr Gallop was acting in person. On 8 January 2023, Mr Gallop submitted an application to amend to include a complaint of unfair dismissal. He had also submitted a draft List of Issues which included the unfair dismissal claim and additional allegations of discrimination. In light of the lack of clarity in the application to amend, EJ Anderson ordered Mr Gallop to provide further information. He also listed the case for a seven day final hearing in March 2025.

[3]The matter came before Employment Judge R Lewis for further case management on 16 April 2024. He refused Mr Gallop’s application to amend to include a complaint of unfair dismissal. The application to amend in respect of additional allegations in the disability discrimination claim was not opposed and was granted. The List of Issues prepared by the parties was approved, subject to incorporating the amendments permitted by EJ Lewis. The case was listed for a ten day Hearing on 16 – 27 June 2025.

[4]Due to the lack of resources, this final hearing was unable to commence as scheduled on 16 June 2025 and the first five days were lost. This Tribunal convened on 23 June. During that first week we read into the case and heard Mr Gallop’s evidence, taking us through to Friday 27 June 2025. We then reconvened week commencing 24 November 2025, during which we heard the Respondent’s evidence and the parties’ closing submissions, commencing our deliberations in Chambers on Friday 28 November 2025. We continued our deliberations on 10 and 11 December, delivering this Judgment to the parties on 12 December 2025. Evidence

[5]We had before us a Bundle running to page 2218, properly paginated and indexed. We also had a Core Bundle consisting of 199 pages. We further had a Supplementary Bundle running to page number 77.

[6]We had before us witness statements as follows: 6.1. Mr Gallop; 6.2. Mrs S Johnson, HR Advisor; 6.3. Miss S Wright, Detective Sergeant and Mr Gallop’s Line Manager; 6.4. Mrs A Scott, Chief Superintendent at the time, now Assistant Chief Constable, Suffolk Constabulary, heard the Grievance Appeal; 6.5. Mr L Provart, Chief Superintendent and Dismissing Officer; and 6.6. Mr D Buckley, Chief Superintendent at the time, now Acting Assistant Chief Constable, Norfolk Constabulary, heard the Dismissal Appeal.

[7]Before the hearing commenced, we read the witness statements and read or looked at in our discretion, the documents referred to. I made it clear that we had not read everything and explained, (in particular to Mr Gallop) that it was important to take us to those passages in the documents the parties considered to be important, during cross examination of witnesses.

The Issues

[8]We were provided with an Agreed List of Issues at the outset of the hearing, which both parties confirmed we could rely upon. It is set out in something of a cumbersome format, but it was sufficient for the purposes of this hearing and served to identify the allegations relied upon by Mr Gallop. During the course of the hearing, Mr Gallop withdrew some of his claims and allegations. I set out below the Agreed List of Issues, with agreed amendments, (showing deletions following Mr Gallop’s withdrawals). Time Limits (s.123 Equality Act 2010)

The Issues

[1]The Claimant commenced the Early Conciliation process with ACAS on 19 April 2023 (Day A). The Early Conciliation Certificate was issued on 25 May 2023 (Day B). The claim form was presented on 1 July 2023. Accordingly, any act or omission which took place before 26 February 2023 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.

[2]Were the complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus Early Conciliation extension) of the act or omission to which the complaint relates?

b. If not, was there conduct extending over a period?

c. If so, was the claim made to the Tribunal within three months (plus Early Conciliation extension) of the end of that period?

d. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: i. Why were the complaints not made to the Tribunal in time? ii. In any event, is it just and equitable in all the circumstances to extend time? Disability (s.6 Equality Act 2010

[3]It is accepted that the Claimant suffers from depression and ME / CFS and that each condition would meet the criteria for disability under section 6 of the Equality Act 2010. The Respondent admits that the Claimant was disabled by one or both of the conditions at the time of the alleged discriminatory treatment, e.g. from October 2021. Direct Disability Discrimination (s.13 Equality Act 2010)

[4]Did the Respondent decline to provide the Claimant with equipment to work from home whilst absent due to ill health and if so, why?

[5]Would the Respondent have declined to provide a non-disabled employee with equipment to work from home whilst absent due to ill health in the same circumstances? Discrimination arising from disability (s.15 Equality Act 2010

[6]Did the Claimant’s disability cause, have the consequence of, or result in, his sickness absence levels?

[7]Did the Respondent treat the Claimant unfavourably because of his sickness absence levels, in:a. Requiring the Claimant to attend a Stage 1 formal meeting on 23 February 2022;

b. Issuing a 12 month formal written warning and Improvement Plan;

c. Requiring the Claimant to comply with standard absence management triggers;

d. Failing / declining to distinguish between absence related to disability and that related to general illness when assessing levels of absence and applying formal stage triggers;

e. Notifying the Claimant that he was being moved to Stage 2 of the Capability process on 14 April 2022;

f. Failing to respond to the Claimant’s email of concern about being moved to Stage 2 of the Capability process;

g. Formally notifying the Claimant that he was being moved to Stage 2 of the Capability process on 1 June 2022;

h. Proceeding to Stage 2 of the Capability process despite the Claimant’s return to work being scheduled for 8 June 2022;

i. Requiring the Claimant to have no more than two occurrences of sickness (each lasting no more than two days) from 21 July 2022 to 1 May 2023;

j. Requiring the Claimant to undertake a phased return of less than 3 months, in order to return to full time hours by 10 October 2022;

k. Formally notifying the Claimant that he was being moved to Stage 3 of the capability process, which would entail a Final Capability Hearing resulting in possible dismissal, on 20 October 2022;

l. Taking 173 days to address the Claimant’s Grievance and Appeal;

m. Failing to properly address the matters raised in the Claimants Grievance in the Grievance Outcome dated 26 January 2023;

n. Failing to properly address the matters raised in the Claimant’s Grievance Appeal in the Grievance Appeal Outcome dated 19 April 2023;

o. Failing to properly address the matters raised in the Claimant’s Grievance Appeal at the Grievance Appeal Outcome meeting on 2 May 2023;

p. Proceeding to Stage 3 of the Capability process;

q. Dismissing the Claimant; and

r. Rejecting the Claimant’s Appeal against dismissal?

[8]If so, was the treatment a proportionate means of achieving a legitimate aim in each case?

[9]Did the Claimant’s disability cause, have the consequence of, or result in, the need for an appropriate, gradual and individually tailored Return to Work Plan?

[10]Did the Respondent treat the Claimant unfavourably because of his need for an appropriate, gradual and individually tailored Return to Work Plan, in:a. Refusing or declining to follow the advice of the Specialist ME Clinic;

b. Refusing or declining to follow the advice of a Physiotherapist funded by the Respondent;

c. Refusing or declining to follow the advice of the Respondent’s Force Medical Advisor (FMA);

d. Refusing or declining to allow the Claimant the opportunity to follow a suitably sustainable Return to Work Plan; and

e. Concluding within the Grievance that the ME Clinic advice had changed during the process?

[11]If so, was the treatment a proportionate means of achieving a legitimate aim in each case?

[12]Did the Claimant’s disability cause, have the consequence of, or result in, absence from the office?

[13]Did the Respondent treat the Claimant unfavourably because of his absence from the office, in not allowing the Claimant to work from home when he requested it in December 2021?

[14]If so, was the treatment a proportionate means of achieving a legitimate aim?

[15]Did the Claimant’s disability cause, have the consequence of, or result in, the inability to always attend appointments?

[16]Did the Respondent treat the Claimant unfavourably because of his inability to always attend appointments, in:a. Citing a failure to attend an appointment with Workplace Health as one of the reasons for moving the Claimant to Stage 1 of the Formal Capability process in 2022;

b. Using a single incident to establish a narrative of the Claimant failing to take personal responsibility for his health; and

c. Citing a failure to attend an appointment with Workplace Health as a reason for the Claimant’s dismissal?

[17]If so, was the treatment a proportionate means of achieving a legitimate aim in each case?

[18]Did the Claimant’s disability cause, have the consequence of, or result in, increased stress in relation to the Respondent’s treatment of the Claimant?

[19]Did the Respondent treat the Claimant unfavourably because of his increased stress by citing his ongoing ill health as a reason for no longer being able to support him as an employee?

[20]If so, was the treatment a proportionate means of achieving a legitimate aim?

[21]Did the Claimant’s disability cause, have the consequence of, or result in, exacerbation of symptoms in relation to the Respondent’s treatment of the

[22]Did the Respondent treat the Claimant unfavourably because of his exacerbated symptoms by citing his ongoing ill health as a reason for no longer being able to support him as an employee?

[23]If so, was the treatment a proportionate means of achieving a legitimate aim?

[24]Did the Claimant’s disability cause, have the consequence of, or result in, an inability to attend a meeting on 11 August 2023?

[25]Did the Respondent treat the Claimant unfavourably because of his inability to attend the meeting, in not taking the Claimant’s availability into account when rescheduling the meeting?

[26]If so, was the treatment a proportionate means of achieving a legitimate aim? Indirect Disability Discrimination (s.19 Equality Act 2010

[27]Does the Respondent’s requirement for employees to maintain a specified level of attendance at work (as per the Respondent’s Sickness Absence Management Policy and Capability (Attendance and Performance) Policy) amount to a provision, criterion, or practice which put the Claimant and persons with his disability at a particular disadvantage, given that:a. The Claimant was put through a Formal Capability process as a result; and

b. The Claimant pushed himself to follow return to work plans set by the Respondent, which the Claimant felt were unsustainable?

[28]If so, was the requirement to maintain consistent attendance a proportionate means of achieving a legitimate aim?

[29]Does the Respondent’s requirement for employees to comply with a Return to Work Plan amount to a provision, criterion, or practice which put the Claimant and persons with his disability at a particular disadvantage, given that the Claimant was not able to adhere to the Plan as a result of his conditions?

[30]If so, was the requirement to comply with Return to Work Plans which the Claimant felt were unsustainable a proportionate means of achieving a legitimate aim?

[31]Does the Respondent’s use of standard absence triggers (as per the Respondent’s Sickness Absence Management Policy) amount to a provision, criterion, or practice which put the Claimant and persons with his disability at a particular disadvantage and if so, were the standard absence triggers applied to the Claimant?

[32]If so, was the requirement to comply with standard absence triggers a proportionate means of achieving a legitimate aim?

[33]Does the Respondent’s Policy that recuperative duties should not last longer than 12 weeks (as per the Respondent’s Sickness Absence Management Policy) amount to a provision, criterion, or practice which put the Claimant and persons with his disability at a particular disadvantage, given that the Claimant was not able to successfully complete a phased return to work, returning to full hours, within 12 weeks and was therefore put through a Formal Capability process?

[34]If so, is the Policy that recuperative duties should not last longer than 12 weeks a proportionate means of achieving a legitimate aim?

[35]Does the Respondent’s requirement for an employee to return to work for at least four hours a day during a phased return amount to a provision, criterion, or practice which put the Claimant and persons with his disability at a particular disadvantage, in view of the medical advice and given that the Claimant was not able to work for at least four hours a day?

[36]If so, is the requirement to work for at least four hours a day during a phased return a proportionate means of achieving a legitimate aim?

[37]Does the Respondent have a requirement for an employee to use annual leave, in order to return on fewer than five days a week during a phased return?

[38]If so, does this requirement amount to a provision, criterion, or practice which put the Claimant and persons with his disability at a particular disadvantage, given that the Claimant was not able to return for five days a week?

[39]If so, is the requirement to use annual leave, in order to return on fewer than five days a week during a phased return, a proportionate means of achieving a legitimate aim?

[40]Did the Respondent fail to apply its Capability (Attendance and Performance) Policy to the Claimant in declining to reschedule the Stage 3 meeting at a date convenient to the Claimant?

[41]If so, did this failure amount to a provision, criterion, or practice which put the Claimant and persons with his disability at a particular disadvantage, given that the Claimant was not able to attend the rescheduled meeting?

[42]If so, is the failure to reschedule the Stage 3 meeting at a date convenient to the Claimant a proportionate means of achieving a legitimate aim?

[43]Does the Respondent’s practice of considering historic absence data in making a decision to dismiss at Stage 3 of a capability process, amount to a provision, criterion, or practice which put the Claimant and persons with his disability at a particular disadvantage, given that the Claimant had been subject to the Formal Capability process in 2017 / 18?

[44]If so, is consideration of historic absence data, in making a decision to dismiss at Stage 3 of a Capability process, a proportionate means of achieving a legitimate aim? Failure to make reasonable adjustments (§.20-21 Equality Act 2010

[45]Did the Respondent’s requirement that an employee should not be on recuperative duties, or a phased return, for more than 12 weeks put the Claimant at a substantial disadvantage in comparison with those who are not disabled?

[46]If so, did the Respondent take such steps as it is reasonable to take to avoid the disadvantage by:a. Proposing reasonable Return to Work Programmes for the Claimant, with reference to medical advice;

b. Providing support for the Claimant through regular meetings;

c. Extending the 12 week period;

d. Suggesting a reduction in contracted hours for the Claimant; and

e. Considering whether a career break or medical redeployment might assist

[47]Did the Respondent’s requirement that the Claimant work in the office for his role, rather than from home, put the Claimant at a substantial disadvantage in comparison with those who are not disabled?

[48]If so, did the Respondent take such steps as it is reasonable to take to avoid the disadvantage, considering whether:a. The Respondent had sufficient equipment to facilitate all employees to work from home during the Covid-19 pandemic;

b. Support for the Claimant’s return to work and reintegration following a lengthy absence would be necessary; and

c. There was medical evidence to suggest that the Claimant would have been able to work from home?

[49]Did the Respondent’s application of the Capability Policy put the Claimant at a substantial disadvantage in comparison with those who are not disabled, in view of his dismissal?

[50]If so, did the Respondent take such steps as it is reasonable to take to avoid the disadvantage, considering whether the Respondent:a. Reset trigger points for the Claimant;

b. Extended trigger points for the Claimant;

c. Considered alternatives to dismissal;

d. Acted in a timely manner in regard to the Claimant’s requests for support; and

e. Acted in relation to time frames indicated within Policy documents?

[51]Did the Respondent’s application of the Capability (Attendance and Performance) Policy put the Claimant at a substantial disadvantage in comparison with those who are not disabled, in view of the initial delay in convening the Stage 3 Third Formal Capability (Attendance) Meeting?

[52]If so, did the Respondent take such steps as it is reasonable to take to avoid the disadvantage?

[53]In addition, did the Respondent take such steps as it is reasonable to take to avoid any disadvantage to the Claimant by:a. Resetting trigger points for the Claimant;

b. Extending trigger points for the Claimant;

c. Providing flexibility of shift start times for the Claimant;

d. Suggesting a reduction in contracted hours for the Claimant;

e. Proposing reasonable Return to Work Programmes for the Claimant, with reference to medical advice;

f. Providing support for the Claimant through regular meetings; and

g. Considering whether a career break or medical redeployment might assist

[54]Did the Respondent fail to fulfil its duties under the Public Sector Equality Act in relation to making reasonable adjustments?

[55]If so, did this failure result in the Claimant’s dismissal? Harassment (s.26 Equality Act 2010)

[56]Did the Respondent undermine the Claimant’s attempts to return to work successfully and sustainably by creating an environment of inevitable failure in which the Claimant’s efforts were measured against improper metrics?

