Ms D Jones v Department of Work and Pensions: 3309480/2023
EMPLOYMENT TRIBUNALS
Case No 3309480/2023
Between
Ms D JonesClaimantDepartment of Work and PensionsRespondent
Before
Employment Judge TruscottMr G Price-Rowlands (instructed by barrister) for claimantMr J Duffy (instructed by barrister) for respondentDate 14 March 2025
JUDGMENT
[1]The claim of unfair dismissal brought under Part X of the Employment Rights Act 1996 is well founded and the claimant was unfairly dismissed.[2]The claim of direct discrimination brought under section 13 of the Equality Act is dismissed on withdrawal by the claimant.[3]The claim of discrimination in relation to disability contrary to section 15 of the Equality Act is well founded.[4]The claim of failure to make reasonable adjustments contrary to section 20 of the Equality Act is not well founded and is dismissed.[5]The respondent is ordered to pay the claimant compensation of £24,236.34.[6]The claim of unauthorised deduction of wages/breach of contract is dismissed on withdrawal by the claimant.
REASONS
[1]The claimant’s original claims were:(a) Unfair dismissal(b) Direct disability discrimination(c) Discrimination arising from disability(d) Breach of duty to make reasonable adjustments(e) Unauthorised deduction of wages / breach of contract[2]In addition to pulmonary embolisms, the claimant relied on the following disabilities: i. Shoulder Injury 2016 - disclosed to the respondent around November 2017. ii. Postural Orthostatic Tachycardia Syndrome (POTS) caused by covid - diagnosed February 2021 when admitted to hospital and disclosed to the respondent around the same time. iii. Long Covid Syndrome - diagnosed approximately June 2021, disclosed to the respondent around the same time.[3]The claimant gave evidence on her own behalf and was represented by Mr G Price-Rowlands, barrister. She led the evidence of Ms S Mauthoor, her trade union representative and Ms P Reid, her notetaker. The respondent was represented by Mr J Duffy barrister, who led the evidence of Ms H O’Sullivan, manager, Ms I Conteh, a team leader on temporary promotion, Ms D Haste. Manager, Ms J Stevens, SEO-level manager and Ms G Cooper-Patel, Grade 7 level Operational Manager.[4]There was a main volume of documents running to 1257 pages and a supplementary bundle running to 10 pages, an additional volume containing the claimant’s impact statement and medical records was lodged during the hearing, to all of which reference will be made where necessary. The medical records seemed of little relevance and a further bundle of medical records for 2021-2023 was lodged in 10 files, these are marked M1-10 which will also be referred to where necessary. The numbering in the judgment refers to the pages in the electronic bundle except where otherwise stated. On 1 November 2024, the respondent provided the Absence Management Procedure which was applicable at the time of the claimant’s employment in place of that in the bundle at pages [395-414]. The judgment refers to the procedure in the numbered bundle as there were no material differences for the purposes of this case with the exception of paragraph 54 in the 2024 version and paragraph 51 which was current at the time which reads: 51. An occupational health case conference might be helpful in deciding how a long-term absence should be managed. Once an absence reaches 3 months, the manager must arrange a case conference with occupational health – this is mandatory. [A manager must ensure the employee is aware a case conference is taking place and gain written consent via email before the case conference is held.] The purpose of an occupational health case conference is to consider what more can be done to help the employee return to work within a reasonable timescale and where a return is unforeseeable decide how to bring the case to a conclusion. Employee consent is not required for these case conferences as management of the long term absence is being discussed in general terms only. Managers may wish to seek CSHR Casework advice following, and/or prior to the case conference, but it would only be by exception where a CSHR Caseworker would attend the case conference.[5]The claimant prepared a chronology [103] which was agreed by the respondent.[6]The sum claimed in respect of the claim of unauthorised deduction of wages / breach of contract was agreed during the 2024 hearing. Payment was made in the respondent’s February 2025 salary run and the claim was withdrawn by the claimant.[7]On the first day of the 2025 hearing, the claimant withdrew her direct disability discrimination claim.[8]In order to address remedy, in the course of the 2025 hearing, the claimant lodged an updated schedule of loss which although titled October 2024 takes matters into 2025, together with an additional statement to address remedy and additional documents in support titled Job Search Information and Additional Job Search Information. An error was identified in the Schedule of Loss and parties agreed that the net annual pay was £18,119.45 giving a weekly net loss of £348.45.[9]A list of issues was set out in the Case Management Order dated 26 March 2024 [82-88]. At certain points of these issues, it is said to be for the claimant to select which disability she relies upon. The parties agreed that this approach was not appropriate as the bases of the claimant’s disability were all present at the same time and had a cumulative impact. At the conclusion of the hearing but prior to submissions, counsel agreed that it would be appropriate for the Tribunal to address more focussed issues based on an understanding of the case as it now stood. These were: Issue 1 Are any of the Which of the impugned acts or omissions claims out of occurred before 27 February 2023 (and did not time? continue beyond that date)? Of those, should time be extended in relation to any of them on the ‘just and equitable’ basis? Issue 2 Was C’s Did the Respondent act reasonably in all the dismissal circumstances in treating capability as a unfair? sufficient reason to dismiss the Claimant? Issue 3 Was there a(a) Did the Respondent have either of the failure to following PCPs: (i) a requirement that make employees undertake their full duties of reasonable their substantive role and/or maintain a adjustments? specific level of attendance? (ii) a requirement that employees physically attend the office?(b) Did either place the Claimant at a substantive disadvantage compared to persons not sharing her disability in that: (i) the Claimant could not fulfil her full-time duties as required by the Respondent; (ii) she could not physically attend the office; (ii) Her pay was reduced to half pay then nil pay; (iii) she was subjected to a capability procedure; (iv) she was dismissed?(c) Did the Respondent know, or could it reasonably have been expected to know, that the Claimant was likely to be placed at that disadvantage?(d) What if any steps could have been taken to avoid the disadvantage? The Claimant suggests that the Respondent should have done four things: (i) referred her to the DWP’s clinic; (ii) adjusted the attendance level required; (iii) permitted the Claimant to work from home; and (iv) followed advice from CSHR and OH.(e) Was it reasonable for the Respondent to have taken those steps, and if so when?(f) Did the Respondent fail to take those steps? Issue 4 Was there (a) Did the Respondent treat the Claimant discrimination unfavourably by (i) dismissing her and/or arising from a (ii) not referring her to the DWP’s clinic disability? from 16 December 2021? (b) If so, was the reason for that unfavourable treatment something arising from her disability? (c) If so, was it a proportionate means of achieving a legitimate aim? The Respondent relies on the following legitimate aim: Managing the workforce to maintain the provision of a quality service to the standard required. Issue 5 To what if any remedy is C entitled?
FINDINGS of FACT
[1]The claimant commenced employment as a Work Coach with the respondent on 20 August 2012. During the recruitment process, she disclosed that in 1997, she was diagnosed with pulmonary embolisms (blood clots in the lungs). She was required to have an Occupational Health (OH) assessment prior to being offered employment. She told the practitioner that she was prescribed daily medication, warfarin and additional blood thinning injections which she self-administered when her blood level became unsafe. After using a portable machine, she communicated with the UCL Hospital Nurse Specialist, providing the results of her blood tests, in order to receive advice about how many milligrams of warfarin she was required to take and whether she also needed an injection. The practitioner assessed her condition as stable at that time.[2]She worked part time, 32.5 hours over 5 days, working Monday to Friday, finishing at 4pm Monday Wednesday and Thursday and 2.30pm Tuesdays and 3.00pm on Fridays, starting at 8.30am daily.[3]She worked as a Jobseekers Allowance (JSA) Work Coach until 20 March 2020. She was committed to her work and to her customers throughout, mainly working with the long term unemployed ranging from 4 – 25 years unemployed and customers with health conditions/ disabilities, supporting them into sustainable work.[4]Between 9 November 2017 and 31 December 2020, she had a total of 9 days sick over a period of 3 years and between 20 August 2012 and 17 April 2016, she had a total of 2 days off sick.[5]On 18 March 2020, prior to the first Covid lockdown, she met with her line manager Nikki Abel Opurum and Hasan Ozbeyhun, the Customer Service Leader (Senior Manager) to discuss the Government guidance issued days before which said that individuals with certain health conditions should remain at home with immediate effect, for the next 12 weeks, due to vulnerabilities to the coronavirus. The claimant offered to work from home, however, at that time, it was not a practical option for the respondent. During the meeting, she agreed that she would remain at work until Friday 20 March 2020, provided she did not expose herself to seeing any customers face to face.[6]In June 2020, the claimant was provided with a laptop by the respondent and shortly afterwards her equipment was brought from the office to her home. She was informed that JSA claims would be dealt with in a central location and that members of the JSA team would be transferred to the Universal Credit benefit.[7]She continued working from June to December 2020 from home, she moved from conducting welfare checks on customers to having to manage a full caseload of over two hundred customers.[8]After Christmas 2020, she began to feel unwell over a few days then deteriorated suddenly. She received a positive result of a second Covid test on 4 January 2021 which was her first day of absence from work. She contacted her line manager by phone, email and provided her with a copy of the test results and first fit note [135-140].[9]On 1 February 2021, the claimant received a call from Ms Mae Jamil advising that she was her new line manager. The claimant she raised a query regarding how her covid illness would be recorded, as some new guidance had been issued. The Civil Service Human Resources (CSHR) was contacted by Ms Jamil for advice [final 2 lines 1024].[10]On 4 February 2021, she was seen by her GP, Dr Kandasamy, who was concerned that she might be suffering a clot and sent her to North Middlesex Hospital, where she was admitted. On 5 February 2021, Ms Jamil raised the possibility of her contacting the claimant on 8 February, “just for quick catch up and to brief you on the meeting we will be having over the phone 15/2/21” [223] The claimant replied by informing her that she had been admitted to hospital [142].[11]Ms Jamil contacted the claimant, asking how she was, she advised that she had been discharged from hospital and had been diagnosed with Postural Tachycardia Syndrome (POTS) caused by the coronavirus. Ms Jamil said that she wished to have a conversation by phone the next week “Just an informal conversation and to explain a few things regarding going forward with your sick leave” [145-147 at 146]. A meeting was agreed for 5 March 2021 at 11:00 am [150].