[57]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[58]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity,

[59]Did the Respondent repeatedly ask for “further medical guidance”, ask the Claimant to suggest reasonable adjustments and consistently refuse to follow the existing medical advice?

[60]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[61]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity,

[62]Did the Respondent deny the Claimant to be accompanied to meetings by his wife?

[63]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[64]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity,

[65]Did the Respondent set unrealistic attendance targets for the Claimant, creating the inevitability of advancing the Claimant through the formal capability procedures with the ultimate aim of dismissal?

[66]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[67]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity,

[68]Did the Respondent repeatedly emphasise that the Claimant missing one appointment with Workplace Health demonstrated a lack in taking responsibility, without acknowledging why the appointment was missed or what was to be gained from the appointment?

[69]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[70]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity,

[71]Did the Respondent’s failure to respond to an email of 19 April 2022 from the Claimant, which informed the Respondent that their actions were resulting in the Claimant feeling bullied, have the purpose of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for

[72]If not, did the conduct reasonably have the effect of violating the Claimant's dignity,

[73]Did the Respondent assert it has done nothing wrong to contribute to the ill health of

[74]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[75]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity,

[76]Did the Respondent misread and misrepresent the advice of the ME / CFS Service?

[77]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[78]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity,

[79]Did the Respondent assert that the Claimant would “not accept any decision that does not align exactly with the medical advice”?

[80]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[81]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity,

[82]Did the Respondent allege that the Claimant would not accept any plan that was not on full pay?

[83]If so, did the conduct have the purpose of violating the Claimant’s dignity, or creating

[84]If not, did the conduct reasonably have the effect of violating the Claimant’s dignity, Remedy (§.124 & 139 Equality Act 2010, s.207A Trade Union and Labour Relations (Consolidation) Act 1992)

[85]Did the Claimant suffer financial loss attributable to an act(s) of discrimination by the Respondent?

[86]Has the Claimant taken reasonable steps to mitigate any such financial loss?

[87]Did the Claimant suffer injury to feelings attributable to an act(s) of discrimination by the Respondent?

[88]Should the Respondent be Ordered to pay compensation to the Claimant?

[89]If so:a. Is the Claimant entitled to be awarded an uplift on such compensation for an unreasonable failure by the Respondent to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures? And

b. Should interest be awarded?

[90]Is the Claimant entitled to a declaration that he was subject to disability discrimination by the Respondent?

[91]Should a recommendation be made that the Respondent take specified steps for the benefit of the Claimant The Law Disability Discrimination 9. Disability is a protected characteristic pursuant to s.4 of the Equality Act 2010. 10. Section 39(2)(c) and (d) proscribes discrimination by an employer by either dismissing an employee or subjecting him to any other detriment. 11. Detriment was defined in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

the Tribunal has to find that by reason of the act or acts complained of, a reasonable worker would or might take the view that he or she had been disadvantaged in the circumstances in which he or she had thereafter to work. 12. Section 39(5) imposes a duty on an employer to make reasonable adjustments. 13. Section 40 prohibits harassment by an employer. The Burden of Proof 14. In respect of the burden of proof, s.136 reads as follows: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person(a) (A) contravened the provision concerned, the court must hold that the contravention occurred; (3) But subsection (2) does not apply if A shows that A did not contravene the provision.” 15. The Court of Appeal gave guidance on how to apply the equivalent provision of s.136 under the previous discrimination legislation, in the case of Igen Ltd v Wong and Others

[2005] IRLR 258

. There, the Court of Appeal set out a series of guidance steps, that guidance may still be relied upon, see Underhill LJ at paragraph 14 in Greater Manchester Police v Bailey

[2017] EWCA Civ 425

. We have carefully observed those steps in this case. 16. This does not mean that we should only consider the Claimant’s evidence at the first stage; a Tribunal should consider all the evidence at the first stage in order to make findings of primary fact and assess whether there is a prima facie case. There is a difference between factual evidence and explanation, (which is considered at the second stage). See Madarassy v Nomura International plc

[2007] IRLR 246

CA. 17. In Hewage v Grampian Health Board

[2012] UKSC 37

Lord Hope of Craighead said: “It is important not to make too much of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” 18. Having said that, HHJ Tayler cautioned in Field v Steve Pye and Co limited & Others

[2022] EAT 68

: “Although it is legitimate to move straight to the second stage, there is something to be said for an employment tribunal considering why it is choosing that option “ Reasonable Adjustments 19. Section 20 defines the duty to make reasonable adjustments, which comprises three possible requirements, the first of which might apply in this case set out at subsection (3) as follows:- “(3) The first requirement is a requirement, where a provision criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage” 20. Section 21 provides that a failure to comply with such requirements is a failure to make a reasonable adjustment, which amounts to discrimination. 21. There are five steps to establishing a failure to make reasonable adjustments (as identified in the pre-Equality Act 2010 cases of Environment Agency v Rowan

[2008] IRLR 20

and HM Prison Service v Johnson

[2007] IRLR 951

). The Tribunal must identify: 21.1. The relevant provision criterion or practice applied by or on behalf of the employer; 21.2. The identity of non-disabled comparators, (where appropriate); 21.3. The nature and extent of the substantial disadvantage suffered by the disabled employee; 21.4. The steps the employer is said to have failed to take, and 21.5. Whether it was reasonable to take that step. 22. The Equality and Human Rights Commission: Code of Practice on Employment (2011) at paragraph 4.5 suggests that PCP should be construed widely so as to include for example, formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. It may also be a decision to do something in the future or a one off decision. 23. The decision of Mrs Justice Simler DBE, (then President) in Lamb v the Business Academy Bexley UKEAT/0226/JOJ assists with identifying what is and what is not, a PCP. The phrase is to be construed broadly, having regard to the statute’s purpose of eliminating discrimination against those who suffer from disability. It may in certain circumstances include one-off decisions, (paragraph 26). She approved though, the comments of the former President, Langstaff J in Nottingham City Transport Ltd v Harvey

UKEAT/0032/12

where he referred to, “practice” as having an element of repetition. In the former case, a teacher was dismissed after a long period of absence during which a grievance was investigated and an outcome provided. The PCP was the requirement to return to work without a proper and fair investigation. There were repeated failures to properly investigate and repeated delays; that was a practice. In the latter case, a claimant suffering from depression, returning to work and confused by a new swipe card system, altered his time sheet. The EAT held that the one-off application of a flawed disciplinary procedure did not amount to a, “practice”. More recently in Ishola v Transport for London

2020 EWCA Civ 112

, CA, Lady Justice Simler, (as she now is) affirmed that approach, the Court of Appeal holding that the words provision criterion or practice carry the connotation of a state of affairs indicating how similar cases will be treated in the future; a one off act can amount to a practice if there is some indication that it would be repeated if similar circumstances were to arise in the future. She said at paragraph 35 that the words: “…are not terms of art but ordinary English words … they are broad and overlapping… not to be narrowly construed or unjustifiably limited in their application”. She also said at paragraph 37, that not every unfair act amounts to a PCP. If such an act is found not to be direct discrimination, it would be wrong by a process of abstraction, to seek to convert it into the application of a PCP. 24. It is important for the claimant to identify the PCP relied upon and for the Tribunal to makes its decision on the PCP advanced by the claimant, see Secretary of State for Justice v Prospere

UKEAT/0412/14

. 25. In cases of absence management, the PCP ought not simply be described as, “the absence management policy”, particularly if the policy itself provided for allowances in the case of disability, but even if it did not, what the claimant should do is identify why the policy in certain circumstances adversely affected the disabled employees such as the claimant. See Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

CA. In that case, as will be so in many cases, the PCP is the requirement to maintain a certain level of attendance in order to avoid the risk of disciplinary sanction. A disabled person is thereby disadvantaged because he or she would be more likely to be absent through ill health and would therefore find it harder to comply with the PCP. 26. Claimants are not required to prove that they were disadvantaged, it is not a test of causation, it is a comparative exercise to test whether the PCP has the effect of disadvantaging the disabled Claimant more than trivially in comparison with others who are not disabled, see Sheikholeslami v University of Edinburgh

2018 IRLR 1090

. 27. The obligation to make reasonable adjustments is on the employer. That means that it must consider for itself what adjustments can be made, thus for example in Cosgrove v Caesar and Howie

[2001] IRLR 653

the duty was not discharged simply because the Claimant and her GP had not come up with what adjustments could be made. An employer that does not make enquiries as to what might be done to ameliorate the disabled persons disadvantage, runs the risk that it fails to make a reasonable adjustment. That is not the same as saying that there is an obligation to consult, just that the failure to do so, or to inform oneself of the relevant facts and reflect on them, runs the risk of placing oneself in the position where a breach of the obligation to make reasonable adjustment occurs, out of ignorance, (see Tarbuck v Sainsbury’s Supermarkets Ltd

[2006] IRLR 664

). 28. The duty is to make “reasonable” adjustments, to take such steps as it is reasonable for the employer to take to avoid the disadvantage. The test is objective. Our focus should be not on the process followed by the employer to reach its decision but on practical outcomes and whether there is an adjustment that should be considered reasonable. It is for the tribunal to determine, objectively, what is reasonable. It is not a matter of what the employer reasonably believed. Unusually, the tribunal may substitute its view for that of the employer and it is permissible for the tribunal to conclude that different adjustments would have been reasonable from those contended for by the Claimant: see Smith v Churchills Stairlifts Plc

[2006] ICR 524

CA; Royal Bank of Scotland v Ashton

[2011] ICR 632

EAT; Garrett v LIDL Ltd UKEAT 0541/08; Southampton City College v Randal IRLR 2006 18; Project Management Institute v Latiff

[2007] IRLR 579

. 29. The EHRC Code at paragraph 6.28 sets out examples of matters we might take into account in evaluating whether proposed steps are reasonable as 29.1. The effectiveness in preventing the substantial disadvantage; 29.2. Its practicability; 29.3. The financial and other costs and the extent of any disruptions that may be caused; 29.4. The employer’s financial or other resources; 29.5. The availability of financial or other assistance, (eg through Access to Work), and 29.6. The type and size of the employer. 30. The effectiveness of a proposed adjustment is one of the factors to be evaluated by the tribunal; it is sufficient for the Claimant to raise the issue for there to be a chance that the step would avoid the disadvantage: South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley (

UKEAT/0341/15/DM

) at [17]-[18]. 31. The effectiveness of a proposed adjustment should be assessed on the basis of the evidence available at the time. Medical evidence obtained afterwards is only relevant in so far as it helps with assessing the likelihood of the adjustment being effective, Brightman v TIAA Limited UKEAT 0318/2019. 32. In Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

Elias LJ said: “So far as efficacy is concerned, it may be that it is not clear whether the step proposal will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.” 33. The more practical an adjustment is to implement, the more likely it is to be reasonable. A step that is recommended or contemplated in an employer’s own policies is likely to be practical. An adjustment which is recommended in an employer’s own policy is one that is likely, at least as a starting point, to be a reasonable adjustment to make: see Linsley v Commissioners for Her Majesty’s Revenue and Customs (

UKEAT/0150/18/JOJ

) (7 December 2018) at [24]. One should expect a good reason for departing from such a policy; ignorance by the relevant managers is not a good reason: see Linsley at [24]-[25]. 34. In Cordell v Foreign and Commonwealth Office

2012 ICR 280

EAT the EAT gave useful guidance on the significance of the cost of a proposed adjustment. That might include the size of any budget allocated to reasonable adjustments, how much has been spent in similar situations, what other employers are prepared to spend in similar situations, and any policies set out in collective agreements. The tribunal makes a judgment on what it considers right, as an industrial jury. The significance of cost might also depend on what the Respondent might otherwise have to spend, for example in retraining or recruiting others. 35. The resources, financial and otherwise, available to the employer are relevant as is its size. 36. The effect of an adjustment on others is relevant. But one should not forget that employers are under a statutory obligation to take positive action. 37. On the question of comparators, the Code states at 6.16 that the purpose of comparison with people who are not disabled is to establish whether it is a PCP, physical feature or lack of auxiliary aid that places the disabled person at a disadvantage and therefore there is no need to identify a comparator whose circumstances are the same as the Claimants, (in contrast to such a requirement in claims of direct and indirect discrimination). Simler P observed in Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

at [48]-[49] that it is a question of whether the PCP bites harder on the Claimant, she said: “Whether there is a substantial disadvantage as a result of the application of a PCP in a particular case is a question of fact assessed on an objective basis and measured by comparison with what the position would be if the disabled person in question did not have a disability.” 38. The burden of proof was explained by Elias J in Project Management Institute v Latif UKEAT/0028/07CEA at [54]: the Claimant must establish that a duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Once that is established, the burden is reversed to the Respondent to show that the proposed adjustment is not reasonable. Disability Related Discrimination 39. Disability Related discrimination is defined at s.15 as follows: (1) A person (A) discriminates against a disabled person

(b) (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. 40. Determining whether treatment is unfavourable does not require any element of comparison, as is required in deciding whether treatment is less favourable for the purposes of direct discrimination. There is a relatively low threshold of disadvantage for treatment to be regarded as unfavourable. It entails perhaps placing a hurdle in front of someone, creating a particular difficulty or disadvantage for a person, see Williams v Trustees of Swansea University Pension and Assurance Scheme

[2019] UKSC. 41

. As for the difference between making a reasonable adjustment and disability related discrimination, in General Dynamics v Carranza UKEAT 0107/14/1010 HHJ Richardson explained that reasonable adjustments are about preventing disadvantage, disability related discrimination is about making allowances for that persons disability. 42. There are 2 separate causative steps: firstly, the disability has the consequence of causing something and secondly, the treatment complained of as unfavourable must be because of that particular something, (Basildon & Thurrock NHS Foundation Trust v Weerasinghe

UKEAT/0397/14/RN

) 43. Simler P, (as she then was) reviewed the authorities and gave helpful guidance on the correct approach to s15 in Pnaiser v NHS England

[2016] IRLR 170

which may be summarised as follows: 43.1. The tribunal should first identify whether the claimant was treated unfavourably and if so, by whom. 43.2. Secondly, the tribunal should determine what caused the treatment, focussing on the reason, (not motive) in the mind of the alleged discriminator, possibly requiring consideration of the conscious or unconscious thought processes of that person, but keeping in mind that the actual motive is irrelevant. There may be more than one cause of the treatment, the “something” need not be the main or sole reason, but it must have a significant, (more than trivial) influence and amount to an effective cause of the unfavourable treatment. 43.3. Thirdly, the tribunal must then determine whether the reason for the unfavourable treatment arose because of the claimant’s disability. There could be a range of, more than one, causal links. However, the more links there are, the harder it may be to establish the required connection. The question of causation is an objective test and does not entail consideration of the thought processes of the alleged discriminator. There is no requirement that the respondent know of the causal link between the disability and the, “something arising”. 44. If there has been such treatment, we should then go on to ask, as set out at s.15(1)(b), whether the unfavourable treatment can be justified. This requires us to determine: 44.1. Whether there was a legitimate aim, unrelated to discrimination; 44.2. Whether the treatment was capable of achieving that aim, and 44.3. Whether the treatment was a proportionate means of achieving that aim, having regard to the relevant facts and taking into account the possibility of other means of achieving that aim. 45. The test of whether there is a proportionate means of achieving a legitimate aim, (often referred to as the justification test) mirrors similar provisions in other strands of discrimination, such as in respect of indirect discrimination under s19 of the Equality Act. There is however, a difference, in that in the context of disability related discrimination, one is looking at the effect on the individual, whereas with indirect discrimination, one is looking at the effect on a group of people. 46. There is guidance in the Equality and Human Rights Commission’s Code of Practice on Employment, which reflects case law on objective justification in other strands of discrimination and which can be relied on in the context of disability related discrimination. 47. Thus, in Hensam v Ministry of Defence UKEAT/10067/14/DM the EAT applied the justification test as described in Hardys & Hansons Plc v Lax

[2005] EWCA Civ 846

. In Gray v University of Portsmouth

UKEAT/0242/20

Mrs Justice Eady said that employment tribunals should carry out a critical evaluation, adopting the same approach as in indirect discrimination cases, following Hardys & Hansons. The test is objective. In assessing proportionality, the tribunal uses its own judgment, which must be based on a fair and detailed analysis of the working practices and business considerations involved, particularly the business needs of the employer. It is not a question of whether the view taken by the employer was one a reasonable employer would have taken. The obligation is on the employer to show that the treatment complained of is a proportionate means of achieving a legitimate aim. The employer must establish that it was pursuing a legitimate aim and that the measures it was taking were appropriate and legitimate. To demonstrate proportionality, the employer is not required to show that there was no alternative course of action, but that the measures taken were reasonably necessary. 48. The tribunal has to objectively balance the discriminatory effect of the treatment and the reasonable needs of the employer. 49. “Legitimate aim” and “proportionate means” are 2 separate issues and should not be conflated. 50. The tribunal must weigh out a quantitative and qualitative assessment of the discriminatory effect of the treatment, (University of Manchester v Jones

[1993] ICR 474

). 51. The tribunal should scrutinise the justification put forward by the Respondent, (per Sedley LJ in Allonby v Accrrington & Rosedale College

[2001] ICR 189

). 52. In the context of section 15, s136 and the provisions as to the burden of proof means that the claimant will have to show: 52.1. That he was disabled at the relevant time; 52.2. That he had been subjected to unfavourable treatment; 52.3. A link between the unfavourable treatment and the, “something”, and 52.4. Evidence from which the tribunal could properly conclude that the, “something” was an effective cause of the unfavourable treatment. 53. It the claimant proves facts from which the tribunal could conclude that there was section 15 discrimination in this way, the burden of proof shifts to the respondent to prove a non-discriminatory explanation, or justification. Indirect Discrimination 54. Indirect discrimination is defined at s.19 as follows: “(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.” 55. The effect of s.136 is that it is for the claimant to show prima facie the existence of a provision, criterion or practice, (PCP) and that such PCP placed the claimant’s group sharing his protected characteristic at a disadvantage as compared to another group that does not share his protected characteristic and that the PCP was applied to the claimant which resulted in his being subjected to that disadvantage. These are primary facts which the tribunal has to find before the burden of proof shifts to the respondent, see Project Management Institute v Latif

[2007] IRLR 579

and Bethnal Green and Shoreditch Education Trust v Jeanne Dippenaar

UKEAT/0064/15/JOJ

. 56. Section 6 (3) provides that in relation to disability, reference to a person with a particular protected characteristic, or a shared protected characteristic, is reference to a particular, or the same, disability. 57. The obligation is on the employer to show that the PCP complained of is a proportionate means of achieving a legitimate aim, (“objective justification”). The employer must establish that it was pursuing a legitimate aim and that the measures it was taking were appropriate and legitimate. The relevant law is discussed above in the context of disability related discrimination. In the context of indirect discrimination we are looking at the effect on a group of people, not on an individual. Harassment 58. Harassment is defined at s.26: “(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— … disability; ….” 59. We will refer to that henceforth as the proscribed environment. There are three factors to take into account: 59.1. The perception of the Claimant; 59.2. The other circumstances of the case, and 59.3. Whether it is reasonable for the conduct to have that effect. 60. The conduct complained of that is said to give rise to the proscribed environment must be related to the protected characteristic. That means the Tribunal must look at the context in which the conduct occurred. It also means that general bullying and harassment, in the colloquial sense, is not protected by the Equality Act; protection from such behaviour only arises if it is related in some way to the protected characteristic. See Warby v Wunda Group Plc

UKEAT/0434/11/CEA

61. HHJ Richardson observed in Hartley v Foreign and Commonwealth Office Services

UKEAT/0033/15/LA

at paragraph 23: “The question posed by section 26(1) is whether A's conduct related to the protected characteristic. This is a broad test, requiring an evaluation by the Employment Tribunal of the evidence in the round — recognising, of course, that witnesses will not readily volunteer that a remark was related to a protected characteristic. In some cases the burden of proof provisions may be important, though they have not played any part in submissions on this appeal. The Equality Code says (paragraph 7.9): ‘7.9. Unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic.’ …” 62. The motivation and thought processes of those accused of harassment may be relevant to the question of whether their conduct amounted to harassment, see Unite the Union v Nailard

[2018] IRLR 730

at paragraphs 108 -109. 63. The EAT gave some helpful guidance in the case of Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

. It is a case relating to race discrimination, but the comments, (by Underhill P, as he then was) apply to cases of harassment in respect of any of the proscribed grounds. “We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. Whilst it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred). It is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” 64. Those sentiments were reinforced by Sir Patrick Elias in Grant v Her Majesty’s Land Registry

[2011] EWCA Civ 769

. Of the words, “intimidating, hostile, degrading, humiliating or offensive” he said that Employment Tribunals, “should not cheapen” the significance of those words, they are an important control to prevent trivial acts causing minor upsets being caught up in the concept of harassment. 65. In Pemberton v Inwood

[2018] EWCA Civ 564

Underhill LJ said at paragraph 88: “ In order to decide whether any conduct falling within sub-paragraph (1) (a) has either of the proscribed effects under sub-paragraph (1) (b), a tribunal must consider both (by reason of sub-section (4) (a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4) (c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4) (b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.” 66. In terms of the burden of proof and section 136, the Claimant will need to show that on the balance of probabilities, he had been subjected to unwanted conduct which created the proscribed environment for him. Alternatively, that there was some evidence from which the tribunal could properly conclude that the unwanted conduct had the purpose of creating the proscribed environment, in which case the burden shifts to the employer to show that it did not. Unless it is obvious that the conduct is related to the protected characteristic, the Claimant will need to produce some evidence that the conduct is so related from which, absent explanation, the tribunal could properly conclude that it was, thus shifting the burden of proof to the employer to show that it was not. Time 67. Section 123 of the Equality Act requires that claims of discrimination must normally be made within 3 months of the act complained of, or such further period as the Tribunal considers just and equitable. Where an act continues over a period of time, time runs from the end of that period, from the last act. 68. In the case of Hendricks v Metropolitan Police Commissioners

[2003] IRLR 96

the Court of Appeal on the question of what amounted to a continuing act, cautioned Tribunals against looking too literally for a policy, rule, practice, scheme or regime, but rather to look for incidents which are linked to each other and which are evidence of a “continuing discriminatory state of affairs”. As Mummery LJ put it at paragraph 52 of that Judgment: “The question is whether that is an act extending over a period as distinct from a succession of unconnected or isolated or specific acts, for which time would begin to run from the date when each specific act was committed”. 69. A failure to make a reasonable adjustment is not an act, or a continuing act, but a failure to act, an omission. In the case of Kingston Upon Hull City Council v Matuszowicz

[2009] ICR 1170

it was explained that in the context of reasonable adjustments, time runs from either when the omission was decided upon, or if there is no evidence of a deliberate decision, when the decision to make the adjustment might reasonably have been expected to have been made. This can lead to a situation where time expires long before a Claimant may have realised, in which case a Tribunal is likely to be willing to find that it is just and equitable to extend time. Findings of Fact 70. There are few, if any, conflicts of evidence. The Tribunal’s primary task at the fact finding stage of this case, has been to identify the relevant facts set out in the witness statements and documents necessary to determine the issues, rather than resolving conflicts of evidence. 71. Unless stated otherwise, reference to page numbers is reference to the page of the document in the main bundle 72. The Norfolk and Suffolk Constabularies collaborate in the sharing of resources, including Human Resources, which is why in some of the policies quoted below, one will find references to, “Constabularies” plural. 73. The Sickness Absence Management Policy is at page 1753 published March 2020 and reviewed in March 2023. 74. The following are quotations from relevant passages within this policy: “12. Absence Trigger Points – Informal Attendance Support

12.1 Line managers should seek to take early action where any sickness absence concerns exist. For a fair and consistent approach the Constabularies have set “triggers” at which managers should consider the level of absence and take appropriate supportive action. It is important managers take account of individual circumstances.

12.2 The triggers are:  3 periods of sickness absence within a rolling 6 calendar month period.  4 periods of sickness absence within a rolling 12 calendar month period.  Cumulative absence totalling 28 days … absent within a rolling 12 calendar month period. …  A single period of absence that lasts, or is expected to last, 28 calendar days or longer.  Any other absences that gives cause for concern – subject a significant pattern of absence occurring. … 14.4 For disability related absence, whilst this will not be discounted for monitoring purposes, consideration may be given to making adjustment to absence triggers and in relation to any formal management action. It may be necessary to also consider further reasonable adjustments. Exactly what adjustments are appropriate will depend on the nature of the disability or condition and its impact on the individual’s attendance at work. These should be agreed by the individual and line manager and documented in a Tailored Adjustment Agreement. Appendix B – Recuperative Duties and Phased Return … What are they and when are they used? Recuperative duties are when a staff member is unable to undertake the full duties of their role for a short period of time whilst recovering from ill health or injury but is able to perform some work. A phased return is when a staff member returns and works shorter hours or a different pattern (e.g. days only) gradually increasing back to their normal full hours. Placing a staff member on recuperative duties or a phased return will only be considered if their Fit Note suggests that they would benefit from this and / or it is recommended by Workplace Health Department. … Consideration of recuperative duties or a phased return should be treated on a case by case basis. The Constabulary does have a legal responsibility to consider all possible reasonable adjustments for those whose requirement is disability related, but in all circumstances we still want to be as supportive as we can so all requests and recommendations should be accommodated where possible. If it is not possible to accommodate the staff member on recuperative duties recommended by their GP the individual may have to remain off sick until they are fit to return to their full role. How long is it for? An individual should not be on recuperative duties or phased return for more than 12 weeks, unless there are exceptional circumstances, in which case the HR operations manager has the discretion to extend the period. All cases should be reviewed on a regular basis, which will include holding ASMs and referral back to Workplace Health as appropriate. Following the 12 week period if an individual is not capable of returning to full duties at this point they will be referred to Workplace Health to help inform options and next steps. … How will pay be affected? When a staff member is on recuperative duties or a phased return they will receive full pay based on their normal hours, including any allowances they normally receive for up to 12 weeks (unless extended further).” 75. The Capability Policy is at page 1770. This was published in March 2021 and reviewed in March 2023. Relevant quotations from this Policy are as “2. Purpose of this Policy

2.1 This policy provides the formal procedure for dealing with cases of performance or attendance concerns where supportive measures and informal management action have failed to result in the individual achieving or maintaining satisfactory standards. It aims to ensure that assistance to improve is provided in a structured, consistent, and supportive manner. … 8. Formal Capability Procedure

8.1 The formal capability procedure comprises 3 stages as set out below:

8.2 Stage 1 – where informal management action has not brought about the required improvement in the individual’s performance and / or attendance, the next step is a First Formal Capability Meeting. This marks the start of Stage 1 of the formal procedure, and will occur when management, with the advice of HR, agree that formal action is the appropriate next step.

8.3 Stage 2 – where the individual’s performance and / or attendance has not improved to an acceptable standard within the agreed timescales of the improvement plan, or relapses within the duration of the written warning, where issued as the Stage 1 outcome, the matter may be progressed to Stage 2. The individual will then be requested to attend a Second Formal Capability Meeting. Stage 2 will not be progressed unless Stage 1 has taken place.

8.4 Stage 3 – where the individual’s performance and / or attendance has not improved to an acceptable standard within the agreed time scales of the final improvement plan or the individual has relapsed within the duration of the final written warning where issued as a Stage 2 outcome, they may be progressed to Stage 3. The individual will then be requested to attend a Final Capability Hearing.

8.5 Progression to subsequent stages of the formal procedure must be for matters similar to, or connected with, the unsatisfactory performance / attendance referred to in improvement plans issued at the earliest stages. … 9. Right to be Accompanied 9.1 Individuals have the right to be accompanied to any capability meeting or hearing, including appeals. Individuals can also request to be accompanied at any informal stage of performance or attendance management and no request will be unreasonably refused. The companion can be either a workplace colleague or UNISON representative (or a representative of any other alternative Union at formal stage). 12.4 At the Hearing: – The reasons why the individual’s performance / attendance is unsatisfactory will be explained. – The individual, and / or their companion, will have the opportunity to respond giving any further information or explanation, and ask questions. … 17. Meeting Postponements and Adjournments

17.1 Capability meetings and hearings will be held without any unreasonable delay in order to ensure that evidence is current and recollection fresh.

17.2 If the individual or their companion is unable to attend on the dates / time specified a short delay will be acceptable to reschedule to an alternative date convenient to them. If they are subsequently unable to attend on the rescheduled date, and all allowances have been made, the meeting or hearing may proceed in their absence in order to avoid further delay, and consequently a decision will be made in their absence. In these circumstances if the individual cannot attend they will be given the opportunity to submit their written evidence. … 20. Reasonable Adjustments

20.1 In all cases of unsatisfactory performance or attendance involving ill health, especially those involved with disability, consideration must be given to making any reasonable adjustments.

20.2 Guidance on reasonable adjustments can be provided by the member of HR advising on the case.” 76. The Disability Management Policy is at page 305, it is dated July 2019 and reviewed in July 2022. The relevant quotations are as follows: “1.4 We recognise that some workplace practices or physical aspects of a working environment can be challenging for people with disabilities. We are committed to identifying any such challenges that could place a person with disabilities at a disadvantage, then taking all reasonable steps to remove steps to overcome them. The focus must remain on what each individual can do, rather than what they cannot. …

2.2 The constabularies are committed to moving beyond compliance and adopting best practice. Managers are therefore encouraged to avoid spending time assessing whether someone has a disability and instead, be proactive in obtaining advice around assessing what barriers they may be facing and being flexible in making adjustments to remove or reduce those barriers. …

6.1 The Equality Act 2010 requires employers to make reasonable adjustments when an individual is placed at a substantial disadvantage as a result of a disability. This means, wherever possible, removing barriers that might get in the way of a person with a disability effectively doing his or her job, or providing the employee with a role that he or she is otherwise capable of doing.