[12]The claimant attended the 28 day absence meeting on 5 March 2021. The claimant did not receive an Outcome letter.[13]Following the meeting, she was not provided with a copy of the notes in line with the respondent’s usual practice of issuing notes or minutes within 5 working days, the notes were received in March 2022, the following year, as part of a bundle of ten meeting notes all at once.[14]Weekly keeping in touch emails were requested by Ms Jamil, however none of the updates were noted on the keeping in touch stencil, despite weekly contact from this point, the first entry on the stencil was noted on the 18 August 2021 [54-55].[15]The next meeting took place on 9 April 2021 when Ms Jamil said that she would send a PAM Occupational Health Service consent form, for the claimant to complete and return. PAM Occupational Health Service is the respondent’s occupational health provider. No details of the discussion were recorded. No outcome letter was received following the meeting.[16]The claimant attended the OH appointment on 22 April 2021. The report states [172] that she reported that she was extremely breathless. Any exertion “increase[d] her heartrate, tachycardia”. Her heartrate would soar on exertion. At that time, she was awaiting a cardiology appointment. Her voice was very quiet and hoarse. It was noted that there had been little improvement in the claimant’s symptoms and that she remained unfit for work. A timescale for her recovery was unclear, and the report stated that there were “no adjustments or modifications you could implement that would alleviate her condition or aid her rehabilitation at this time”. The report records that the claimant was unable to carry out any of her substantive duties.[17]A wellbeing review meeting on 4 May 2021 was notified to the claimant by email on 9 April [159], when the claimant’s prospects of returning to work were discussed. She received no invitation letter and no outcome letter following the meeting. A copy of the meeting note was received in March 2022 [175].[18]The next telephone wellbeing review meeting was scheduled for 4 June 2021 at 10.30am but did not take place as the claimant was unable to get union representation due to the short notice. The meeting was rescheduled for 10 June 2021. The meeting proceeded with Ms Jamil and Raymond Mordi PCS Representative took notes [205-208]. During the meeting, the claimant informed Ms Jamil that she had been diagnosed with Long Covid and had been referred to the NHS Long Covid clinic and was waiting for an appointment. Following the meeting, she did not receive a copy of the respondent’s notes or the outcome letter.[19]A wellbeing review meeting was conducted by Ms Jamil on 1 July 2021 [214]. A copy of the note was not provided within 5 working days, it was seen by the claimant for the first time in the batch on March 2022.[20]On the 6 July 2021, the claimant received an email from Ms Jamil with two attachments informing her that she would be going onto half pay with effect from 4 August 2021 and an invitation letter advising her that the next meeting was scheduled for 6 August 2021 [215 217-219]. Although the claimant and her representative logged in, the respondent did not attend the meeting and did not make contact.[21]On 18 August 2021, the claimant received a call from Ms Hannah O’Sullivan who had taken over as her new line manager the previous day. The claimant told her that she had attended the last meeting, however no one else turned up, Ms O’Sullivan apologized. She made a note on the keeping in touch stencil and agreed to send a letter regarding the next 28-day review which was scheduled for 31 August 2021 [253].[22]The meeting went ahead on 31 August 2021, Ms O’Sullivan was in attendance with Zeph Shaw as note taker and the claimant. The claimant was unable to contact her representative to assist her at the meeting. The claimant explained that she was still getting heart palpitations and a return to work was not feasible [255-256]. Ms O’Sullivan assured the claimant that her absence was being supported and the respondent was not taking any action. They also agreed to keep in touch fortnightly in order that the respondent might be made aware of any changes to her health condition and if there is anything which can be done to help her come back to work. Following the meeting, the claimant did not receive an outcome letter or a copy of the notes within 5 working days. She received the meeting note in March 2022 as part of the bundle of ten. The next review meeting was scheduled for 30 September 2021 at 15.00pm [257-8], a confirmatory letter was received dated 13 September 2021.[23]On 30 September 2021, the claimant logged onto the IT system and noticed that she had not received an electronic invitation to the meeting that afternoon, so she emailed Ms O’Sullivan at 14.24pm, prior to the meeting scheduled for 15.00pm. She received no reply, however she remained online waiting for contact, for in excess of an hour.[24]On 1 October 2021, the claimant emailed Ms O’Sullivan [262] who replied by apologizing and said that the event was removed from her diary and that she had sent a letter out the previous week advising that the meeting would be on 5 October 2021. She also gave her the option of calling her that day if she preferred. The claimant told Ms O’Sullivan that she had not received a letter notifying her that the appointment had been rescheduled and agreed to attend the meeting on the new date.[25]On 5 October 2021, the meeting took place with Ms O’Sullivan who was accompanied by Zeph Shaw as the note taker [267-268]. Ms O’Sullivan said that she was unable to find a private room where she could log onto the IT System. After some discussion, Ms O’Sullivan asked if the meeting could go ahead using her phone. The claimant agreed and thought the call was put on loudspeaker in order for the note taker to hear. During the meeting, the claimant explained that she was still having heart palpitations and was due to have an appointment with a specialist for a scan on her heart. At the end of the meeting, as she did during each meeting, Ms O’Sullivan told the claimant that they were continuing to support her absence. She did not want the claimant to worry about her absence. Following the meeting, the claimant did not receive an outcome letter or a copy of the notes within 5 working days.[26]On 2 November 2021, Ms O’Sullivan again met the claimant when she provided a further update on her health and said that it was not feasible for her to return to work [270-271]. Ms O’Sullivan said that she wanted to refer the claimant to OH for further support. The claimant did not refuse this referral and said that she had one already, but that was from April 2021. Ms O’Sullivan preferred to have an up to date OH report.[27]On 15 November 2021, Ms O’Sullivan contacted Civil Service Human Resources (CSHR) asking for advice on next steps [1028], the CSHR note reads: “We discussed the details of the case and I advised that long covid cases must be treated with sensitivity. At present, the current fit note provides some insight of when the MoS may return to work. It may be unlikely that a decision maker would decide to dismiss in this case as a return to work has been identified. An Occupation Health report might be able to provide more information of a possible return date and any reasonable adjustments that may need to be put in place. However, at present the MoS is declining this. Pam assist are offering additional services for those suffering from long covid. Long and Post Covid Syndrome Case-Managed Service | DWP Internet.”[28]On 19 November 2021, Ms O’Sullivan referred the claimant to OH and the claimant received a text message from PAM Occupational Health [596] advising that an Occupational Health appointment had been arranged for 16 December 2021.[29]On 3 December 2021, a meeting took place with Ms O’Sullivan [293-294 and 295-297] at which the claimant asked [300]: “what I wanted to know in terms of long covid is there any particular guidance for long covid or is this standard procedure you’re following in terms of my absence”. Ms O’Sullivan replied: “currently I do not think there is any particular guidance or policy for long term covid, however I have consulted HR to ensure I am doing the right thing for you, and I have been told that supporting your absence at this stage and conducting 28 day reviews is the right thing.”[30]On 16 December 2021, the claimant attended the OH consultation by telephone [302-316]. Early on in the call, the assessor asked her if she had signed a consent for that consultation. The claimant had not been asked to provide written consent but gave verbal consent to allow the consultation to continue. The OH professional, Moira Paton, noted that the claimant was breathless and that this had become more obvious towards the end of the call. The claimant explained to Ms Paton that her symptoms were more or less the same as they had been in the previous April 2021 assessment. There was a new problem – pain in her joints. She was made aware during the call that the DWP was providing additional support in connection with Long Covid, and relevant information would be included in the report. The report states [306]: “Early Access to treatment required: To request referral to long covid clinic”. Under the heading Management Advice [317], it states: “… remains unfit for work in any capacity at present, & timescales for recovery are unclear. Prognosis is dependent upon her response to intervention and rehabilitation progress… There are no adjustments or restrictions that I could suggest at this time which would facilitate or even expedite a return to work, due to the severity of her symptoms. The effect her condition is likely to have on her ability to carry out her duties is also unknown at this time. Doreen has been referred to the NHS Long Covid Clinic, however has not received an appointment yet, you may wish to consider a referral to the Long Covid Management Clinic to support Doreen. I am unable to advise on a possible return to work at this time. I leave it to you as the manager to decide if these recommendations are feasible for the business to support.”[31]A post consultation briefing [302] was requested by Ms O’Sullivan, and the following was noted (typographical errors included): “Details: Hannah O’Sullivan Post: Nit fit to return to work continues to have ongoing investigations and continues ieht symptoms. Asked when she will be fit to return to work, advised as still being investigated I am unable to gaive a timescale. Very rude” (copied as typed on document). The reference to “very rude” is understood to apply to Ms O’Sullivan.[32]The nature of the DWP’s long covid service is described in a document beginning at [1160]: “Returning to work, and remaining at work, are an effective part of rehabilitation from many illnesses and the Case-Managed Service aims to facilitate this by assessing the employee’s general health, their fitness and psychological health. The goal is to provide support and intervention based on need, so as to aid recovery, with a case manager overseeing progress and collating all outcomes. The case manager will also provide appropriate advice and guidance in a written report to managers. DWP is providing this service to provide the best possible support to colleagues during the COVID-19 pandemic, and in recognition of the current demands on NHS services.” [1161][33]The service involved an initial assessment and a report to a manager, which might include signposting the employee to appropriate services, like a musculoskeletal service, a psychotherapist or a wellness coach, or the employee’s GP. There might then be a follow-up telephone conversation with the OH clinician, and a final assessment at the 10-week point, leading to work-focused advice [1162]: “At the end of the 6 sessions; or at any time during the program; if significant concerns arise or recovery is not as expected, then onward signposting to the NHS will be recommended.”