6.2 Decisions about adjustments must take into account:  How effective the change will be in avoiding the disadvantage the disabled person would otherwise experience.  Practicality.  Cost.  The organisation’s resources and size.  The availability of financial support (considering Access to Work). 7. Disability Related Sickness Absence … 7.3 An adjustment to the attendance standard may be an appropriate reasonable adjustment depending on the particular circumstances of an individual case. Advice should be sought from Human Resources and / or Workplace Health. 8. Disability Arising During Employment 8.1 We are committed to ensuring that individuals who develop a disability during their employment remain employed, where possible in their existing role.” 77. Mr Gallop’s employment with the Respondent began on 20 April 2015 as a Victim and Witness Support Officer. Latterly, he had been employed as an Investigator on the Domestic Abuse Safeguarding Team, (DAST). 78. The Respondent is the Chief Constable for the Police Force of Norfolk. 79. Mr Gallop had a poor attendance record. It is accurately summarised in a table produced by Mr Hobbs in his closing submissions at paragraph 40 as Year Calendar days Proportion of the calendar sickness absence year off sick (Jan to Dec) 2015 (8.5 months) 39 15% 2016 61 17% 2017 97 27% 2018 104 28% 2019 133 36% 2020 218 60% 2021 172 47% 2022 265 72% 2023 (9 months) 273 100% 80. The relevant period for this case is from October 2021 to the end of Mr Gallop’s employment on 27 September 2023. However, it is important to acknowledge by way of background that in respect of Mr Gallop’s absence prior to October 2021, some of those absences are recorded as having been for, “psychological disorders – nerves – depression – anxiety” and some are for other reasons. 81. In June 2017, Mr Gallop attended a Stage 1 First Formal Capability Attendance meeting and was issued with a formal warning for poor attendance. 82. In March 2018, Mr Gallop attended a Stage 2 Second Formal Capability Attendance meeting where he was issued with a further formal warning of 18 months duration. 83. In February 2020, the Force Medical Advisor, (FMA) recommended redeployment. The background, (the report is at page 790) is a combination of issues in the workplace which Mr Gallop described as a hostile working environment and his depression, which he was finding debilitating. 84. Medical redeployment was granted and due to take place in April 2020, but the disruption caused by the Covid epidemic meant that it was unable to go ahead at that time. He was to join the DAST team. 85. Mr Gallop was in fact absent with depression and anxiety between 6 February and 28 July 2020. He returned to work on 3 August 2020. He commenced full time employment in his new role, (on a higher pay band) on 4 November 2020. 86. The DAST team consisted of six people. Incidents of domestic violence were referred to the team, who would investigate, not the crime but the background. They would look to see what support could be provided to the victim, they would look into the history of the incident and of the alleged perpetrator. They would consider whether it would be appropriate to disclose the history of the perpetrator to the alleged victim. At times, they would be required to provide the perpetrator’s history to the Officers attending the incident. They would consider safeguarding issues in relation to the victim, liaising with and signposting to other agencies. They would encourage decision making by the victim. They would produce a risk assessment. Sometimes they would provide a mobile phone to the victim. It was a fast moving environment, which involved reacting to telephone calls and emails, calling for a timed response. Mr Gallop in cross examination, agreed that typically they would have five to ten high risk cases each in their workload and that they would work with a victim for three to six weeks. Mr Gallop agreed that sometimes there would be dozens or even hundreds of cases waiting for review. He also said that he represented 5% of the team’s resource and that there was routine, less demanding, less urgent work to be done. He agreed that in his absence at any time, the referrals all had to be covered by his colleagues and they have to work harder. 87. Mr Gallop was absent from work due to depression for 109 days between July and October 2021. 88. On 20 September 2021, Mr Gallop told his manager Miss Wright, (a Police Sergeant) that his doctor was looking at the possibility that he may have ME / CFS. Miss Wright was sympathetic, as she also had ME. 89. Mr Gallop attended an Attendance Support Meeting with Miss Wright on 14 October 2021. It is recorded that he mentioned that he may be suffering from Chronic Fatigue Syndrome (CFS) and that a Workplace Health appointment had been made for 20 October 2021. Miss Wright therefore decided to await the outcome of that before meeting with Mr Gallop again in October. 90. On 20 October 2021, Mr Gallop met with the Force Medical Advisor, who produced a report which is at page 795. The FMA confirmed that Mr Gallop has chronic depression and was starting an assessment by Chronic Fatigue specialists. He recommended that when Mr Gallop is ready, he commence a phased return to work, following any advice for that given by the Chronic Fatigue specialists. He warns that the employer should be prepared for a likely very gradual evolution and recovery over a prolonged period with a slow phased return to work. There was a delay in the report reaching the Respondent. Mr Gallop did not initially give his consent to the report being released; there was a misunderstanding. He rectified the situation on 3 January 2022, (page 510A). The Respondent says they did not see the Report until 5 August 2022. They refer to chasing it a number of times and say that the delay was down to Mr Gallop not providing consent. As we have seen from page 510A, that is not correct. Nor are we convinced that the Respondent did not see it until August 2022. They chased for the report on 20 January 2022, (page 535). In support of their contention, the Respondent referred us to another chasing email of 23 March 2022, (at page 557B) but that is chasing a report following a consultation on 21 February 2022, not October 2021. If they had not by then had the October 2021 report, one would have thought they would have been chasing that too. Similarly, the Respondent refers to an email of 31 May 2022 as evidence of its chasing the October 2021 report, but we see from that email, (at page 582) Miss Wright states that she is chasing the “latest report”. It is not October’s report. We think that probably, the Respondent had the October 2021 report before August 2022, (we cannot say for certain when, but it seems likely to have been before the chasing email of 23 March 2022 referred to above). Certainly, Mr Gallop is not to blame for any delay in their receiving the report, beyond 3 January 2022. 91. On 1 November 2021, Mr Gallop attempted a phased return to work. Miss Wright had agreed with him that he would come in and work a minimum of two hours per day. He managed two days, but on 3 November he telephoned to say that he would be arriving at work a bit later because the previous two days had taken their toll. Miss Wright seeks some guidance from Mrs Johnson of HR, enquiring whether two hours was the minimum, (page 508). Mrs Johnson replied, (page 507), “I would suggest that if David is unable to do a minimum of two hours a day and build that up an hour each week, then he is unfit for work.”

Findings of Fact

[92]On 3 November 2021, Mr Gallop began another period of absence which lasted 59 days, until 31 December 2021.

[93]Miss Wright decided not to proceed to Stage 1 and held a further Absence Support Meeting with Mr Gallop on 22 December 2021, (page 520). Mr Gallop requested that he be allowed to work from home on Tuesdays, Wednesdays and Thursdays. Miss Wright told him that was not possible due to lack of laptops and as he had been off work since July, she would prefer that he came into the office, because she believed that would be, “more beneficial mentally”. She noted that they were waiting for the report following a Workplace Health appointment on 20 October and proposed a further meeting on 11 January 2022, as Mr Gallop was planning to return to work on 4 January 2022.

[94]On 23 December 2021, Mrs Johnson of HR wrote with some advice to Miss Wright stating that it would be normal to start a recuperative program on four hours a day. Given the current lack of medical information, she suggested that they start Mr Gallop on three hours a day, increasing to four hours during the second week. She advised that Mr Gallop would need to show that he was able to increase his hours and return to full hours within 12 weeks. If he were to struggle, she observed that he has a bank of annual leave to use that would give him some flexibility.

[95]Mr Gallop returned to work as planned on 4 January 2022, working three hours a day for the first week. He was late into work on his second day and Miss Wright permitted him to start at 1pm. She sought advice from Mrs Johnson, indicating that she would like to be able to continue to expect Mr Gallop to start at 10am. She expressed concern that if he started at 1pm as a routine, it would be difficult for him thereafter to increase his hours. Mrs Johnson’s advice was, (page 527) that in the absence of any medical guidance, it was not unreasonable to ask Mr Gallop to start at 10am. She expressed the view that Mr Gallop needed to be at work, where there are supervisors and colleagues present to support him.

[96]On 7 January 2022, Mr Gallop commenced a further period of absence due to fatigue. The decision was then made to move to a formal capability process.

[97]On 20 January 2022, Mrs Johnson wrote to Workplace Health asking some questions in anticipation of an appointment Mr Gallop had with them on 28 January 2022, (page 535). She asked for a short term and a long term prognosis on his return to work, whether there were reasonable adjustments that they should consider to assist his returning to work and to maintain attendance. She also asked whether advice could be given for a suitable recuperative duties plan to support his return to work. In her email, she made the observation that they had not yet received the report from the appointment on 20 October 2021. She wrote that she understood they were waiting for Mr Gallop’s consent, (as we have seen, he had in fact provided his consent on 3 January, page 510a) and she asked that Workplace Health ensure they obtain his consent promptly in respect of the forthcoming appointment.

[98]Mr Gallop was invited on 28 January 2022 to attend a First Formal Capability (Attendance) Meeting on 23 February 2022.

[99]In the meantime, on 28 January 2022, Mr Gallop missed his appointment with Workplace Health. The appointment was to be by telephone, he missed the call and forgot about the appointment. The appointment was subsequently rearranged and took place on 21 February 2022, resulting in a report dated 31 March 2022, (page 797, see below).

[100]On 2 February 2022, Mr Gallop and Miss Wright spoke on the telephone, (page 1801). He protested that he did not consider it appropriate that he should have been moved to Stage 1 of the Capability Management process whilst he was still not at work. Miss Wright asked if there was anything they could do to help him and he said not.

[101]The Stage 1 Capability Meeting was scheduled to take place on 23 February 2022, to be heard by Mr Gray, (Detective Inspector). Mr Gallop emailed on 8 February 2022, (page 1803) to say that he had an appointment with the CFS / ME Clinic on 4 March 2022 and requested that the Stage 1 meeting be postponed until after that. Mrs Johnson advised Mr Gray against agreeing to the postponement: “The Stage 1 meeting is to consider if David’s attendance to date is satisfactory or not. If it is considered satisfactory then there will be no further formal action. If David’s attendance is considered unsatisfactory then he will be issued with an improvement plan and first written warning. Regardless of the outcome we would still consider any new medical advice received following the Stage 1 meeting to continue to support David during his absence and on his return to work.”

[102]Mr Gray refused the postponement request.

[103]The Stage 1 Formal Capability (Attendance) Meeting took place on 23 February 2022, (page 1816). The outcome was that Mr Gallop was issued with a First Formal Warning of 12 months duration. The warning is dated 3 March 2022, (page 1836) in respect of we note the following: 103.1. Mr Gallop’s absence had been over a significant period of time on many occasions and attempts at a return to work had been unsuccessful; 103.2. At that point there was no prospect of a return to work; 103.3. Mr Gray wrote, “Your lack of acknowledgement of the support Workplace Health gives to the employee but also to the organisation in having the medical information available to support the employee. This is coupled with you not taking personal responsibility to contact Workplace Health to rearrange the appointment”; and 103.4. Mr Gallop’s absence was having a significant impact on his team and an increased demand on his colleagues.

[104]The criticism in relation to Workplace Health seems harsh. The appointment had been rearranged.

[105]The Improvement Plan is at page 1831. Mr Gallop was expected to return to work on 3 April 2022 when his latest Fit Note expired. He is set the standard unamended sickness absence targets in accordance with the Respondent’s policies noted above. He is directed to take personal responsibility regarding his own health and wellbeing. He is required to inform management of any reasonable adjustments that may be required. He is warned that if his attendance does not improve, he will progress to the next formal stage of the Capability Policy.

[106]Mr Gallop remained absent until 20 April 2022.

[107]We note and accept Miss Wright’s evidence at paragraph 23 of her witness statement that at this stage, Mr Gallop’s absence was increasing the workload on other members of the DAST, which was adversely affecting service delivery.

[108]Mr Gallop received formal diagnosis of ME / CFS on 4 March 2022. The report from the NHS specialist service for ME / CFS, (page 547) referred to Mr Gallop’s activity range of 50% on a good day and 20% on a bad day. He was described as probably depressed. The cause is thought to have been that Mr Gallop suffered Glandular Fever many years previously and then more recently, a viral infection in the summer of 2021, which would have triggered the condition. He was told that the Occupational Therapy Department will support him and he was advised that if he gets better and decides to return to work, he should have a phased return to work with possibly one or two days off during the week.

[109]Mr Gallop confirmed the diagnosis to Mrs Johnson in an email of 8 March and passed on the advice that any return to work should be cautious and likely starting with working every other day. He indicated that he understood that the advice from the OT would be available to the

[110]On 25 March 2022, Miss Wright sent to Mr Gallop a proposed Return to Work Plan, (page 559) with two options, in anticipation of his returning to work on 1 April 2022, as planned. Both entailed starting with alternate days off, four hours a day under Option 1 and 5 hours a day under Option 2, gradually building to full time over 12 weeks. Mr Gallop replied, (page 558) that the proposed return to work was unrealistic. He conveyed he had been spoken to by the ME / CFS clinic doctor, who had suggested that any initial return to work should be a couple of hours every other day and increased very slowly, at least initially. He said that it is unfortunate that the letter to the GP, (referred to above) only specified a day or two off each week. He explained that the OT Clinic had told him that he would likely have to wait for months for an appointment and that he had made an appointment with his GP to discuss her opinion of his return to work.

[111]We note Mrs Johnson chased the Force Medical Advisor and Workplace Health, for a report, (pages 557a and 577b). The report being chased is that in respect of the meeting with Mr Gallop on 21 February 2022.

[112]The report from the 21 February consultation with Workplace Health is dated 31 March 2022, (page 797). The doctor reported that Mr Gallop was due to have an initial consultation with the Chronic Fatigue Syndrome Service Specialists at the beginning of March. He had been diagnosed by his GP with Chronic Fatigue Syndrome and Fibromyalgia. He said the short term prognosis for a return to work was not good. He said that the long term prognosis was very uncertain, commenting, “Generally speaking past sickness absence record is the best guidance to likely future sickness absence record barring any new medical issues.” He went on to say that in this case, there were potential new medical issues, that of CFS and Fibromyalgia against the background of other underlying diagnosis set out in previous reports, (i.e. anxiety and depression) which he said, “May turn out to be the true determinants of working patterns / sickness absence patterns overall in the long term.” He wrote that in discussion with Mr Gallop, they had been unable to identify much to recommend by way of adjustments that could assist. He recommended that the Respondent await advice from the CFS Specialist Clinic Occupational Therapist, which he said would be the best guidance, warning again that the return to work program was likely to be prolonged and slow.

[113]On 23 March 2022, Miss Wright sought some advice from Mrs Johnson, (page 557) noting that Mr Gallop’s Fit Note was to expire on 31 March and indicating she was thinking of asking him to do four hour shifts from 10am to 1 o’clock.

[114]Mrs Johnson gave her advice in an email of 31 March, (page 565/6) stating that if Mr Gallop was not able to return to work four hours a day every other day, which is an adjustment to what they would usually seek in a Return to Work Plan, then he is not fit to work at all. She advised that if Mr Gallop does not return to work, Miss Wright should consider moving to Stage 2. She advised Miss Wright that she may to move straight to Stage 2, or she can wait for further medical advice, as that might indicate a return to work date. She noted that the latest WPH report recommended waiting for the Specialist Clinic’s advice with regard to a recuperative plan and so she suggests Miss Wright wait and see what the GP’s advice is.

[115]Later in the day on 31 March, Mr Gallop sent Miss Wright his GP’s Fit Note which is at page 562. This is an important document. It states that Mr Gallop may be fit to return to work on a phased return to work on altered hours, suggesting that he should aim to return to work on 18 April 2022 with a phased return of two to three months, initially two hours a day, alternate days. In his covering email, (page 561) Mr Gallop confirmed he had received that day an appointment at the ME Clinic for 13 July with the Occupational Therapist.

[116]In an email of 6 April 2022, Mrs Johnson reiterated her advice to Miss Wright that if Mr Gallop was unable to return to work at least for half his hours per week, he is not fit to return to work. That was not the advice of the GP.

[117]On 13 April 2022, Miss Wright and Mr Gallop discussed his return to work on the telephone. Miss Wright records this telephone conversation in an email that day to Mrs Johnson and Mr Gray, (page 564/5). She reported that Mr Gallop was not happy at the prospect of being moved to Stage 2, which he perceived as being provocative. Mr Gallop had expressed the view that the Respondent was ignoring medical evidence and was setting him up to fail. He said the medical advice was two hours every other day, for a couple of weeks. He said his doctor’s advice had been to build up slowly, that if he was to work four hours a day, including travelling time, that would take him over double what is recommended. Mr Gallop said he could probably come in for four hours a day but he would not be very productive. Miss Wright said that would impact on the team, which Mr Gallop appreciated. Miss Wright tells Mrs Johnson and Mr Kyle that she is thinking of trying two hours every other day for a two week period, before moving to Stage 2, as advised by the GP on the latest sick note, with a phased return over two to three months. A sensible proposal.

[118]Miss Wright tells us in her witness statement, (paragraph 35) that Mrs Johnson and Mr Gray reiterated to her that if Mr Gallop was not able to work four hours a day on alternate days, he was not fit for work.

[119]On 19 April 2022, Mr Gallop wrote an email to Miss Wright, copied to Mrs Johnson and Mr Gray. The email opens, “Dear all” and so is apparently addressed to all three of them. He says that the FMA’s advice is being ignored and he is being set up to fail. He complains there was no need to inform him that they had decided to move to Stage 2 whilst he was still off sick, which only heaps further stress upon him. He suggests that movement to Stage 2 is cynically opportunistic and not supportive. He wrote that he was struggling, “not to use the term bullied”. He writes, “I have attempted to return to work twice before, prior to the diagnosis confirmation and both have failed. I have not seen the evidence of why the organisation believes that it is facilitating a successful return to work given the circumstances.”

[120]He never received a reply to this email. The lack of a reply is Issue 7(f). Miss Wright’s explanation is that she was not at work on that day, Mr Gallop in fact returned to work on 20 April and she said she did not think it was necessary to respond as they had already discussed the issues on 13 April. There was no explanation as to why Mrs Johnson or Mr Gray did not reply.

[121]On 20 April 2022, Mr Gallop returned to work. He was on a plan of recuperative duties, scheduled to work four hours a day on alternate days, gradually increasing to being back full time over 12 weeks. He was on full pay. In the period between 20 April and 13 May 2022, he worked a total of 8 days of four hour shifts. He was absent due to sickness on 27 April and 9 – 12 May. He began a further period of absence due to chronic fatigue on 15 May, which lasted until 5 June 2022.

[122]An Absence Support Meeting with Miss Wright and Mrs Johnson took place on 1 June 2022. The Recuperative Plan’s 12 weeks was reset and it was confirmed he could apply for it to be extended again, or he could be paid for the hours that he was able to work. Mr Gallop confirmed he was willing to accept reduced pay. He suggested working from home, but Mrs Johnson said that would have to be via an ongoing review of home working called “Modern Workforce Program” in respect of which he could expect an interview in due course.

[123]Also on 1 June 2022, the FMA provided a further report, (page 799) following a telephone interview with Mr Gallop on 25 May 2022. He explained that Mr Gallop had confirmed he had received the diagnosis from the Chronic Fatigue Service that he had Chronic Fatigue Syndrome and that he was now awaiting an appointment with OT in July, which should make recommendations about activity levels and Return to Work Programs. He said that the overall Occupational Health advice is the same as in the previous report, i.e. that of 21 February 2022.

[124]Mr Gallop returned to work on 8 June 2022 and met with Miss Wright for a Recuperative Plan meeting on 13 June 2022, notes of which are at page 592. The notes record the GP’s advice of a phased return to work over two to three months, initially two hours alternate days. Miss Wright wrote in her note that this was considered alongside the Workplace Health advice from Dr Roberts. She noted that the advice was in respect of recuperative duties and to wait for advice from the CFS Specialist OT. The Recuperative Plan put in place is for Mr Gallop to work four hours a day on alternate days for the first three weeks, five hours a day alternate days on the fourth week, six hours a day on alternate days for the fifth week, then over the following six weeks, working every day with the hours gradually increasing from 18 hours a week to 35 hours a week. He is expected to return to full hours by the week commencing 22 August 2022, although it is expressly stated this could be extended by somebody senior in HR called Ms Murphy.

[125]Mr Gallop commenced a further period of absence due to chronic fatigue and depression on 27 June 2022, (page 603).

[126]We note and accept at this stage, the evidence of Miss Wright at paragraph 44 of her witness statement, that Mr Gallop’s absence was continuing to adversely affect service delivery, by increasing workload on other members of the team.

[127]A Stage 2 formal meeting was arranged for 21 July 2022.

[128]In the meantime, on 13 July 2022, the ME / CFS Specialist Occupational Therapist provided a letter after meeting with Mr Gallop, (page 800). The Therapist explained that everybody is different, some people with this diagnosis do well and make a good recovery, while others remain unwell for many years without any improvement. Some do not return to previous levels of physical and cognitive ability. It is not possible to predict how each person might improve. She explained the fluctuating nature of the condition makes it difficult for Mr Gallop to maintain a consistent level of activity. She reported his current functioning level is between 15 and 20%. She advised that people need to be functioning at about 65 to 70% before going back to work and they should have an implemented gradual phased return to work planned over many months. She wrote that it was important to note that set backs are inevitable and that can lead to periods of sickness when symptoms are so severe the individual is unable to function for several days. She said that common triggers for set backs would be over-activity, stress / stressful situations, viruses, extreme temperatures and surgery. She wrote that Mr Gallop may not be able to avoid time off and an understanding approach would be of significant benefit. Notably, the letter finishes, (it was addressed to “whom it may concern”), “If you have any queries, please do not hesitate to contact me”.

[129]The Respondent did not contact them. Nor did the FMA.

[130]The Stage 2 Capability Meeting took place on 21 July 2022 chaired by Ms Hinds, (Chief Inspector) accompanied by Mrs Johnson from HR and Miss Wright attending as Mr Gallop’s Line Manager. The notes are at page 1926. Mr Gallop was accompanied by a UNISON Representative. Mr Gallop expressed that he was not happy to be at Stage 2, but accepted that his attendance had been unsatisfactory. He said that he was happy with the support that he had received. He made it clear that he wanted to get back to work. The possibility of a career break and hybrid working, (presumably home working) was discussed. The outcome was that he was issued with a Final Written Warning, (page 1944) which was to be in place for 12 months. An Improvement Plan was set, (page 1940): the recuperative period was reset at 12 weeks and the target return to work date was 25 July 2022. The attendance target was, “to have no more than two occurrences of sickness (each lasting no more than two days) up to 1 May 2023.”

[131]That is a target significantly more stringent than that set in the Policy. One would have thought this was obviously, beyond what Mr Gallop could hope to achieve.

[132]Mr Gallop returned to work on 25 July 2022.

[133]Mr Gallop maintained his attendance in accordance with the Improvement Plan to begin with.

[134]Mr Gallop attended a physiotherapy appointment on 18 August 2022, the report dated 23 August 2022 is at page 803. His current ability to work is scored at 2/10. His pain score, (0 is no pain and 10 is worse pain imaginable) is 10/10. On return to work, the Report reads: “David would require a graded, step-wise approach to returning to work. This needs to be based on how he is feeling and functioning rather than time, however, the aim is to return to full duties within six months. It would be advised that David have fortnightly meetings in place with his Line Manager and an Occupational Health Advisor to discuss how he is doing and what he feels he is capable of for the next fortnight. Anything else may run the risk of David not being in control of his work environment and requiring additional time out of work to recover. … It is advised that David be in control of his working hours and days where appropriate and reasonable. Additionally, regular meetings with David would ensure he is completing a suitable workload and can help plan for the rest of the week depending on his current physical state. It should be noted that David may be required to work differing hours throughout the week with physical condition monitored throughout as this may be affected / influenced by various factors (spending time with his children, work commitments etc). Equally if he knows work isn’t very stressful and is on top of his workload he may elect to increase his hours because he feels well enough to do this. It is vital that his line manager and occupational health work alongside David and empower and assist him with taking control of his work life so he feels comfortable discussing any increase or decrease in his hours and work duties, to allow him to be the most productive employee he can be.”

[135]Mr Gallop was absent from work on 10 August 2022, which triggered another Attendance Support Meeting on 7 September 2022.

[136]On 2 September 2022, Mr Gallop had seen the Force Medical Officer, but his report was not conveyed to the Respondent until 1 November 2022, see below.

[137]At the Attendance Support Meeting on 7 September, (page 613) with Miss Wright, she records that Mr Gallop was not feeling his best, he had been pleased to achieve the Recuperative Plan thus far and felt he will not be able to increase those hours on 12 September as anticipated, explaining that increasing his hours goes against the professional advice he has been given. He is recorded as saying that he was happy at work, enjoyed what he was doing and felt supported, but that he had struggled over the previous two days. He said that the FMA had not been able to access his Physiotherapist’s Report and had said that he wanted Mr Gallop to obtain from the ME Clinic, “what a phased return looks like”. Miss Wright asked him whether he had followed up on recommendations she had made to him about something called Reverse Therapy and he replied that he did not think that it was the kind of therapy that would help him. They discussed the possibility of reducing his contracted hours or flexible working. Mr Gallop was recorded as acknowledging the affect his absences were having on the team. He said he was keen to get back to work. Miss Wright said she would discuss the possibility of extending the 12 weeks recuperative period with HR.

[138]Mr Gallop increased his hours to five hours a day on five days a week, but wrote on 9 September to Mrs Johnson that he was concerned about stepping up again the next week, (617).

[139]On 12 September 2022, Mr Gallop entered a period of absence from which he did not return. He did not return to work again before the end of his employment.

[140]On 14 October 2022, Ms Murphy of Human Resources wrote to confirm that the Recuperative Plan could be extended for four more weeks, but that after that, the Respondent would need to pay him for what he can work or he would need to submit a flexible working request.

[141]On 24 October 2022, Miss Wright wrote to Mr Gallop that if he were to return to work on 31 October when his existing Fit Note expired, the Recuperative Duties would resume where he had left off, with a four week extension. In other words he would return to a work pattern of alternate six hour and five hour days followed by six hours a day the following week. See page 653.

[142]Mr Gallop’s wife replied on his behalf on 25 October 2022, (page 652) protesting that the Recuperative Plan does not take into account Mr Gallop’s condition and was not workable for someone with ME and Fibromyalgia. She protested that the expectation that he would return to work and simply pick up on the level of hours he had been on previously, was unrealistic. She protested that Mr Gallop tried very hard to comply with the Recuperative Plan, but that the speed with which the hours and days were increased was not suitable and was contrary to the Occupational Therapist’s recommendations. She described the plan as ill conceived, with minimal chance of success. She protested the Respondent appeared to be proposing to move Mr Gallop onto a zero hours contract.

[143]Mr Gallop’s Occupational Therapist provided him with a not particularly helpful template example of a Return to Work Plan, (page 656) which he forwarded to the Force Medical Advisor. The template contained the following as a standard recommendation: “I recommend he/she remains on 2 hours per day, one day per week for the first four weeks;”

[144]The Occupational Therapist commented in her covering email that the phased return to work template could be adapted, “We can adapt this for you if you feel it would help?” She wrote that, “The key point is you have to be well enough to implement a phased return to work, then sustain work.” She also invited contact if there were any queries.

[145]Mr Gallop submitted a Grievance on 1 November 2022, (page 977). He complained about: 145.1. Continual dismissal of medical advice; 145.2. Being denied working from home; 145.3. Continual dismissal of his disability; 145.4. Proposals to change his contract to zero hours; 145.5. An error in his pay; and 145.6. A disconnect from the reality of ME / CFS.

[146]The proposed Stage 3 Capability Hearing was accordingly, postponed.

[147]The Respondent received the Force Medical Advisor’s report of 2 September 2022 on 1 November 2022, (page 807). It is not clear why there was a delay, but there is no suggestion that it was the fault of Mr Gallop in any way. The Advisor, Dr Roberts, wrote that they had urged Mr Gallop to try to persuade the Occupational Therapist to provide a phased Return to Work Program, which he would recommend be used as a template for his return. It repeats their previous advice that Chronic Fatigue Syndrome cases, returns to work are often prolonged and need to be gradual and flexible.

[148]On 14 November 2022, the Respondent refused to allow Mr Gallop’s wife to accompany him at the Grievance meeting, (page 985).

[149]The grievance meeting took place on 28 November 2022, (page 988). The grievance was heard by Mr Broome, (Superintendent). He adjourned to investigate.

[150]On 5 December 2022, the Respondent received a further report from the Force Medical Advisor, which advised there was no change from their previous report.

[151]Mr Gallop was invited to attend a further Absence Support Meeting on 12 December 2022 and he wrote in reply on 7 December, (page 683) that he was willing to return to work, working from home two hours a day every other day, to be reviewed by the CFS / ME Clinic after three to four weeks, with a view to increasing hours in an incremental way they deem sustainable and responsible. He requested that a laptop and telephone be made available for him so that he can commence working from home on 19 December 2022. The Physiotherapist had provided a further report on 8 December 2022. Miss Wright did not have this in time for the ASM on 12 December 2022. The Physiotherapist’s report again cited Mr Gallop’s current work ability at 2/10 and his pain score as 10/10. They wrote: “David has recently been seen by the Chronic Fatigue Team who have recommended he go back to work, working from home, two hours per day every other day. I agree with this recommendation with an aim to review this every four to six weeks.”

[152]We note at page 815, at a tick box section of the Physiotherapist’s Report, it is suggested that they anticipate a 25% level of recovery after 12 months.

[153]At the Absence Support Meeting with Miss Wright and Mrs Johnson on 12 December 2022, Mr Gallop conveyed that the advice he had from the CF / ME Clinic was that he should return to work working from home two hours a day every other day. Miss Wright is recorded as responding that the Respondent could not support a return to work until he is fit to work at least four hours per day. It is suggested that he returns to work utilising accumulated annual leave to break up the week. In terms of the request to work from home, the indication appears to be that this will be possible, because an assessment has recently determined that the Investigator role can be split 60 / 40 between office and home working. Mr Gallop was reminded he can submit a flexible working request if he did not feel able to return to work 37 hours a week in the long term. Miss Wright indicated the Respondent might be prepared to consider allowing Mr Gallop to work an average number of hours, depending on how he was feeling, but they would want to have a plan in place and see his hours increase over the four week period. Included in the Action Plan is to ensure Mr Gallop has the equipment necessary to work from home on his return to work, which is hoped would be on 19 December 2022.

[154]We note that for this meeting, Mr Gallop was not accompanied by his Union Representative, who wrote by email to Mrs Johnson, (page 690): “From a UNISON perspective I have no objection to you request for 4 hours minimum working day, this is in line with policy and given the time David has been off I feel is reasonable to ensure his refamiliarization with the role is met, I also have no objection to him being asked to use leave on his days off in order to bring his leave balance down.”