[34]Meeting notes dated 3 January 2022 [322-327] are included in the bundle, however there was no meeting on that date. The notes at pages 322-327 are incorrectly dated – they are the notes from 3 March 2022 taken by Ms O’Sullivan as they match the notes at pages 359-368 taken by Pam Reid.[35]The next meeting was on 7 January 2022 [290]. The meeting notes [330-331] say that Ms O’Sullivan attended with Mariam Ghanti as the note taker with the claimant. During the meeting, the claimant said that she felt mostly the same but had some improvement with her hoarseness and breathlessness. Ms O’Sullivan said she would send the OH report of 16 December 2021 to the claimant and that if she had any concerns, she would be happy to have a meeting with her to discuss. Ms O’Sullivan also asked whether the claimant had received a letter a few days ago regarding pay. The claimant said that she had received a letter that day, but there was no signature, so she did not know who it was from [321], the letter advised that with effect from 26 January 2022, she would be unpaid. Ms O’Sullivan acknowledged the letter had been sent by her and apologized for not signing it, then continued to tell her the following: “...on the 26th January 2022 you will be on Nil pay, I want to make you aware of the options that are available to you I'm not sure if you're interested in the possibility of Medical retirement but it’s worth looking into this and thinking about as an option, also if you can foresee that this change in your pay could put you into financial difficulties there is also the Civil Service Charity foryoubyyou.com, you need to submit your bank statements and they can help out”[36]Following the meeting, a copy of the OH report and meeting notes were sent to the claimant [332]; however, no outcome letter was received within 5 working days or at all. A few days later, the claimant received a document regarding Ill health Retirement, which said that ill health retirement should be a last resort, the member of staff needs to have suffered a permanent breakdown in health and by which time they should have had a complete diagnosis.[37]On 3 February 2022, the respondent contacted CSHR again for advice [1036].[38]There was a meeting on 3 March 2022, with Pam Reid as note taker and Shaheena Mauthoor as the claimant’s union representative [359-368]. The claimant explained that there had been some improvements to her breathing while sitting but not sufficiently for a return to work. She also said that she had been given a date for her first appointment to the NHS long covid clinic. The claimant did not mention the PAM assist long covid clinic, although the OH assessor had made her aware of it [1143]. The claimant raised the previous OH referral and Ms O’Sullivan explained that because her condition was changing throughout her absence, she needed up to date OH reports. It was not reasonable or sensible to wait for a return to work as there could have been something that the respondent could have supported her with beforehand. The claimant said that she should have completed the consent form and Ms O’Sullivan apologized for not sending it. Ms O’Sullivan also let the claimant know that there had been a lot of changes and that she would be leaving Palmers Green, which would mean that she would have a new line manager, Ms Iyesha Conteh. Ms O’Sullivan assured the claimant that she would do a handover with Ms Conteh. The claimant again challenged the OH referral, but Ms O’Sullivan asked to adjourn the meeting so she could investigate as she could not remember what had occurred. At the end of the meeting, the claimant said that she had been very unhappy with Ms O’Sullivan’s line management, saying that she had caused her more harm than when she was on life support. Ms O’Sullivan was in tears.[39]Following the meeting on 3 March 2022, the claimant received a letterContinuous Absence outcome of formal Health and Attendance Improvement Meeting (H and AIM) – dated 4 March 2022. The respondent noted: “You did not agree or disagree to be referred to Occupational Health and I explained that this means that decisions will be made without Occupational Health advice which may not be in your interest.”[40]Ms Conteh became the claimant’s line manager on 8 March 2022, after having a brief handover from Ms O’Sullivan. In the handover, Ms O’Sullivan explained that she had been following the attendance management process and set out the current position. Ms O’Sullivan also said that the claimant had specified who she wanted to be the independent note taker at meetings and there had been some issues with the notes. Ms Conteh looked at the attendance management procedure [1199-1123] and noticed that there was no template for an informal meeting. Ms Conteh wanted to have informal meetings with her staff first and did not want to have formal H&AIM meetings when meeting them for the first time.[41]On 8 March 2022, Ms Conteh texted the claimant to introduce herself and provide her contact information [382].[42]On 9 May 2022, the claimant had a meeting with Ms Conteh via Teams. Ms Conteh explained she was about to go on annual leave, but that if she needed to contact her, she gave her details. Ms Conteh wanted to know a bit more about the claimant so she started by asking her how long she had been in the department. She then said something along the lines of ‘I understand that you are currently sick, is there anything I can do as your line manager to support you’, however the claimant said that she did not want to talk about anything to do with her condition until they were in a meeting where it would be recorded. Ms Conteh said that she understood that, but she wanted to see what she could do for now, as she perceived that the claimant found it difficult to talk on the phone. Ms Conteh explained that she did not want to discuss her health conditions in detail, she wanted to know practical things, such as whether it was best to call in the morning or the afternoon. However, the claimant did not want to discuss anything to do with her condition, so Ms Conteh explained she could schedule in another meeting. She said that if she wanted it recorded, she could arrange for this and acknowledged that she had talked about her confidentiality being breached on a previous occasion. She reassured the claimant that she was in a room by herself, and that she was a new manager to Palmers Green. The claimant said that she wanted another meeting and Ms Conteh agreed to set up another meeting where they could have an informal discussion so that she could find out more about her and how to support her as her new manager. A meeting invitation followed for 31 May 2022. On 30 May, the meeting the following day was cancelled [392]. Ms Conteh apologized for the delay and explained it was due to a bereavement. On 8 June 2022, Ms Conteh wrote to the claimant to invite her to a H&AIM on 20 June [415]. The claimant raised concerns about Pam Reid not being available and suggested Rose Thorli. Ms Conteh replied saying that she would invite the PCS Representative, however she will be “providing the note taker and that would be Yasmine Curpen. Ms Mauthoor mailed Ms Conteh [418] regarding her rejecting Rose Thorli as the note taker and asked her to clarify the reasons and to share any policies / guidance that was being followed in relation to the note taker. Ms Conteh replied [418 (top)] on 14 June 2022, saying that: “as the host of the meeting and line manager, it is up to her discretion to select an appropriate notetaker. You are most welcome to review the guidance yourself which can be found on the intranet…. Please see full reply including comment about notetaker being impartial and all notes being available after the meeting.”[43]The email correspondence about a notetaker continued. There was then a gap in communications between 14 June and 8 August. The meeting scheduled for 20 June did not take place. On 9 August, Ms Conteh emailed the claimant [421] subject “New Line Manager” to advise that she had secured her promotion and: “did not want to conduct the meeting for me to have to explain my health condition to another person for them to leave and have to start the process again… your new line manager will be Dawn Haste.”[44]On 28 July 2022, the claimant’s GP offered her a referral to the Age UK long covid project [M2/4].[45]Ms Haste contacted the claimant by email [422-424] on 10 August. She also sent a Continued absence-invitation to a formal H and AIM on 18 August 2022. There followed an exchange of emails [443-433 (going backwards)] of trying to work out the practicalities of being supported by the PCS Representative and requesting that the meeting was re-scheduled to fit in with her existing commitments and requested that Pam Reid was added to the Teams invitation as the note taker. Ms Haste replied [437]: “I am being told that the person holding the meeting would organise the notetaker, and you can have 1 person in attendance of your choosing, which you have chosen your TU Rep. I have asked Ian ward to be our notetaker.” The email correspondence continued to 23 August 2022 [430] when Ms Haste wrote: “I hope this finds you well. In the interest of being able to book this meeting and not cause any further stress, insuring you are happy with the notetaker, I have added Pam into the meeting request as well as your TU rep. As meeting chair, I am able to add in an official notetaker of my choosing, whilst considering your previous feelings and to ensure complete confidentiality I have asked Maria, who is this sites SEO. I look forward to catching up with you next week Regards Dawn.”[46]The meeting proceeded on 30 August 2022 with Ms Dawn Haste, Ms Marie Theori (CSL), notetaker for the chair, Ms S Mauthoor PCS Representative and Pam Reid as the note taker requested by the claimant. The claimant asked for the minutes to be recorded “verbatim” and explained that meant notes to be made word for word. Ms Haste started by clarifying why there were two notetakers. Ms Haste said what she had done prior to the meeting: “I also want to let you know what I have done in preparation for this meeting. I have had a look at your fit notes, your previous OHS, so I can just see a little bit for warned about your medical conditions, so that I have a little bit of understanding about what you talk about today. I am not saying that I am medical, I am just saying that I have taken the time just to read up a little bit, so I can try a bit of catch up.” During the meeting of 30 August, the claimant raised a number of issues with procedure not being followed as set out in the Minutes. The claimant wanted Ms Haste to have some understanding of what had been happening and how she had been treated during the process, so far. She responded: “I am really sorry, I can’t comment on the past and the people, but I can say sorry that it hasn’t been handled in a way that it should have done…” Ms Haste asked some questions about the claimant’s health and returning to work and what would help? The claimant informed Ms Haste that she was now under the NHS long covid clinic. Through that clinic, she had been referred to the community occupational therapist and to a respiratory physiotherapist. She said that she wished to recover and return to work but she was unable to predict how soon she would be able to return. The meeting notes prepared by Maria Theori [464-466] and meeting notes prepared by Pam Reid [467-473] were provided to the claimant.[47]Ms Haste did not feel that the business was able to continue to support the claimant’s absence and that she would like to take advice on the appropriateness of a referral to a decision-maker to consider dismissal. Ms Haste contacted CSHR for advice on 23 September 2022 [478]. The response from CSHR was that it would be reasonable to refer the case to a decision-maker to consider dismissal. However, CSHR noted that the last OH advice had been in December 2021. This could not be relied upon; the respondent’s policy required any such decision to be based on OH advice from the previous three months.