[155]On 13 December 2022, a Ms Fiddes of HR updated Mr Gallop on the grievance, explaining that Mr Broome was not yet in a position to update on progress because of operational pressures, (page 1098). Mr Broome provided a further update on 22 December 2022, (page 1100) explaining he had been unable to complete his investigation before Christmas because of other commitments and he hoped to have the matter completed in the early part of January.

[156]On 19 January 2023, with Mr Gallop’s permission, Mrs Johnson asked the Force Medical Advisor if medical redeployment might be appropriate. In due course, the Medical Advisor replied not.

[157]On 26 January 2023, Mr Gallop attended a Grievance Outcome meeting with Mr Broome, the minutes of which are at page 1106 and a report Mr Broome read out at that meeting is at page 1108. Overall, the grievance was not upheld. The report runs to 19 pages. He wrote in relation to Mr Gallop’s complaint that the medical advice was being ignored: “David may consider the advice to have been “dismissed” but my assessment is that David will not accept any decision that does not align exactly with the medical advice. Whilst David’s priority is naturally his health, managers also have a responsibility to ensure that the collective impact of sickness absence does not erode the organisations’ ability to deliver service to the public, that the additional work that falls to others is fair and manageable, and that the cost incurred from the public purse is sustainable. Whilst the current Recuperative Duties Plan does not align exactly with the ME / CFS service advice, I do not think that the Plan is so manifestly out of line with the advice to reach a conclusion that the medical advice is being “dismissed”; my assessment is that it is both implemented in a fair and balanced way with acknowledgment consideration to medical advice and David’s personal health needs.”

[158]He further writes: “In conclusion, over the last three and a half years there have been sustained attempts to return David to work through a range of reasonable adjustments; new chair and desk, FWA, reduced contracted hours, flexibility on start / finish times, redeployment, agreement to explore home working and a range of recuperative duties plans associated extensions. Despite what I consider to be fair and generous efforts by the organisation, David has not returned to work in a sustained way. The facts clearly evidence that the organisation has considered and applied the advice in a fair, proportionate and supportive way and as such, I find this element of the grievance unsubstantiated.”

[159]In relation to home working, Mr Broome did uphold Mr Gallop’s complaint. He wrote that by the time of the first request for home working in December 2021, the organisation had secured additional laptops, (there had been a shortage during the Covid lockdown) and his view was that it would be reasonable to expect the organisation to have prioritised access for those vulnerable to Covid and with disabilities; they ought to have been able to provide Mr Gallop with a laptop by December 2021. He identifies that the decision not to consider home working in June 2022, making reference to the pending review, conflates the question of categorisation of the Investigator role working from home review and the separate question of whether home working should be permitted as part of a Return to Work Plan.

[160]After the Grievance Outcome meeting, Mr Broome followed up by asking for some further documentation relating to diagnosis and prognosis, which he thought had been missing from the package supplied to him. That was subsequently provided to him the same day and he provided his finalised outcome in writing, sending it to Mr Gallop on 2 February 2023, (page 1143).

[161]Mr Gallop appealed the grievance outcome on 6 February 2023, (page 1149).

[162]The Force Medical Advisor provided a further report dated 2 March 2023, (page 817) confirming redeployment would not hold any advantage and that there was no new Occupational Health advice available.

[163]As Mr Gallop remained off work, a further Absence Support Meeting was arranged for 27 March 2023. However, that did not go ahead because Mr Gallop was not fit to attend, even remotely.

[164]An Absence Support Meeting did take place on 26 April 2023, (page 715). The meeting was attended by Miss Wright and Mrs Johnson. Mr Gallop acknowledged he had missed two previous appointments for Absent Support Meetings because he had been terribly unwell, as he still was. He believed his career was over and he would not be able to return to work. He said he could not even go out for a lunch with his wife and children without it impacting on his health for the next two or three days. He said he had been told by the CF Clinic that the Recuperative Plan put in place was too aggressive and it had reached a point where Mr Gallop could not continue. He said that the best option for recovery is to follow the recommended steps. He said that his symptoms had continued to get worse due to the stress of work. Miss Wright seems to suggest that Mr Gallop had not followed up on the “abundance of help out there”, to which Mr Gallop had been signposted. Mr Gallop explained he had not applied for flexible working because he did not, “know what it would look like”. He said the Clinic had advised him that the phased return in April to September was too aggressive and had knocked him back and that’s why he had not applied. He made it clear he did not expect to receive full pay for working less hours. They discussed the possibility of a career break.

[165]In the meantime, Mrs Scott, (Chief Superintendent) met with Mr Gallop on 7 March 2023 to discuss his appeal against his grievance outcome. Again, the Respondent refused to allow him to be accompanied by his wife.

[166]After the meeting, Mrs Scott sought further documents to consider and realising it was going to take longer than she had hoped to provide an outcome, via Ms Murphy of HR, explained on 13 April she hoped to provide an outcome the following week.

[167]Mr Gallop then met with Mrs Scott to hear the outcome of his grievance appeal on 3 May 2023. We were taken to a passage in the transcript where refusal to allow Mr Gallop to be accompanied by his wife was discussed. It appears that the refusal was by Human Resources and Mrs Scott had been unaware. The Human Resources Advisor, Ms Fiddes, is recorded as having said that Mr Gallop had not replied to her refusal explaining why he needed someone to attend with him as an adjustment. That does not appear to be correct, as we see in Mr Gallop’s email to Ms Fiddes of 28 April 2023, he explains that he wants his wife to attend as a reasonable adjustment because the Union Representatives are strangers to him, which does not help his situation.

[168]Mrs Scott told Mr Gallop that she would reflect on her report and consider whether she had missed anything. She subsequently concluded not and confirmed the outcome, not upholding the appeal, on 7 July 2023, (page 1294).

[169]On 19 May 2023, Mr Gallop declined the offer of a career break.

[170]On 2 June 2023, the Force Medical Advisor reported that the medical situation was unchanged and there was no further Occupational Health advice that could be offered, (page 818).

[171]On 18 July 2023, Mr Gallop was invited to attend a Stage 3 Capability (Attendance) Hearing to be on 11 August 2023. On 20 July, Mr Gallop confirmed he would be able to attend.

[172]On 26 July 2023, Mr Provart, (Chief Superintendent) wrote to Mr Gallop to say that he would be chairing the Stage 3 Hearing, enclosing the hearing pack, including his absence record, (page 1970).

[173]On 8 August 2023, Mr Gallop wrote to Human Resources copying in Mrs Johnson and Miss Wright, stating that due to the current state of his health he would not be able to attend the scheduled meeting. He referred to the meeting as, “A fundamentally flawed, tick-box exercise that enables the organisation to dismiss me without recourse. I will not accept this continuation of enforcements constructing a narrative heavily in favour to the organisation.” He referred to the hearing outcome as being a forgone conclusion. He said if there was a contractual requirement for him to attend the meeting, it would have to be rescheduled in September.

[174]Mrs Johnson replied the next day to say that the Capability Policy does indeed say that the individual must attend the hearing and that if the individual is unable to attend, there may be a short delay to an alternative date convenient to them. She asked Mr Gallop to give an indication as to when he may feel able to attend or alternatively, she says that he will have the opportunity to submit written representations.

[175]Mr Gallop wrote to Mrs Johnson on 11 August saying that he would be unable to produce written representations in the given time frame. He said that in order for him to attend, the meeting would have to be rescheduled for September, on 6 September at the earliest. He requested that he be permitted to be accompanied by his wife. Ms Murphy replied to confirm that the hearing would be postponed and rescheduled for 30 August 2023. Mr Gallop replied to explain that he was due to go on holiday in the last week of August and repeated his request the hearing be rescheduled for 6 September or thereafter, (page 2083/4). Mr Provart wrote on 14 August 2023 to Human Resources: “Can you advise me of the circumstances of Mr Gallop being on zero pay, on sick leave from work, whether he needs to have this leave granted or whether he is at liberty to take it without consultation. In the circumstances, he does need to provide the written statement setting out (clearly) the issues for consideration, but at this stage I am minded not to move on the date. I feel that any further delay to the written statement would only be at a detriment to Mr Gallop, and to my position as Independent Chair, and I would be happy to reassess the date of the Hearing, if the written statement is provided in the next week so we have time to consider its contents and more properly understand the issues to make further informed choices. Therefore unless any advice is to the contrary, keep the current amended date, stress the importance of the statement, and the quicker that comes in, then we may review the date again based on the new information.”

[176]A few points to make about this email. Firstly, Mr Provart appeared to be under the incorrect understanding that Mr Gallop had not booked his leave, he had. Mr Provart has not categorically refused to change the date, he has indicated that if Mr Gallop can provide written representations as to why he needs the date to change, he would consider it. That information was not passed on to Mr Gallop by Human Resources.

[177]Ms Murphy wrote to Mr Gallop on 18 August that she had spoken to Mr Provart and that the decision was the proposed short delay to 30 August was appropriate and the hearing would proceed on that date. She invited Mr Gallop to submit written submissions if he was unable to attend.

[178]Mr Gallop submitted his written representations on 29 August, (page 2088). He wrote of the unachievable nature of the Recovery Plan, describing it as aggressive. He wrote that the arrangements for home working were offered a year too late and the suggestion of flexible working is irrelevant, unless one knows how many hours one would be able to complete. He complains that it is unfair in the Hearing Pack for suggestion being made that he had not taken personal responsibility following up medical appointments, just because of one oversight. He objects to the suggestion that he appears to want to sit on working two hours a day every other day for as long as possible and the suggestion that he expected to be put on full pay for such reduced hours.

[179]Mr Gallop did not attend the Stage 3 meeting on 30 August 2023, which proceeded in his absence. The outcome was that he was dismissed from the Respondent’s employment, confirmed in a letter dated 31 August 2023, (page 2094). The letter refers to his levels of absence, that his return to work is unlikely to be achieved in the near future, that he has been supported throughout the previous 12 months without improvement to his attendance and that his absence was having a detrimental impact on his department. Dismissal was with notice, which expired on 27 September 2023.

[180]Mr Gallop appealed the dismissal by email dated 7 September 2023. Mr Buckley, (Chief Superintendent) was appointed to hear the appeal, the hearing took place on 1 November 2023. At the Appeal Hearing, Mr Gallop was permitted to be accompanied by his wife. The hearing was postponed and reconvened on 27 November 2023, when Mr Buckley gave the outcome orally, which was that the appeal was not upheld. We note that Mr Buckley expressed that he would have preferred that the Stage 3 meeting had been postponed so that Mr Gallop could attend. However, he did not consider that it would have made a difference to the outcome.

[181]Mr Buckley was subsequently involved in a major incident which took place in Norwich in December 2023, (which the Tribunal well recalls) and therefore unfortunately, he was not able to confirm the appeal outcome in writing until 11 January 2024, (page 2201). Amongst his conclusions, Mr Buckley did include a statement that Mr Gallop did not offer / agree to a plan other than full pay on reduced hours. As we have noted, Mr Gallop did say more than once that he did not expect to continue to receive full pay.

Conclusions

[182]The Respondent accepts that Mr Gallop was disabled at all material times, that is, from October 2021, by reason of each of depression and ME/CFS.

[183]As a summary overview: 183.1. Mr Gallop had a very bad attendance record over a number of years and ordinarily, handled correctly, an employer ought to be able to terminate the employment of an employee with such a level of absence without incurring liability. 183.2. In this case, to begin with, the Respondent acted appropriately. Although Mr Gallop puts his absences before October 2021 down to a toxic environment at work, it is clear to us from the February 2020 FMA report that his depression was a significant factor. The Respondent made a reasonable adjustment, it redeployed him to a different team on better terms and conditions of employment. 183.3. The problems arise when Mr Gallop develops a new and unrelated condition, which also amounts to a disability. The Respondent appears short on patience. It does not follow the very early advice that Mr Gallop’s return to work will have to be very gradual and prolonged. There appears to be a mindset that if it is in accordance with policy, it is reasonable. An employers obligations under the Equality Act in respect of disabled employees is are more sophisticated than that. 183.4. The Respondent has clear medical advice in the form of a fit note on 31 March 2022 that a phased return to work at that time, should initially be for 2 hours a day on alternate days. The FMA had warned the Respondent that it would take a long time. The Respondent ignores that advice. 183.5. We keep in mind the absence record and the impact Mr Gallop’s absence has on the other members of his team, but it is the Respondent’s failure to act at an early stage on the medical advice, that places it in difficulty. Had it done so, either Mr Gallop would have succeeded in returning to work in a reasonable time frame or, the respondent would have been able to manage his exit from the business sooner that it did, because he was not able to establish sustainable attendance within a reasonable time frame. Discrimination Arising from Disability – Section 15 EqA 2010. Legitimate Aims and proportionality

[184]Where allegations of unfavourable treatment are found to have been made out in the paragraphs below, we have gone on to consider whether the Respondent has established a legitimate aim, whether the unfavourable treatment could achieve that aim and if so, whether it was a proportionate means of doing so.

[185]The legitimate aims relied upon by the Respondent in respect of each allegation of unfavourable treatment are set out at paragraphs 90 and 91 of the Amended Grounds of Resistance as follows: “90. The Respondent is responsible for providing a publicly funded emergency service and must ensure that it does so competently, efficient and cost effectively. The Respondent cannot reasonably allow employees to be absence on an unlimited basis and/or be paid in full whilst indefinitely working a drastically reduced proportion of their contracted hours. 91. The Claimant is part of a small team and his continued absence from work affected team morale and workload of colleagues. The number of hours that the Claimant could sustain at work whilst managing his health was unclear and there was no reasonable timeframe for ascertaining this. The Claimant had disregarded advice from his line manager, who also suffers with ME) to seek additional support from therapy groups and the ME Association, demonstrating little intention to attempt to manage his condition for employment purposes”

[186]It is a legitimate aim to seek to provide a publicly funded emergency service competently, efficiently and cost effectively. That includes managing absence as part and parcel of that objective.

[187]In weighing proportionality, we have had in mind: 187.1. Mr Gallop’s poor attendance record; 187.2. That all the time he was absent, his team of 6 was reduced to 5, his work, important work, was being done by others, there work load was increased and that adversely effected service delivery (that said, there was a surprising lack of empirical evidence about the impact of his absence); 187.3. Mr Gallop’s absence was a cost to the Respondent, in terms of sick pay at his full rate of pay and then half pay… Sickness Absence

[188]The Respondent accepts that Mr Gallop’s disability caused his sickness absence record.

[189]We consider each of the allegations of unfavourable treatment in turn. a. Requiring the Claimant to attend a Stage 1 formal meeting on 23 February 2022;

[190]It is not unfavourable treatment to hold a stage 1 meeting, given level of sickness absence Mr Gallop had at that time.

[191]Absence management is a legitimate aim. However, at this time: 191.1. The Respondent had posed some questions for Occupational Health, (page 535) and had not yet had the report in answer to those questions. Mr Gallop had an appointment on 21 February 2022, (page 536). One would have thought that the Respondent would have waited for the answer to the questions they had posed so that they could make informed decisions. 191.2. Mr Gallop had told the Respondent that his doctor thought he had ME and he had requested a postponement of the Stage One meeting pending his ME appointment in April . 191.3. Either the Respondent had the report from the October 2021 consultation and therefore knew from Occupational Health that he was being assessed for chronic fatigue and would need a phased, very prolonged and slow return to work (page 795), or, they did not yet have the report and should have made sure they have it before proceeding. Either way, in these circumstances it was unfavourable treatment to hold the Stage 1 on 23 February 2022 and whilst the aim was legitimate, the means adopted, by holding the meeting precipitously, was not proportionate. This allegation succeeds. b. Issuing a 12 month formal written warning and Improvement Plan;

[192]In those circumstances, to proceed to give Mr Gallop a warning and improvement plan was unfavourable treatment. As we have said, absence management is a legitimate aim but in these circumstances, the warning and improvement plan was not proportionate. This allegation succeeds. c. Requiring the Claimant to comply with standard absence management triggers;

[193]The Respondent did not require Mr Gallop to comply with standard absence management triggers before Stage 1. They gave him some latitude; he’d had 5 separate absences in 12 months amounting to 199 days absence, (page 1746).

[194]At stage 1 on 23 February 2022, the Respondent imposed as an outcome, the standard triggers. That is a hurdle in front of Mr Gallop, it is unfavourable treatment. As we have said, managing absence a legitimate aim, were the standard triggers a proportionate means of achieving that aim? For same reasons as set out above, we find not. This allegation

[195]Mr Gallop refers to the standard triggers again at (i) and so we take it that 7 (c) applies to Stage 1 only. d. Failing / declining to distinguish between absence related to disability and that related to general illness when assessing levels of absence and applying formal stage triggers;

[196]On analysis of the absence table used by the Respondent throughout its process, updated from time to time, (at page 1981 as used at stage 3) we see that at stage 1, looking at the previous 12 months to February 2021, there are 2 periods of absence that are disability related absence but not identified as such, 13 July to 29 October 2021, “Psychological Disorders – Nerves/Depression/Anxiety and 3 November to 31 December 2021, “Psychological Disorders – Exhaustion/Fatigue”.

[197]After that, every period of absence is disability related and is identified as such.

[198]In relation to assessing levels of absence, the allegations is therefore only relevant to Stage 1. As we have said, the Respondent gave Mr Gallop latitude before Stage 1 and did not apply the formal triggers. There was therefore no unfavourable treatment in this respect. This allegation does not succeed. e. Notifying the Claimant that he was being moved to Stage 2 of the Capability process on 14 April 2022;

[199]The Improvement Plan at page 1831 states that it would start on 1 April 2022, i.e. on Mr Gallop’s anticipated return to work. On basis that Mr Gallop had not returned to work at all, moving to Stage 2 at that point was just the natural next stage of the process and so was not unfavourable treatment as such. This allegation does not succeed. f. Failing to respond to the Claimant’s email of concern about being moved to Stage 2 of the Capability process;

[200]It is unfavourable treatment not to respond to an email. The email relates to Mr Gallop’s absence; he complains about the move to Stage 2. Mrs Johnson in evidence accepted that there ought to have been a reply. It is no answer that there followed a return to work meeting at which Mr Gallop did not mention the email. Failing to reply was not pursuant to a legitimate aim. This allegation succeeds. g. Formally notifying the Claimant that he was being moved to Stage 2 of the Capability process on 1 June 2022;

[201]In submissions, Mr Gallop said that it is discriminatory to move to Stage 2 without making allowances for effect of his disability. As we have said above at (e), Stage 2 is the next stage of the process, not unfavourable treatment in itself, it is the outcome at Stage 2 that is important. This allegation does not succeed. h. Proceeding to Stage 2 of the Capability process despite the Claimant’s return to work being scheduled for 8 June 2022;

[202]The same point applies, it is just the next stage in the process, it is what the employer does at that stage that is important. This allegation does not succeed. i. Requiring the Claimant to have no more than two occurrences of sickness (each lasting no more than two days) from 21 July 2022 to 1 May 2023;

[203]This was a surprising step for the Respondent to have taken. It is unfavourable treatment: imposing an attendance target that is more stringent than the Respondent’s policy standard. Mrs Johnson in evidence acknowledged that the targets were not achievable. It appears to have been the opposite of a reasonable adjustment. It is a step that is contrary to Respondent’s own policies – in particular, the Disability Management Policy at 7.3 to make reasonable adjustments to the attendance standards. In the circumstances, whilst managing absence is a legitimate aim, managing it in this way is not proportionate. j. Requiring the Claimant to undertake a phased return of less than 3 months, in order to return to full time hours by 10 October 2022;

[204]In submissions, Mr Gallop said that his complaint is that the Respondent only allowed him 11 weeks to get back to full time hours.

[205]The Improvement Plan of 21 July 2021 at page 1941 sets the target return to work date at 25 July 2022 and that Mr Gallop is to be back on full hours by 10 October 2022. That is 11 weeks and the policy says, not more than 12 weeks, ( which is less than 3 months). “Not more than” contemplates the possibility that the target date could be in less than 12 weeks. There is a discretion to extend.

[206]The 11 week target is however, unfavourable treatment because the Respondent sets targets in terms of number of hours a day and timescale to full time hours for Mr Gallop that was unrealistic and the Respondent knew it from: 206.1. The FMA report of October 2021 which referred to the need for slow and prolonged returned return to work; 206.2. The fit note of 31 March 2022 recommending 2 hours a day over 2 to 3 months; 206.3. The FMA report of 31 March 2022 which warns of a prolonged and slow return to work; 206.4. The FMA’s report of 1 June 2022 that his advice was the same as previously; 206.5. The ME/CFS Service report of 13 July 2022 warning of difficulties in maintaining consistent levels of activity, that Mr Gallop was currently operating at 15 to 20%, that set back were inevitable and he may not be able to avoid time off, and 206.6. The Recuperative Plan of 13 June 2022 acknowledged that the medical advice had been to start on 2 hours a day on alternative days over 2 to 3 months.

[207]It is a legitimate aim to manage absence, but in these circumstances, it is not proportionate to do so by setting targets that are known, (or ought to have been known) to be unachievable. This allegation succeeds.

[208]The Respondent has not said to Mr Gallop, as it could have done, a prolonged time frame as recommended is not possible because of the serious effect on the DAST team of it being shorthanded and he must therefore be replaced urgently if he cannot return to work in short order. k. Formally notifying the Claimant that he was being moved to Stage 3 of the capability process, which would entail a Final Capability Hearing resulting in possible dismissal, on 20 October 2022;

[209]Mr Gallop was moved to Stage 3 because he had breached attendance targets that we have already said were unreasonable and which he was bound to breach. However, given his level of absences at the time, he had been absent for a month, even if the Respondent had left it at the standard target, Mr Gallop would still have been in breach. As with the previous stages, moving to Stage 3 in itself, given the level of absence, was not unfavourable treatment, it is the outcome at Stage 3 that is important. This allegation does not succeed. l. Taking 173 days to address the Claimant’s Grievance and Appeal;

[210]The time that it took the Respondent to deal with the grievance and appeal does not arise out of Mr Gallop’s absence. It arises out of other matters; the availability of the appointed officers and as Respondent recognised, organisationally, allocating such tasks to senior officers who are bound to have pressing demands on their time. (The tribunal queries, whether it is wise, expedient or cost effective, for police officers to be dealing with such matters in relation to civilian staff at all). This allegation does not succeed. m. Failing to properly address the matters raised in the Claimants Grievance in the Grievance Outcome dated 26 January 2023;

[211]Mr Gallop complained in his grievance that the Respondent had ignored medical advice. Mr Broome set out the medical advice he considered in his outcome, found at pages 1112 to 1115. He failed to note: 211.1. The Fit Note of 31 March 2022 recommending 2 hours a day over 2 to 3 months; 211.2. That on 13 June 2022, Miss Wright had acknowledged that the medical advice was to that effect; 211.3. The ME/CFS Service report of 13 July 2022 warned of difficulties in maintaining consistent levels of activity, that Mr Gallop was currently operating at 15 to 20%, that set backs were inevitable and he may not be able to avoid time off; 211.4. The template return to work plan provided by the Occupational Therapist had as a standard recommendation, a return to work on 2 hours a day to start with, and 211.5. On 8 December 2022, the Physiotherapist had agreed with the recommendation of a return to work at 2 hours every other day, with a review every 4 to 6 weeks.

[212]We find that so far, the Respondent has ignored, dismissed as Mr Gallop put it, the advice that Mr Gallop’s return to work would be over a long term, would need to be flexible and that he needs to start on 2 hours a day, every other day. Mr Broom has done so too. We agree, Mr Broom has not properly considered Mr Gallop’s grievance in this respect. This is unfavourable treatment and arises from his absences, but ignoring this important aspect of his grievance is not pursuant to a legitimate aim. This allegation succeeds. n. Failing to properly address the matters raised in the Claimant’s Grievance Appeal in the Grievance Appeal Outcome dated 19 April 2023;

[213]Mrs Scott does to a point, consider the two hour issue in her appeal outcome, (page 1231), she asks whether it would be reasonable for someone to be paid in full for working 2 hours a day every other day for an indefinite period. She does not review the medical advice and appears to ignore it by suggesting that it would be for an indefinite period. Mr Gallop did not propose that it be for an indefinite period, nor did he propose he be paid in full. We find that she did therefore, fail to properly consider his grievance. This is unfavourable treatment and arises from his absences, but misrepresenting this important aspect of his grievance and ignoring the medical advice, is not pursuant to a legitimate aim. This allegation o. Failing to properly address the matters raised in the Claimant’s Grievance Appeal at the Grievance Appeal Outcome meeting on 2 May 2023;

[214]The grievance appeal outcome meeting recording transcript is at page 1244. It is not clear to us what Mr Gallop says he raised that Mrs Scott did not consider, he does not tell us in his witness statement, nor in his submissions and he did not take us to the document itself, save in respect of the passages at pages1267 and 1269 to do with the refusal to allow his wife to accompany him. That had been dealt with by Juliette of HR and not Mrs Scott. It was not going to make any difference to the outcome of the grievance appeal. This allegation does not succeed. p. Proceeding to Stage 3 of the Capability process;

[215]As with the decisions to proceed to stages 1 and 2, our view is that given the very high level of absence, the decision to proceed is not in itself unfavourable treatment, it is the outcome of the Stage 3 process that is important. This allegation does not succeed. q. Dismissing the Claimant;

[216]Dismissal is of course, a detriment. The Respondent’s dismissal of Mr Gallop was against a back drop of the medical advice having been ignored, the Respondent having failed at an early stage to try the recommended gradual return to work from an initial starting point of 2 hours a day, every other day. Even at this late stage, the Respondent could have paused the process, tried the proposed phased return and if it did not work, come back to Stage 3. The aim of managing absence and maintaining a fully staffed team is a legitimate aim, but in these circumstances the Respondent had not pursued that aim proportionately. This allegation succeeds. r. Rejecting the Claimant’s Appeal against dismissal?

[217]For the same reasons, rejecting Mr Gallop’s appeal was unfavourable treatment but not a proportionate means of achieving a legitimate aim. This allegation succeeds. The Need for a Graduated Return to Work

[218]Mr Gallop’s case set out at paragraphs 9, 10 and 11 of the list of issues cannot succeed conceptually. The need for a tailored return to work plan is really an issue for the complaint of failure to make reasonable adjustments and the matters complained of at paragraph 10 are not, “because” Mr Gallop needed a phased return to work. This allegation does not succeed. Missing Appointments

[219]The Respondent accepts, (Grounds of Resistance paragraph 99) that Mr Gallop’s disability caused him to miss appointments.

[220]Mr Gallop complains that his failure to attend a Workplace Health appointment is cited as a reason for moving to Stage 1. It does not seem to appear in the document setting out the rationale for doing so at page 1751. In submissions, Mr Gallop refers to the outcome letter at page 1836; item 3 refers to his not having taken responsibility for rearranging the missed appointment. That is written after the Stage 1 meeting, it is not a reason for moving to stage 1 and further, item 3 does not criticise Mr Gallop for missing the appointment, but rather, for not taking personal responsibility for rearranging the appointment.

[221]Mr Gallop also complains in this context, that there was a narrative of him not taking personal responsibility for his health based on this single incident. The Respondent’s point was not this single incident, of his missing an appointment, it was also that he had not done enough in their collective view, by way of self-help. This is a narrative which originated from Miss Wright and which she accepted in cross examination, was incorrect. However that narrative is not because of Mr Gallop sometimes not being able to attend appointments

[222]Mr Gallop’s complaint in this respect, fails. Inability to attend a meeting on 11 August 2023

[223]The Respondent accepts that Mr Gallop was unable to attend on 11 August because of his disability, Grounds of Resistance at paragraph 105.

[224]Mr Gallop complains that he was treated unfavourably by the Respondent not taking into account his availability when rescheduling the meeting. That is true; he said he was not available until 6 September and the Respondent re-arranged the hearing for 30 August. The Respondent’s Capability Policy at paragraph 17.2 provides for rescheduling to a date convenient to the employee.

[225]Mr Provart’s explanation at paragraph 7 of his witness statement does not make sense. It does not explain why he did not take Mr Gallop’s availability into account. In cross examination, he did not give an explanation as to why he did that either. He sought to hide behind HR advice, but it seems to us that he took the decision and then asked HR, who confirmed to him, he says, that he was being reasonable.

[226]It is clear from the list of issues that the allegation is that the reason Mr Provart did not take into account Mr Gallop’s availability is that his unavailability was due to his disability. Mr Provart has not explained why he took that decision. We conclude that on these facts, we could properly conclude, absent explanation, that the reason was that Mr Gallop was not available on 11 August, that Mr Provart was irritated by that and therefore, chose not to take account Mr Gallop’s availability in rearranging the hearing. The burden of proof shifts to the Respondent, which has not provided evidence to satisfy us that this was not the reason. We find that it was.

[227]It is a legitimate aim to seek to manage absence without delay as the Respondent pleads at paragraph 106 of the Grounds of Resistance, but it is not proportionate to do so in the manner it does here, deliberately ignoring Mr Gallop’s request, which would have entailed a very minor delay of 6 days, in light of his being on a pre booked and authorised holiday, a person with acknowledge serious mental and physical health issues. The Tribunal does find itself asking itself, why on earth would someone do that? Irritation and impatience appears to us to be the answer.

[228]Mr Gallop’s claim in this respect, succeeds. Failure to Make Reasonable Adjustments – ss 20 to 21 of the EQA 2010

[229]We have taken this head of claim out of order and in particular, before considering indirect discrimination, because it is more logical to do so. Particularly as failure to make reasonable adjustments is the real essence, the gravamen, of Mr Gallop’s claim rather than the generic nature of an indirect discrimination claim. PCP Recuperative Duties no more than 12 weeks

[230]There was a PCP that employees should not be on recuperative duties or a phased return to work be for not more than 12 weeks, but that time limit was capable of extension by HR in exceptional circumstances, (page 1767) Appendix B to the Sickness Absence Management Policy.

[231]The PCP did put disabled people and Mr Gallop at a disadvantage, in that disabled people would be and Mr Gallop was more likely to be absent from work and in need of a phased return to work on recuperative duties and more likely to be reliant upon establishing exceptional circumstances and the discretion of an HR advisor.