[48]The respondent submitted three separate OHS referrals, one dated 26 September 2022 [480-481], the reason for referral was that “Doreen has been continuously sick since 4 January 2021, she contracted Covid then developed long covid and has been off sick since. She also has another health condition called POTTS.” The second referral was on 27 September 2022, [482-483] the reason for referral was noted as “Doreen has been absent from work since January 2021 and does not seem likely to return to work any time soon. We need to see if there is any way she can return to work as the business cannot keep supporting absence.” The respondent submitted a third OHS referral [484-485], dated 27 September 2022, the reason for referral was: “Doreen has been absent from work for almost 2 years She initially got Covid, which then went to long covid. She is very breathless and states she is unable to return to work and does not see when she will return, I have been advised that she is required to have an updated referral on file as her last OHS was a year ago We just need to see your advice/recommendations, is there anything that could be recommended that could change her outcome to come into the office”.[49]On 28 September 2022, the respondent contacted the claimant [487] to inform her that the OHS appointment was arranged for 5 October 2022. She also said, “I also wanted to clarify if you have sent another fit note, I can't seem to find an up to date one?” The claimant responded advising that the last fit note should be still in date and that it had been sent to Ms Conteh [492]. On 3 October 2022, the respondent emailed the claimant advising that “she had found my fit note, which expires on the 11th of October” [490].[50]On 5 October 2022, the OHS appointment proceeded and the claimant received an email on 11 October 2022 [506], from Ms Haste, which said that “I have been asked to forward your case on to a Decision Maker, please find attached letter”. The Continuous absence outcome letter [507-8] and the email also had a copy of the recent OH report attached [499] which said: “I do not consider Doreen to be currently fit to work in any capacity due to her high level of symptoms and reduced mobility. A return to work date cannot be realistically predicated at the moment as it is subject to improvement in her symptoms and response to ongoing medical interventions. However, considering how severely she is currently [a]ffected, it is not likely to be within the next three months. I do not consider that the business can provide any adjustments or alternative roles at this time that would facilitate a return to work. From the information gathered today, a full recovery is expected and a period of supportive workplace adjustment is likely to be required when Doreen’s symptoms improve and I suggest that consideration is given to an Occupational Health review when appropriate in order to review progress, her capabilities and symptoms.”[51]The assessor’s clinical notes were attached [493-98], under “Clinical Impression, “Disability if question has been asked: N/A” [497]. The Outcome letter made reference to the meeting of 30 August 2022 and mentioned some of the points discussed during the meeting. This outcome letter was received well outside of 5 working days.[52]The respondent’s policy on dismissal begins at [408]. It provides: General considerations[62]Dismissal is lawful when it is a reasonable outcome arrived at through a fair process. It must be a last resort because the consequences of any dismissal on an employee and their family are potentially very significant. Dismissal may be considered if the individual circumstances justify it and:(a) All the procedures have been followed correctly;(b) None of the special circumstances, at any stage of the process, apply;(c) In the case of long-term sickness, a return to work within a reasonable timescale is unlikely or uncertain;(d) There are grounds and, where available, evidence to support the conclusion that the absence cannot reasonably be supported for longer by the business;(see paragraph 64)(e) Up to date Occupational Health advice has been received (-this must be within the last three months);(f) There are no further reasonable adjustments that can be made to help the employee return to satisfactory attendance;(g) Civil Service HR Casework advice has been sought by completing the Civil Service HR Casework Query Form.(h) It is not appropriate to offer demotion as an alternative to dismissal[63]The manager must be satisfied that there is nothing further that can reasonably be done to sustain an improvement in the employee’s attendance and the dismissal must be a proportionate response given the individual circumstances. They must ensure all the information and action in the checklist has been followed and noted before sending to a decision maker.[64]Where a decision to refer to a decision maker to dismiss is based upon the business being unable to support the absence further, the line manager must detail the reasons for this and include them in their referral to a decision maker. These must be as precise as possible and should include, for example, details about:(a) People impacts – e.g. the effect on colleagues, disruption, inconvenience, redistribution of work;(b) Service – e.g. impact on service delivery, achievement of KPIs, backlogs(c) Prognosis – e.g. what has been said about the expectation of recovery in the near future, how certain is this, what has OHS or other medical experts said, has a certain return to work date been indicated?(d) Cost – e.g. of the employee’s sick pay, of TDA, overtime or other measures to cover the absence, of the manager’s/administrative time’[65]The employee must be notified of the reason their case is being referred to a decision maker.53. The papers were forwarded to Ms Stevens who was to be the decision maker. At Ms Stevens’ request, Ms Haste completed a form [522]. This answered a detailed list of questions relating to the claimant’s absence. She recorded that the claimant had “mentioned that there were some small improvements since the last meeting and whilst [the claimant was] still hopeful to return to work, [she] could not give any indications as to when this would be.” The letter of 10 November [528-529] confirmed the Decision Makers Meeting had been rescheduled to 16 November 2022 and said that a note taker would be present to confidentially make a record of the discussion and that. following the meeting. Ms Stevens would consider the claimant’s comments and all the relevant information when making her decision and will send her decision in writing within 5 working days. She had previously advised that Maria Theori would be the note taker. The claimant contacted Ms Stevens to acknowledge the meeting invitation on the 10 November 2022 [530-531] and to request that Pam Reid took meeting notes for accuracy, continuity, and confidentiality. The respondent replied on 11 November 2022, as follows: “You are allowed to bring a representative to the meeting, but Maria Theori will be the nominated minute taker as per the previous meeting to keep continuity as per the point raised at the meeting of 30th August, so I don’t believe that you will need Pam Reid to take notes as well.” The claimant responded: “Respectfully, the notes which you attached to your correspondence were taken by Pam Reid.” The respondent did not respond to her email.54. At the beginning of the meeting on 16 November 2022, Ms Stevens made reference to Pam Reid taking the minutes and whether she was coming. The claimant responded saying that she wanted her to attend, but as the respondent did not reply to her email, confirming it was ok, she did not ask Pam to attend. Ms Stevens replied saying “I sent you an email.” The claimant said that she had not received it and then requested a few minutes in order to check if Pam Reid was available. The respondent agreed. The respondent amended a separate copy of the meeting notes to reflect that the claimant said “she did not receive my email”. There was a period of back and forth, between the respondent and the claimant, before Ms Stevens accepted that the OH report of 16 December 2021, actually contained a recommendation and when the recommendation was located, she questioned whether the respondent’s Long Covid Clinic actually existed. [550-558]. Ms Stevens asked whether there was anything she or the DWP could do in terms of “easements”. The claimant’s response was: “there’s nothing specifically, I have a range of symptoms. Most days I am sitting or lying-in bed, if I was given something to do, In don’t know what I can do day to day” [550]. There was a discussion about the fact that the NHS community occupational therapist had said that they would refer the claimant for “vocational rehabilitation”. The claimant explained to Ms Stevens: “…. but I’m not ready for that, way off I need to be able to move around with new illness I have to ga[u]ge as you go.” She was finding her physiotherapy exercises difficult [724]. The meeting notes for the 16 November meeting were not provided by the respondent until 15 December 2022 [631].55. On 15 December 2022, the claimant attended OH again. The OH report [622] shows the claimant was not fit to work: “In my opinion, a timeframe for a return to work is subject to her progress with therapy and response to prescribed treatment, however it is not anticipated for the foreseeable future. I have been unable to identify any adjustments or restrictions that would expedite the return, although you may wish to consider a referral to the PAM’s Long Covid Management Clinic.” The Report states that the claimant is likely to be fit to work “in the future; therefore, ill health retirement is unlikely to apply.”56. When Ms Stevens contacted HR again, they recommended that she should meet with the claimant again to discuss the OH report dated 15 December 2022 and suggested that she make a referral to the long covid clinic.57. The claimant wrote to Maria Theori, on 29 December 2022 [628-630], advising that she could not confirm the accuracy of the minutes, some areas of the minutes appeared to have omissions and appear less clear and she requested some amendments. The respondent also requested during the meeting that the claimant provided a statement of the points which she wanted her to consider, both what she had mentioned in the meeting and anything extra.58. Following that meeting, the claimant provided a written statement for Ms Stevens’ further consideration [1135-1148] in which she says [1142]: the possibility of me being provided with immediate help. Hannah failed to refer me for support which has been specifically developed to support one of my exact conditions. She did not offer any reasonable explanation, despite her receiving advice from OHS who are medically qualified. Her lack of action does not reflect a supportive approach and does not demonstrate fairness. Hannah’s inaction was very disappointing and shocking for me, especially as the OH assessor had made me aware of the support, which would increase the possibility of me being provided with immediate help.59. Ms Stevens reconvened the decision meeting on 11 January 2023 [642-649] to discuss the OH report. She double checked with the claimant that she was still not interested in ill-health retirement. She mentioned that OH and HR had said that she likely would not meet the criteria, with the caveat that only the ill-health retirement scheme would be able to say definitively. The claimant had not been expecting this question and asked for 24 hours to consider, which was granted. Ms Stevens also explained that she had looked into the respondent’s long covid clinic and offered to make a referral for the claimant. Ms Stevens said that everything the guidance said the clinic offered was already being offered to the claimant through the NHS. The claimant said that her decision depended on whether her contract was terminated and said that she was receiving a range of support. The claimant raised concerns about the minutes not being verbatim, but Ms Stevens explained to her that they were not meant to be verbatim, the purpose was to capture the key points of the conversation. She explained she had asked the claimant to provide the personal statement to ensure that she took into account all of the points that she wanted to be raised. The claimant raised the fact that the notes were not distributed by the meeting note taker to her. All the meeting notes and amendments for the Decision Maker meetings came from Decision Maker, Ms Stevens, despite her writing to Maria (the note taker) with amendments [642-649, (pages 645 onwards)]. The claimant was asked again about Ill Health retirement and also whether she wanted to be referred to the respondent’s Long Covid Clinic although Ms Stevens said it was support she was already receiving and she could not work from home.60. On 12 January 2023, the claimant emailed Ms Stevens to confirm that she did not want to apply for ill-health retirement [650].61. On 18 January 2023, Ms Stevens emailed the claimant to advise her that there had been a delay in making the decision due to unforeseen reasons [655]. There was another delay and she informed the claimant of this on 23 January 2023 [656]. Ms Stevens, in making her decision, took into account the procedural failures that the claimant had raised, such as invites not being sent, and her not being provided with the minutes of meetings. Ms Stevens considered that due to the times that they were in due to Covid-19, she could understand how and why things had not been done correctly and she felt that it was to her line managers’ credit that they maintained the regular meetings with her, despite everything else that was going on. She appreciated that it would have been ideal for the claimant to have received the letters and minutes, but she ultimately felt that even though the process was not followed correctly, it would not have changed the claimant’s health or the impact of her absence on the business. It also did not affect her ability to make the decision. Even if the process had been followed, the claimant would still not be fit enough to return to work at the time the case was referred to her, it did not change the outcome of her decision. She also considered the fact that the claimant had not been referred to the PAM assist long covid clinic. However, Ms Stevens relied on the fact that the claimant was already receiving support from the NHS clinic. Ms Stevens reviewed the criteria [1160-1165] and given how long she had been ill with long-covid, she concluded that she likely would not have been eligible at the stage that OH mentioned it to the department, as she would have been referred on to the NHS. The claimant said that Ms Haste failed to inform Ms Stevens of the claimant’s pre-existing long-term conditions and the new heart condition prior to the decision meeting. Ms Stevens looked into the claimant’s case and despite the fact that it was referred to her on one particular basis (long covid), she looked at the whole case before making her decision. She could see from the whole case that the claimant had other conditions and therefore any apparent ‘failure’ on Ms Haste’s part to mention the claimant’s other conditions did not impact her decision. When she came to her decision, she understood that long covid had impacted her other conditions and took that into account, and she made sure that she had everything that she needed to make a decision. During the first meeting with the claimant, she explained that most days she sat or laid in bed [532] and that there were no adjustments that the respondent could make. She was not able to return to work in any capacity. Her energy was very low and, on this basis, Ms Stevens did not see a reason to explore working from home, as she could not sit up for long periods of time. She considered that working from home was simply not feasible. She decided that given the length of time the claimant had been absent and the fact that there was no prognosis on when she could return to work, dismissal was the appropriate outcome. She considered demotion or an alternative role but as the claimant was not able to work at all they would not have helped her return to work or maintain a satisfactory level of attendance. She read all the minutes available to her and she had ensured that the claimant had opportunity to present her side through two meetings and her statement. As the claimant was off sick and she did not have any timeline for a return to work, the respondent could not recruit another member of staff behind her. Staff had unprecedented caseload sizes and they were feeling the pressure.62. On 23 January 2023, Ms Stevens contacted HR for a consistency check [657- 659] in line with the attendance management procedure [1217]. The purpose of this check is to ensure that the respondent is being consistent as a department throughout the country. Within her request, she detailed that the claimant had been absent due to long covid but mentioned her pre-existing conditions of pulmonary embolism and her shoulder injury, as well as her new heart condition caused by covid.63. On 25 January 2023, Ms Stevens had a Teams call with HR in which they advised her that her decision to dismiss was consistent with other decisions. They had a lengthy conversation and discussed the options available, the impact on the business and the claimant.64. On 31 January 2023, the claimant received a letter [685] advising here that the respondent: “Had decided to terminate your employment with the Department of Work and Pensions on the grounds of your unsatisfactory attendance,” The effective date of termination was 28 February 2023. 65. The claimant raised an appeal on 13 February 2023 [754]. Ms Cooper-Patel held the appeal meeting on 27 February 2023 via Teams, at which the claimant was accompanied by a union representative, Raymond Mordi [802-812]. She read from her prepared script at the beginning, before asking the questions of the claimant that she had prepared. She mentioned that she felt that Ms Stevens had given due consideration to the procedural errors because she could see from the attendance management decision maker’s checklist [666-674] and attendance management decision maker’s record of decision [675-678] that she had been thorough in considering this and it was addressed in the outcome letter [689]. The claimant explained why she felt the correct process had not been followed. The claimant reiterated that she had not been provided with formal letters allowing representation at meetings, lack of outcome letters, no meeting notes, not being referred to the respondent’s Long Covid clinic, relevant information omitted from discussions CSHR regarding health conditions /disabilities and OHS recommendations, and that Ms O’Sullivan had referred her to OHS without her consent etc. Mr Mordi also made representations on the claimant’s behalf. The meeting was conducted by Teams as the claimant was too unwell to come into the office. During the call, the claimant struggled to breathe, so they had to pause a number of times so that she could catch her breath. The respondent would have been willing to put adjustments into place temporarily so that she could work from home, had she been fit to do so, but she was not.[66]Following the meeting, Ms Cooper-Patel considered the evidence and what the claimant had said to make her decision. One of the points that the claimant had raised was that Ms Haste, her line manager, had not mentioned the claimant’s new heart condition caused by covid, her pre-existing conditions or that OH had recommended a referral to the long covid clinic to CSHR in September 2022. The claimant felt that if Ms Haste had done so, CSHR would have recommended that the claimant be referred to the PAM assist long covid clinic rather than to a decision meeting. Ms Cooper-Patel felt that it was reasonable for Ms Haste to not mention this, as the claimant had been referred to the NHS long covid clinic in June 2021, over a year prior. She had attended a first appointment with the NHS long covid clinic in March 2022, so she was already getting support. Ms Cooper-Patel obtained a copy of information relating to the PAMassist long and post COVID syndrome case-managed service [815-816]. Ms CooperPatel took the view that as the claimant was already under the care of the NHS long covid clinic, the PAM assist clinic would not have been of assistance to her as the guidance was clear that at any time during the programme, if significant concerns arose or recovery was not as expected then onward signposting to the NHS will be recommended. Due to the severity of the claimant’s symptoms, PAM assist would have referred her to the NHS immediately. The claimant said that Ms Haste should have informed CSHR about her conditions in December 2022, however Ms CooperPatel did not feel that the context called for it. Ms Stevens was asking about whether a further meeting was required and therefore Ms Cooper-Patel did not consider that this impacted the fairness of the dismissal. The claimant had also questioned the sentence ‘minor procedural errors at the beginning of the absence spell’ [660]. Ms Cooper-Patel reviewed the referral form [657-659] and noted that Ms Stevens had not described the errors as ‘minor’; it was CSHR who did so. Ms Cooper-Patel did not see that this caused the decision to dismiss the claimant to be unfair. Ms Cooper -Patel did not agree with the claimant that insufficient consideration had been given to her pre-existing conditions. The last three OH reports [317, 499 and 623] unanimously confirmed that the claimant was not fit in any capacity to return to work, there was no timeframe for her to return and the respondent could not provide any adjustments or alternative roles to facilitate a return. She considered that Ms Stevens had correctly determined that the respondent was unable to support the claimant’s absence any longer.[67]The Appeal Manager’s outcome letter [861-866] of 6 March 2023 included responses to many of the issues the claimant raised and rejected the claimant’s appeal.[68]In May 2023, the claimant’s consultant physician narrates “she remains incapacitated… by her symptoms…” [M5 p19][69]Early conciliation (EC) began on 26 May 2023 and an EC Certificate was issued on 7 July 2023.[70]The claimant presented her claim form to the Tribunal on 5 August 2023. SUBMISSIONS[71]The claimant’s 77-page witness statement was, in essence, a rolling submission on her case, these were augmented by oral submissions by counsel. The Tribunal received detailed written and oral submissions from the respondent. The submissions are not repeated here but were appreciated by the Tribunal. LAW Time limits
LAW
[72]Section 123(1)(a) Equality Act 2010 (EqA) provides that any proceedings must be brought within three months (less a day) of the act or acts of discrimination which the claim concerns. Section 123(1)(b) of the EqA permits the Tribunal to grant an extension of time for such other period as the employment tribunal thinks just and equitable. Section 140B of the EqA serves to extend the time limit under section 123 to facilitate conciliation before institution of proceedings.[73]Tribunals have a wide discretion, as long as they consider the length and reasons for the delay and any prejudice to the respondent: Abertawe v. Morgan [2018] ICR 1194 CA, per Leggatt LJ at paras 18-19. The Tribunal relied on the guidance provided by HH Judge Tayler at paragraphs 27-37 in Jones v. Secretary of State for Health [2024] EAT/2.[74]The Tribunal’s discretion is as wide as that of the civil courts under section 33 of the Limitation Act 1980; British Coal Corporation v. Keeble [1997] IRLR 336; DPP v. Marshall [1998] IRLR 494. Section 33 of the Limitation Act 1980 requires courts to consider factors relevant to the prejudice that each party would suffer if an extension was refused, including: the length and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had co-operated with any requests for information; the promptness with which the claimant acted once he knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action. Although these are relevant factors to be considered, there is no legal obligation on the Tribunal to go through the list, providing that no significant factor is left out; London Borough of Southwark v. Afolabi [2003] IRLR 220.[75]It is also a generally received starting proposition that it is for the claimant who has presented his or her claims out of time to establish to the satisfaction of the Tribunal that the “just and equitable” discretion should be exercised in the particular case. Unfair dismissal[76]Dismissal must be for a potentially fair reason within the meaning of section 98 of the Employment Rights Act (“ERA”) 1996. Capability is a potentially fair reason: section 98(2)(b) ERA 1996. At the first stage of assessing fairness, the employer merely has to show that the reason given was the reason it in fact relied on and that it was capable of being fair. Once it has done this, the Tribunal goes on to consider whether the dismissal was fair in all the circumstances within the meaning of section 98(4) ERA 1996.[77]Section 98(4) of the ERA provides: (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[78]In the context of capability, the starting point for analysing the duty of the tribunal in deciding whether or not an ill health capability dismissal is fair is the decision in Spencer v. Paragon Wallpapers Ltd [1977] ICR 301 EAT. In that case, Phillips J emphasised the importance of scrutinising all the relevant factors: ''Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?'' And he added that the relevant circumstances include 'the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do'.[79]In Lynock v. Cereal Packaging Ltd [1988] ICR 670 EAT, the Employment Appeal Tribunal described the appropriate response of an employer faced with a series of intermittent absences but the guidance should be apposite to continuing absence as follows: ''The approach of an employer in this situation is, in our view, one to be based on those three words which we used earlier in our judgment—sympathy, understanding and compassion. There is no principle that the mere fact that an employee is fit at the time of dismissal makes his dismissal unfair; one has to look at the whole history and the whole picture. Secondly, every case must depend upon its own fact, and provided that the approach is right, the factors which may prove important to an employer in reaching what must inevitably have been a difficult decision, include perhaps some of the following—the nature of the illness; the likelihood of recurring or some other illness arising; the length of the various absences and the spaces of good health between them; the need of the employer for the work done by the particular employee; the impact of the absences on others who work with the employee; the adoption and the exercise carrying out of the policy; the important emphasis on a personal assessment in the ultimate decision and of course, the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee so that the employee realises that the point of no return, the moment when the decision was ultimately being made may be approaching. These, we emphasise, are not cases for disciplinary approaches; these are for approaches of understanding'.'[80]Thus, there is a conflict between the needs of the business and those of the employee and the Tribunal must be satisfied that the employer has sought to resolve that conflict in a manner which a reasonable employer might have adopted. In the course of doing this, he will have to show that he carried out an investigation which meant that he was sufficiently informed of the medical position.[81]The importance of consultation was stressed in the following passage from the judgment in East Lindsey District Council v. Daubney [1977] ICR 566 EAT: ''Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers' medical advisers, will cause them to change their opinion. There are many possibilities. Only one thing is certain, and that is that if the employee is not consulted, and given an opportunity to state his case, an injustice may be done'.'[82]Bugden v. The Royal Mail Group Ltd 2024 EAT 80 is recent authority for the principle that whether there has been consideration of redeployment to an alternative role is a necessary question in dismissals arising from ill-health absence. Thus, it should be addressed by the Tribunal even if the parties haven’t raised it. It is relevant to whether dismissal was within the range of reasonable responses of a reasonable employer.[83]The test is whether the decision to dismiss the employee fell within the range of reasonable responses: Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439. A tribunal must not substitute its view for that of the employer: HSBC Bank plc (formerly Midland Bank Plc) v. Madden [2000] IRLR 827 CA. Discrimination arising from disability[84]The first stage of the analysis under section 15(1) EqA requires two questions to be answered: firstly, what was the relevant treatment? And, secondly, was it unfavourable to the claimant? Trustees of Swansea University Pension and Assurance Scheme and another v. Williams [2019] ICR 230 SC, per Lord Carnwath at para 12.[85]Unfavourable treatment is a relatively low threshold and means some sort of disadvantage or detriment: Williams at para 27.[86]The second stage of the analysis requires an assessment of the causal connections between the disability, the “something arising” and the alleged unfavourable treatment.a. The “something arising” must have a more than trivial influence on the unfavourable treatment and so amount to an effective reason for or cause of it. The focus must be on the conscious or unconscious thought processes of the alleged discriminator, as in direct discrimination cases: Pnaiser v. NHS England [2016] IRLR 170 EAT, per Simler P at para 31.b. The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B's disability”. This is an objective question. “Something arising in consequence of B's disability” could describe a range of causal links and could include more than one link. The more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact: ibid.[87]In order for an objective to be a proportionate means of achieving a legitimate aim, it must correspond to a real need, the means used must be appropriate with a view to achieving the objective and (reasonably) necessary to that end. It is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group: R (Elias) v. Secretary of State for Defence [2006] 1 WLR 3213 CA, per Mummery LJ at para 151.[88]It is for the Tribunal to weigh the real needs of the undertaking against the discriminatory effects of the requirement: Hardy & Hansons plc v. Lax [2005] ICR 1565 CA, per Pill LJ at para 32. O’Brien v. Bolton St. Catharine’s Academy [2017] ICR 737 CA also provided guidance on section 15 and the unfair dismissal provisions. Reasonable adjustments[89]The duty to make reasonable adjustments is found in section 20 of the EqA which provides: (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.[90]The PCP being complained of must be one which the alleged discriminator 'applies or would apply equally' to persons who do not have the protected characteristic in question. As Baroness Hale stated in Rutherford v. Secretary of State for Trade and Industry [2006] ICR 785 HL , ”It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and disadvantaged groups.”[91]Lord Rodger said in Archibald v. Fife Council 2004 ICR 954 HL (SC) at para 42: “…Here, Mrs Archibald never swept a road after she became unfit. What actually happens if an employee becomes so disabled that she cannot perform the essential functions of her job is that, under her contract of employment, she is liable to be dismissed. That is the substantial disadvantage she suffers. The contractual term, whether express or implied, which provides for her dismissal in these circumstances constitutes the relevant "arrangement" for the purposes of section 6(1). That arrangement places the disabled person at a substantial disadvantage by comparison with persons who are not disabled, because she is liable to be dismissed on the ground of disability whereas they are not.”[92]The guidance given in Environment Agency v. Rowan [2008] ICR 218 EAT is to be applied, namely, that in order to make a finding of failure to make reasonable adjustments there must be identification of:(a) the provision, criteria or practice applied by or on behalf of an employer; or(b) …;(c) the identity of non-disabled comparators (where appropriate); and(d) the nature and extent of the substantial disadvantage suffered by the claimant.[93]In terms of whether a disabled person has been put at a substantial disadvantage, in Griffiths v. Secretary of State for Work and Pensions [2017] ICR 160 CA, the Tribunal and Employment Appeal Tribunal were found to have erred in identifying the relevant PCP, which in fact was the requirement for an employee to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That PCP obviously “bit harder” on the disabled employee, who would be more likely to be absent on ill-health grounds. The disabled person was therefore put at a substantial disadvantage and the s.20 duty applied.[94]Elias LJ at [47] reformulated the relevant PCP. This was not the attendance management policy as such but the requirement that an employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions: “In my judgment, the appropriate formulation of the relevant PCP in a case of this kind was in essence how the ET framed it in this case: the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That is the provision breach of which may end in warnings and ultimately dismissal. Once the relevant PCP is formulated in that way, in my judgment it is clear that the minority member was right to say that a disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way. Whilst it is no doubt true that both disabled and able bodied alike will, to a greater or lesser extent, suffer stress and anxiety if they are ill in circumstances which may lead to disciplinary sanctions, the risk of this occurring is obviously greater for that group of disabled workers whose disability results in more frequent, and perhaps longer, absences. They will find it more difficult to comply with the requirement relating to absenteeism and therefore will be disadvantaged by it.”[95]In Yorke v. Glaxosmithkline Services Unlimited EA-2019-000962-BA, the Employment Appeal Tribunal, set out guidance from Archibald at paras 39-41 which is not repeated here. At para 38, it also set out what was said in Carreras v. United First Partners Research UKEAT/0266/15/RN as follows: [30] As noted by Laing J, when putting this matter through to a Full Hearing, the ET essentially dismissed the disability discrimination claim because it found that an expectation or assumption that the Claimant should work late was not the pleaded PCP. [31] The identification of the PCP was an important aspect of the ET’s task; the starting point for its determination of a claim of disability discrimination by way of a failure to make reasonable adjustments (see Environment Agency v Rowan [2008] IRLR 20 EAT, para 27). In approaching the statutory definition in this regard, the protective nature of the legislation means a liberal rather than an overly technical or narrow approach is to be adopted (Langstaff J, para 18 of Harvey); that is consistent with the Code, which states (para 6.10) that the phrase “provision, criterion or practice” is to be widely construed. [32] It is important to be clear, however, as to how the PCP is to be described in any particular case (and I note the observations of Lewison LJ and Underhill LJ on this issue in Paulley). And there has to be a causative link between the PCP and the disadvantage; it is this that will inform the determination of what adjustments a Respondent was obliged to make.[96]The Employment Appeal Tribunal in Yorke continued at para 42: “Thus, using the language of the EqA 2010, it is clear that the requirement to undertake the duties of a job can be a PCP that can put a disabled person at a substantial disadvantage because they become incapable of performing them and so are at risk of dismissal, and that a reasonable adjustment can be moving the disabled person into an alternative role. The application of an employer’s policies that place a disabled person at a significantly increased risk of dismissal in such circumstance can also be a PCP, the application of which places the disabled person at a substantial disadvantage, and may require an adjustment of moving the disabled person into another role. Similarly, if the inability of the disabled person to undertake the duties of her role results in her being absent from work, and she is dismissed as a result of the absences, but this could reasonably have been avoided by transfer into an alternative role, the dismissal is likely to be because of something arising in consequence of disability (the absence) that is not capable of justification (because a reasonable adjustment could have avoided it).[97]That passage was referred to by the Employment Appeal Tribunal in Martin v. City and County of Swansea [2021] EA-2020-000460-AT. There, HHJ Tayler observed: “PCPs are not designed to be traps for the unwary and a practical and realistic approach should be adopted at the case management stage to identify a workable PCP which should not thereafter be overly-fastidiously applied with the result that a properly arguable reasonable adjustments claim cannot be advanced, particularly when dealing with litigants in person… Where a party is represented the employment tribunal can expect the PCP to be properly identified and so representatives should always consider how the PCP is pleaded with great care. A preliminary hearing for case management will often be a good opportunity to review whether the PCP as pleaded is workable and, if not, to consider whether an amendment might be required to rephrase the PCP. But whatever PCP is finalised it should be given a reasonably generous reading when determining the claim.”[98]In Martin, the claimant had pleaded as the PCP “[A]n attendance management practice and/or policy that dismisses employees who are not capable of their role”. It later appeared in a Scott Schedule as “Requirement for claimant to be fully fit in her substantive role – attendance management policy”. A slightly different formulation then appeared in a list of issues. The Employment Appeal Tribunal found, “It is therefore clear that the Tribunal appreciated that the asserted PCP was the application of the Management of Absence Policy and the asserted substantial disadvantage was increased risk of dismissal.” Considering what had been said in Griffiths, HHJ Tayler in Martin observed: [43] Accordingly, it is necessary to distinguish between the terms of an absence management policy and its application. A policy can result in a disabled person being put at a substantial disadvantage because the policy is more likely to be applied to a disabled person in comparison with people who are not disabled because of the greater likelihood of sickness absences, even if there is a discretion in the policy that could be exercised that would avoid the disadvantage.” [44] I consider it is clear that the claimant did not merely assert that the PCP was the terms of the Management of Absence Policy, but contended it resulted from the application of the policy to her resulting dismissal because she was absent from work and was not fit to undertake the duties of her role… As a disabled person, the claimant was at increased risk of absence that could result in dismissal. The tribunal erred in law in holding that because there was a discretion in the policy to move the claimant to an alternative role, that could avoid the substantial disadvantage, the consequence was that the PCP did not put her at a substantial disadvantage. The application of the policy put the claimant at a disadvantage because she was at a greater risk of absence than people who are not disabled and so, because the discretion to find an alternative role might not be exercised in her favour, was at a greater risk of dismissal. …”.[99]With reasonable adjustments, there must be a prospect that the adjustment(s) will work (Leeds Teaching Hospital NHS Trust v. Foster EAT/0552/10). In South Staffordshire and Shropshire Healthcare NHS Trust v. Billingsley EAT/0341/15 Mitting J said: [17] Thus, the current state of the law, which seems to me to accord with the statutory language, is that it is not necessary for an employee to show that the reasonable adjustment which she proposes would be effective to avoid the disadvantage to which she was subjected. It is sufficient to raise the issue for there to be a chance that it would avoid that disadvantage or unfavourable treatment. If she does so it does not necessarily follow that the adjustment which she proposes is to be treated as reasonable under s 15(1) of the 2010 Act. [We understood this to be a reference to section 20]. [18] It is in the end a question of judgment and evaluation for the Tribunal, taking in to account a range of factors, including but not limited to the chance. A simple example may suffice to illustrate the point. If a measure proposed by an employee as a reasonable adjustment stands a very small chance of avoiding the unfavourable treatment arising out of her disability to which she would otherwise be subjected, but it was beyond the financial capacity of her employers to provide it so a Tribunal would be entitled to conclude that it was not a reasonable adjustment. Indeed, on those facts it would be difficult to justify a conclusion that it was a reasonable adjustment. In the case of a large organisation by contrast, where a proposed adjustment would readily be implemented without imposing an unreasonable administrative or financial burden on the employer then the obligation to take it may arise notwithstanding that the chance of avoiding unfavourable treatment was very far from a certainty.[100]In NHS Scotland v. McHugh EATS 0010/06, the Employment Appeal Tribunal sought to identify the time at which a disabled claimant was in a position to contend that he or she had been placed at a relevant disadvantage in the context of seeking a phased return to work following a substantial period of absence caused by the disability in question. It stated that the duty is not ‘triggered’ — to use the EAT’s own word — unless and until the claimant indicated an intention or wish to return to work. The Employment Appeal Tribunal had taken from the case of Home Office v. Collins [2005] EWCA 598 Civ that it was reasonable for the employer not to pursue the possibility of a phased return to part time work until the employee could indicate a definite date for her return. His Honour Judge McMullen observed: ‘We agree that a managed programme of rehabilitation depends on all the circumstances of the case, but it does include a return-to-work date. And certainly, if additional management and supervision is to be required, they must be arranged in advance and not in a vacuum. Similarly, if additional costs were to be incurred by (not this case) the purchase of new equipment to counteract the effect of the environment on the disabled person, there would be no need to spend that money in advance of a clear indication that the claimant was returning. In our judgment, applying the trigger approach… it was not reasonable for the respondent to pursue the possibilities which the tribunal noted until there was some sign on the horizon that the claimant would be returning.’[101]The reasoning in NCH Scotland was adopted by an employment tribunal in Brown v. Commissioners for HM Revenue and Customs and ors ET Case No. 2510511/09, where the claimant had been absent from work for a period of three years until the termination of his employment. His absence was initially due to a physical impairment but was later extended because the claimant had developed a psychological illness. During this period the claimant’s sick pay was reduced to half pay under the terms of the employer’s sickness policy. In April 2009, the claimant asserted that he might be able to return to work, provided a number of major adjustments were made, and discussions between him and the employer took place regarding these. However, in August 2009 a medical report intimated that the claimant was unlikely to be able to return to his most recent job and set out a projected timeframe for his recovery of up to five years, and possibly longer. In consequence, the employer terminated the claimant’s employment on capability grounds. Regarding the claim for breach of the duty to make reasonable adjustments, the tribunal pointed out that, apart from the claimant’s bald statement that he might be able to return to work, there was no supportive medical evidence that he was realistically in a position to do so. On this basis, the statutory duty was not triggered. Furthermore, the employer had not waived its right to argue that the duty had not been triggered when it entered into discussions about the possibility of the claimant returning to work and about the adjustments that would be necessary to accommodate this.[102]In Doran v. Department for Work and Pensions EAT 0017/14, the Employment Appeal Tribunal noted that the decision in NHS Scotland was obiter so far as the trigger point for the duty to make reasonable adjustments was concerned. However, Lady Stacey nonetheless approved the observations of HHJ McMullen. In Doran, the claimant had gone off sick in January 2010 and was subsequently dismissed by reason of capability in May 2010 on the basis that the employer could no longer support her absence. An employment tribunal found that the employer’s policy of requiring consistent attendance at work was a PCP that placed the claimant at a substantial disadvantage in comparison with a non-disabled person. The Tribunal accepted the employer’s evidence that it would usually consider dismissal when an employee’s absence extended beyond six months. With regard to reasonable adjustments, the claimant had raised the possibility of a return on part-time hours early on in her period of sickness absence and the employer had indicated that it would be willing to accommodate a phased return. However, at the time the employer decided to dismiss, the claimant continued to be signed off as unfit for work and had given no indication of a date when she might be fit to return to work, subject to adjustments. In these circumstances the Employment Appeal Tribunal upheld the Tribunal’s decision that the duty to make reasonable adjustments had not been triggered. It also considered that the Tribunal had been entitled to find that ‘the ball was in [the claimant’s] court to discuss’ a possible return to work. “On the facts found by the ET in this case, there is in my opinion no foundation for the argument that the respondent benefited by its own neglect of duty when it failed to arrange the case conference in accordance with its own procedures. Such an argument would be dependent on there having been acceptable evidence that the claimant or the GP would, more likely than not, have given the information to the respondent which would indicate that she was fit to return to work under reasonable adjustments. There is no evidence to that effect.”[103]In London Underground Ltd v. Vuoto UKEAT/0123/09, the employer had suddenly withdrawn agreed adjustments, and the tribunal found that the duty had been engaged notwithstanding the absence of a clear return date. The case was distinguished from Collins; in that case, there had been no evidence or finding that the adjustment proposed would have enabled the claimant to return to work. “This was not, therefore, a case where the claimant’s condition had resulted in a situation which was irretrievable” (para 124). Vuoto was different, there was an occupational health report suggesting adjustments that could be made to the claimant’s job in order for him to undertake certain aspects of it – in particular, a regular working hours pattern. The Employment Appeal Tribunal added (para 125), “We agree… that the case of Collins does not establish any general proposition of law that an employer’s duty to make reasonable adjustments does not arise until an employee indicates when they will be able to return to work.”
Remedy
[104]The Tribunal’s aim, in awarding compensation, must be to, ‘as best as money can do it, “... put [the claimant] into the position she would have been in but for the unlawful conduct” (Ministry of Defence v. Cannock and ors 1994 ICR 918 EAT). Injury to feelings[105]Section 124 of the EqA states that the amount of compensation which may be awarded for discrimination corresponds to the amount which could be awarded by a County Court in England & Wales or a Sheriff in Scotland. Section 119 EqA provides that an award of damages may include compensation for injured feelings.[106]In Prison Service & Ors v. Johnson [1997] ICR 275 EAT, the Employment Appeal Tribunal summarised the general principles that underlie awards for injury to feelings. They are not repeated in full here, but the Tribunal have taken them into account.[107]Three bands of injury to feelings awards were set out by the Court of Appeal in Vento v. Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318. Injury to a claimant’s feelings is subjectively, rather than objectively measurable, echoing the words of Lord Justice Mummery in that case: injury to feelings encompasses “subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise…Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms”.[108]The Vento bands were subsequently uprated to reflect inflation (Da’Bell v. NSPCC [2010] IRLR 19 EAT and AA Solicitors Ltd t/a AA Solicitors and anor v. Majid EAT 0217/15) and the decisions reached in Simmons v. Castle 2012 EWCA Civ 1288 and De Souza v. Vinci Construction (UK) Ltd [2018] ICR 433.[109]The Presidential Guidance for Employment Tribunal Awards for Injury to Feelings and Psychiatric Injury (and subsequent annual updates) provides guidance on further uprated bands, taking into account inflation and the Simmons uplift. DISCUSSION and DECISION
The Issues
[110]Addressing the issues, the Tribunal answered the live questions as follows:[111]The claimant’s dismissal was on 28 February 2023. Her claim was presented on 5 August 2023 following an early conciliation period between 26 May and 7 July 2023, accordingly, the unfair dismissal claim is in time, as is Issue 4(a)(i): the part of the section 15 claim (discrimination arising from a disability) that cites dismissal as the unfavourable treatment.[112]The remainder of the claim is out of time:a. Issue 4(a)(ii) is out of time – the part of the discrimination arising complaint that cites as unfavourable treatment a failure to refer the claimant to the DWP’s long covid service from 16 December 2021. This relates to the period between December 2021 and January 2022. It is therefore over a year out of time. The claimant did not seek to characterise the failure as a ‘continuing act’. In December 2021, a manager sought OH advice which was provided on 16 December 2021 which said the manager may wish to refer the claimant to the DWP’s service. The manager received the report and failed to consider referring the claimant to the DWP’s service. That is a failure to act as opposed to the start of an ongoing situation or continuing state of affairs in which the claimant was treated less favourably, although subsequent managers had access to the same information and did not follow the OH suggestion.b. The same difficulty applies to Issue 3(d)(i) - the reasonable adjustments claim relating to that same failure.c. None of the other claimed reasonable adjustments is dated by the claimant (see Issues 4(d)(ii) adjusting the attendance level required; (iii) permitting the claimant to work from home; and (iv) following advice from CSHR) but none of them appears to relate to the period between 27 February 2023 and the filing of the claim form.[113]The problem with Issue 4(a)(ii) is the period of time during which it is claimed that the failure took place and further in relation to Issue 3(d)(i) how the failure can be characterised in a legal sense. The latter is discussed more fully in relation to reasonable adjustments later. The 4(a)(ii) issue is brought into sharp fucus when Ms Haste referred the claimant for dismissal on 11 October 2022. In these circumstances, the Tribunal decided to amend this and the related reasonable adjustments issues to accommodate the claimant’s claims of failing to refer the claimant to the DWP long covid clinic and the dismissing managers failing to adjust attendance levels from the point that Ms Haste decided to refer the claimant to a decision maker. Inaction prior to that date is out of time but relevant background.[114]On the basis of the guidance set out earlier and weighing all the relevant factors, the Tribunal considered that it is proportionate to resolve the amended issues from 11 October 2022 on the basis that it is just and equitable to extend the time to do so. The claimant was extremely unwell over the whole period of her absence. She plainly had problems focussing on specific issues, hence the continued repetition of historical complaints. In addition, the Tribunal took into account their prospects of success as discussed later. The Tribunal considered the prejudice to the respondent. Plainly any admission of an out of time claim is prejudicial but the respondent was prepared for the arguments arising from a much earlier date than that being permitted. The Tribunal decided not to extend time to admit the remaining issues in 4(d)(ii) on account of their prospects of success as discussed later.[115]There was no dispute that the reason for dismissal was capability. The dispute revolved around the procedure adopted by the respondent.[116]The claimant relied on point 63 of the Attendance Management Procedure which highlights that dismissal is lawful when it is a reasonable outcome arrived at through a fair process. It should be a last resort etc. 63a. states that all the procedures have been followed correctly. Point 64 says: “The manager must be satisfied that there is nothing further that can reasonably be done to sustain an improvement in the employee’s attendance and the dismissal must be a proportionate response given the individual circumstances. They must ensure all the information and action in the checklist has been followed and noted before sending to a decision maker.”[117]The fact of having five-line managers did disrupt the continuity of absence management of the claimant. The claimant’s absence was the subject of regular review. Whether there was actual support is more doubtful. The Tribunal noted that the earlier line managers of the claimant were under extreme pressure and when taken with the lack of focus in the claimant’s narrative complaints may have led Ms O’Sullivan and others to fail to apply a policy which was apposite to the circumstances. The most significant failures in this regard were by Ms Haste, Ms Stevens and Ms Cooper-Patel in the steps towards dismissal. Ms Stevens and Ms Cooper-Patel, respectively the dismissing manager and appeal manager sought to have all the available accurate information, gave the claimant a full opportunity to state her position but then, perhaps due to being provided with too much unfocussed information failed to understand that an applicable policy had not been applied which should have been applied. The original failure of Ms O’Sullivan to refer the claimant to the DWP long covid clinic was lost sight of by subsequent managers. If Ms Haste had given the issue of referral reasonable attention she would have noted that a highly relevant policy had never been applied to the claimant. Neither Ms Stevens nor Ms Cooper-Patel seemed to understand the importance of applying the policy even at that late stage. They gave evidence as to why they considered it did not need to be applied but any reasonable employer would have applied a highly relevant policy.[118]The dismissing officer and appeal officer failed to appreciate the importance of the early failure to apply the policy as support and proceeded to deal with the case as one of lengthy absence without following the suggestion of OH and CSHR of a referral to the DWP clinic. In answer to a question to Ms Stevens by the Tribunal, what would she have done if the claimant had asked to be referred to the DWP clinic, she said she would have sent her the consent forms and referred her. Such an action would have been consistent with the respondent’s absence policy but it was for the respondent to ask in a context which was not dominated by the prospect of dismissal. When the possibility of referral was offered, on 22 November 2022, the claimant stated that this was “not relevant now” [725] but this was in the context of being considered for dismissal. If she was not in the dismissal process, a referral by either Ms Haste or Ms Stevens would have been welcomed notwithstanding she was in receipt of NHS treatment aimed at treating her disabilities, in particular her long covid syndrome.[119]The claimant contends that the respondent was not in a position to assess that she was no longer capable of performing her duties because of the failures during the process. The fact that the respondent failed to follow the detail of its own capability policy and procedures concerned and upset the claimant. The claimant relied upon Attendance Management Procedures Guidance [402] point 29, indicates that “the manager must write to the employee within 5 working days of the meeting summarizing any agreed supportive actions and advising them of the decision taken with the reasons for it.” Details are then provided about which Outcome letter should be issued depending on the scenario. The Tribunal considered that the failures made no difference to the decisions made. The Tribunal did not agree that this meant that they were unable to identify any improvement in her health. There was none. It was alleged that Ms Stevens (and others) did not have or equip themselves with the full information regarding the claimant, but the evidence shows that the decision-maker had all the minutes [557]. She also received a detailed, 13-page statement from the claimant which was a repeat of previous complaints but from which it could also be seen that any help with her long covid would be tried by the claimant [1135-1148].[120]The respondent submitted that there were no viable alternatives to dismissal. The Tribunal accepted that ill-health retirement did not apply as it was unchallenged by the claimant who decided not to apply for it. The Tribunal also accepted that redeployment to an alternative role was considered but reasonably concluded not to have been viable either as the claimant was not fit to work at all.[121]The claimant argued that the respondent had not conducted a reasonable investigation. She also believed it would have been reasonable for the respondent to wait longer before her dismissal, exploring other options although she does not specify what these options were as she was unable to undertake any form of work, thus the obvious options of limited duties in the office or working from home were precluded from her. The respondent requested advice from OH about the claimant returning to the office. The respondent’s Attendance Management Procedures [406 point 51] states that managers should regard the following as the default position: “Working from home is the default position, so if the employee’s role can be performed at home and their personal circumstances allow it, then the returnto-work discussions must focus on what is possible to enable this to happen. This includes providing IT kit, appropriate adjustments, upskilling, and support. Managers should explore all options to support a homeworking arrangement before a return to work to the office is discussed.”[122]The claimant points to the time she fell ill with the coronavirus when had been working at home. The last time she attended the office was 20 March 2022, with effect from June 2020, she was provided with equipment to work from home as a Universal Credit Work Coach and at one point she had in excess of two hundred claims which she was managing from home. The claimant is not correct where she says that the respondent claims that she was working from the office and that it was only possible to undertake her role from the office although it was undoubtedly more satisfactory for all that she did. At the time of her dismissal, the claimant was unable to work from home or at all. The alleged failure to offer home working should not have been persisted in by the claimant as her own evidence was that she was at no stage, unless perhaps very recently, fit to work from home.[123]The claimant continually raised the issue of the accuracy of the notes of various meetings. In the end, the Tribunal could not see that any differences in the notes were of importance in the way the claimant’s case was dealt with although the Tribunal could understand how the claimant would become concerned and upset. The claimant also complained that her disabilities and absences were not correctly set out in her records [509-510