[232]Did the Respondent take such steps as were reasonable to ameliorate the disadvantage?

[233]An adjustment could have put in place for his return to work on 20 April 2022, a return to work plan that would enable him to begin on 2 hours every other day for a month, thereafter gradually increasing his hours and number of days over a flexible period of no more than 6 months, with arrangements in place to pay him in accordance with the hours that he was working, by agreement, with a regular review of how that was impacting on his team. Broadly an adjustment along lines of what Mr Gallop was suggesting. The Respondent would have needed to be prepared to review Mr Gallop’s contractual hours and flexible working if he reached a level of hours beyond which he would not be able to work.

[234]Would it have been reasonable to take those steps? They were in line with the medical advice the Respondent had received, (see above). Miss Wright thought the 2 hours flexible approach was doable, she was prepared to try it. We were not actually presented with any evidence that it was not feasible. There is a chance that the adjustment would not have worked, would not have led to a sustained return to work, but it would have been reasonable for the Respondent to have given it a try. We conclude that it would have been reasonable for the Respondent to have taken those steps in April 2022. This allegation succeeds. The PCP of Requiring Employees to Work from the Office

[235]There was such a PCP, which the Respondent accepted placed Mr Gallop at a disadvantage, (paragraph 116 of the Grounds of Resistance).

[236]The adjustment contended for was to allow Mr Gallop to work from home, at least some of the time.

[237]Would it have been reasonable to allow Mr Gallop to work from home some of the time? The difficulties with shortages of IT equipment due to Covid was easing, Mr Broome said as such in his grievance outcome report, (page 1120). Mr Broome’s finding was that the Respondent should have acceded to Mr Gallop’s request in June 2022. We find that the Respondent could have incorporated working from home as part of its return to work plan in April 2022 on its own initiative. It would have been reasonable for them to have done so, to have given it a try, albeit that there was a chance, as with the 2 hours a day, that it may not have achieved a sustained return to work. This allegation succeeds. PCP of the Respondent’s Capability (Attendance and Performance) Policy

[238]The Capability Policy is of itself, not a PCP, but the applications of its various provisions are. The complaint is of delay. A one off delay in the implementation of a policy is not a PCP; it is a one off incident that happened to Mr Gallop and not something that is a barrier to his employment that could be removed to facilitate his return to work.

[239]In his submission, C disavows the proposed adjustments set out at paragraph 53 of the list of issues, which he says were introduced by the Harassment – s26 of the EQA 2010 Creating an environment of inevitable failure

[240]We agree that the Respondent imposed unrealistic return to work plans and attendance triggers in the face of the medical advice it had and what Mr Gallop was saying to them, which created for him, the proscribed environment. Setting him targets that were unrealistic when steps could have been taken to give him a reasonable chance or returning to work successfully, reasonably to Mr Gallop in the circumstances, seemed hostile, degrading and humiliating. We accept that was not the purpose of the Respondent’s actions, but from Mr Gallop’s reasonable perspective, it had that effect. This allegation succeeds. Repeatedly asking for and not following, medical guidance and asking the Claimant to suggest reasonable adjustments

[241]It is not unreasonable, it is to be expected, that an employer will ask a disable employee to suggest adjustments. That is not harassment.

[242]It is usual practice and it is to be expected, that an employer will take the lead on obtaining medical advice on possible adjustments, that is what Occupational Health is for. It is to be expected that an employer will seek Occupational Health advice and it is to be expected that Occupational Health will, where appropriate, in turn go to medical specialists for advice and report back to the employer thereafter. It is odd the way things were done here; the Respondent and the Occupational Health advisor expecting Mr Gallop to obtain the specialist advice on adjustments. Mr Gallop told the Respondent that his NHS ME/CFS Specialist Occupational Therapist was expecting to liaise with the Respondent and in their letters, invited contact if there were queries. Neither the Respondent nor its OH advisor, contacted them.

[243]The pressure place on Mr Gallop to come up with the ideas and chase his medical advisors for what the Respondent wanted, having regard to his illness, created for him an intimidating and hostile environment. That was not the Respondent’s intent, but it was the effect. This allegation Denying wife’s as a companion

[244]Rather like the refusal to rearrange the Stage 3 hearing to a date convenient to Mr Gallop, we found ourselves puzzled as to why the Respondent would take such an unreasonable stance over Mr Gallop being accompanied by his wife at the grievance and grievance appeal meeting?

[245]It is usual employee relations practice to limit companions to work colleagues and trade union representatives for a number of good reasons, including that friends and family can be disruptive. But it is also good employee relations practice and often, a reasonable adjustment, to allow employees with mental health issues to be accompanied by people they know well and trust, who will help set them at their ease, such as friends and family. We do not understand why the Respondent did not do that here, its refusal did not have the purpose of, but it did have the effect of, creating an intimidating and hostile environment for Mr Gallop. This allegation succeeds. Setting unreasonable targets

[246]We have already dealt with this above under the heading of inevitable failure. Repeatedly emphasising missing one appointment demonstrated lack of responsibility

[247]As we have noted above, the issue raised by Mr Gray, (page 1846) was Mr Gallop not rearranging his appointment, not missing it. Mr Gallop submitted that Miss Wright and Mrs Johnson kept coming back to it, but we do not see where that is. They did not constantly go on about Mr Gallop missing an appointment. This allegation is not upheld. Failing to respond to Mr Gallop’s email of 19 April 2022

[248]The email was a cry for help. It was addressed to not only Miss Wright, but also Mrs Johnson in HR and Mr Gray. Miss Wright told us she was off work at the time, she says he did not mention the email to Mr Gallop when they subsequently met, but acknowledged that there should have been a reply. We would have expected HR to respond, as Ms Johnson accepted. Not responding to comments such as for example the suggestion that he was being bullied, contributing to the hostile environment in which Mr Gallop reasonably felt he was working. We accept that was not the Respondent’s intention, but it was the effect. This allegation succeeds. Respondent asserting it has done nothing wrong to contribute to Mr Gallop’s ill health

[249]The grievance outcome did include a finding that the Respondent had done nothing wrong to contribute to Mr Gallop’s ill health. Whether the Respondent’s actions contributed to his mental ill health is a matter of medical evidence. In itself, denying that it had done so cannot be said reasonably in the mind of Mr Gallop, to create the proscribed environment. It was not the Respondent’s intention to do so either. This allegation does not succeed. Misreading and misrepresenting the advice of the ME/CFS Service

[250]In his closing submissions, Mr Gallop refers to the conclusions of Mr Broom in the grievance outcome at page 11186. His points are well made. The ME/CFS clinic advice was not to start on 3 hours a day, but on smaller than the 3 hours a day Mr Gallop had said he had in mind, (page 809). That was not a change of advice as Mr Broom suggested. The plan put in place was manifestly different from the advice, as discussed above, contrary to Mr Broom’s conclusion at page 1118. These errors contributed Mr Gallop’s reasonable perception that he was working in a hostile environment. We accept that was not the intention. The Claimant would not accept any decision that did not align exactly with the medical advice

[251]That was Mr Broom’s conclusion in the grievance outcome, page 1118. Why write that? There was no need. Mr Gallop had tried to follow the Respondent’s recuperative plans, notwithstanding that they were contrary to the medical advice. There is hostility in the remark, it contributed to Mr Gallop’s reasonable perception of the hostile atmosphere. We accept that was not the intention. Alleging that the Claimant would not accept any plan that was not on full pay

[252]The Respondent incorrectly did make that assertion on a number of occasions, including in the appeal outcome letter at page 2202. The Claimant a number of times made it clear that he was prepared to accept a reduction in pay a number of times, as noted in our findings of fact. These assertions reasonably in the mind of Mr Gallop, contributed to the proscribed atmosphere, albeit unintentionally. Harassment claim succeeds

[253]In so far as the allegations have been upheld, they each relate to Mr Gallop’s disability as they relate to the consequences of his disability and his efforts to return to work. In each instance, we have found that the treatment complained of reasonably in the perception of Mr Gallop, (but not intentionally on the part of the Respondent) created the proscribed environment. This allegation succeeds. Indirect Discrimination s19 EQA 2010 PCP of requiring levels of attendance

[254]There is such a PCP and it does place disabled people at a disadvantage because they are more likely not to be able to maintain the required levels of attendance. However, it is uncontroversial to state that maintaining levels of attendance is a legitimate aim of employers and it is proportionate to seek to achieve that aim by adopting a policy that has within it, provision for making reasonable adjustments, such as that adopted by the

[255]This is an excellent indication of the difference between reasonable adjustments, which take into account the individual circumstances of the claimant and indirect discrimination, which is about the general application of a PCP to the workforce as a whole. This is why, as here, in cases of disability discrimination, reasonable adjustments is usually the appropriate head of claim rather than indirect discrimination. PCP of requiring compliance with a return to work plan

[256]The Respondent has such a PCP. It does not necessarily put disabled people at a disadvantage, because it depends in each case, on what the return to work plan is. The circumstances of individuals is appropriate for consideration as a potential reasonable adjustments claim, not indirect discrimination. The PCP of standard absence triggers

[257]There is such a PCP, which does put disabled people at a disadvantage, but as with the absence management policy as a whole discussed above, it has the legitimate aim of managing absence and is proportionate as the policy contains provision for adjustment to those triggers.

[258]In Mr Gallop’s case, the triggers were oddly, adjusted so as to be more, not less, stringent. However, that is a one off act, not a PCP. The PCP of recuperative duties being limited to 12 weeks

[259]There is such a PCP. The same problems arise as with the forgoing: it does put disabled people at a disadvantage because they are less likely to be able to achieve a return to work in 12 weeks, but there is provision for adjustment. The aim of managing absence is legitimate, the means adopted proportionate, in terms of application generally. In so far as that may not have been so for Mr Gallop, that is a matter of reasonable adjustments. The PCP of requiring an initial return to work to be for at least 4 hours

[260]The Respondent did have such a PCP, it is set out paragraph 4.12 of the 2014 Sickness Management policy at 1341. It is unclear whether that policy was current at the time of Mr Gallop’s employment, because we were also referred to the Respondent’s 2020 Sickness Absence Management Policy starting at page 1753, which does not seem to replicate this provision. However, the 2014 policy seems to have been the source of a practice adopted of requiring at least 4 hours a day, a view that any less then employee is not fit for work. The Trade Union representative referred to such a policy, (page 690). However, there remained as a matter of policy, flexibility. The 2014 policy said that a minimum of 4 hours a day was, “usually” required, allowing for flexibility and there is reference to allowing exceptions. Once again, we have a policy that does place disabled people at a disadvantage, but which is pursuant to a legitimate aim of managing absence, by proportionate means, because flexibility is permitted. On an individual basis, the application of that flexibility or not, is a question of reasonable adjustments, not indirect discrimination. The PCP of requiring and employee to use leave in order to return to work on less than 5 days a week

[261]There was no such PCP. This was an option open to Mr Gallop, but it was not something that he had to do and it was not something that was of general application to everyone. The PCP of not applying its Capability (Attendance and Performance) policy to the Claimant in not rescheduling the Stage 3 hearing

[262]This is not a PCP. It is a complaint about an individual, one off, act. The PCP of considering historic absence in making a decision to dismiss at Stage 3

[263]There is such a policy. It does place disabled people at a disadvantage, in that such people are likely to have a lengthy history of absences. It is pursuant to the legitimate aim of managing absence and is a proportionate means of doing so, it is plainly relevant that in decision making in relation to dismissal, the absence history of any particular individual should be taken into account. How that is applied in any individual case, is a matter of reasonable adjustments, not indirect discrimination. Indirect discrimination claims fail

[264]The complaint of indirect discrimination fails. Time

[265]Early conciliation was between 19 April and 25 May 2023. The claim form was submitted on 1 July 2023. Anything which happened before 26 February 2023 is potentially out of time. Mr Gallop was dismissed on 31 August 2023, notice expiring on 27 September 2023. The last act of discrimination complained of was the Dismissal Appeal outcome on 11 January 2024. He was refused leave to amend his claim to include unfair dismissal, but was granted leave to amend to include those elements of his claim that postdate the issue of these proceedings.

[266]The last act of discrimination as found by the tribunal, was the Respondent’s failure to uphold Mr Gallop’s appeal against dismissal on 27 November 2023. There was in our view from 23 February 2022 through to the dismissal appeal outcome, a prevailing culture or mindset of those dealing with him on behalf of the Respondent, of impatience and irritation. There was a sense of the view being taken that he had been accommodated once, it was unreasonable to be expected to do so again. There was in our view, a continuing act extending over this period of time. Remedy Hearing

[267]This case has been listed for a Remedy Hearing on 11 and 12 May 2026, without consulting the parties as to dates of availability. If these dates are inconvenient to either party in any important way, any applications for a postponement and re-listing must be made within 14 days of this Reserved Judgment being sent to the parties.

[268]The hearing that has led to this Judgment was to have included remedy if time permitted. No further case management orders as to remedy ought therefore to be necessary. If either party considers that further case management orders are necessary, they should liaise with the other party and seek to agree such orders. Any application for case management orders should be made within 21 days of this Reserved Judgment being quote the case number and be marked for the urgent attention of EJ M Warren in the subject heading.

[269]The tribunal would like to express a note of caution for Mr Gallop. He should not regard his success as a necessary pre-curser to a significant award of compensation. We have looked at his Schedule of Loss at page 137a and make the following preliminary observations, subject to submissions: 269.1. The tribunal’s task in awarding compensation for discrimination, is to place the claimant so far as is possible, in the same position he would have been in, had he not been discriminated against. In this case, if Mr Gallop had not been discriminated against, the respondent would in April 2022 have facilitated his flexible return to work, with home working, 2 hours a day every other day, for a limited period of time. They would have allowed him a reasonable period of time to gradually get up to full time hours or such hours as he would be capable of maintaining. There is a good deal of evidence to suggest that even had they done so, there is a significant percentage chance that his return to work would not have been successful and the Respondent would have proceeded through its absence management process to dismissal, perhaps even quicker than it in fact did. That percentage chance will have to be reflected in any award of compensation. 269.2. Mr Gallop says that his health continues to prevent him from seeking employment. If that is the case, then even of he had not been discriminated against, it seems likely that his employment with the Respondent would not have continued and he would not have been able to work elsewhere and therefore, he has no continuing loss. 269.3. If Mr Gallop wishes to argue that his health only continues to prevent his working, because of the discrimination to which he has been subjected, he will have to prove it. Simply asserting that is so will not suffice. He will need credible medical evidence in the form of a formal report from an expert who has had sight of this Judgment and his medical records, to the effect that on the balance of probabilities the Respondents discrimination exacerbated his illness to the extent that he has been unable to work, for what period thus far and for what likely period in the future. If he decides to seek such a medical report, he must liaise with the Respondent to jointly instruct a medical expert and it may be that as a consequence, the remedy hearing in May will have to be postponed. 269.4. Mr Gallop can argue his case that the time frames of the Respondent’s actions in terms of their processes amount to a breach of the ACAS code, but it is very unlikely that any award in that respect would approach a 25% uplift, which is usually achievable only in the most egregious of cases.

[270]Mr Gallop would be wise to bear the above in mind, should the Respondent put to him any proposals for settlement. Approved by: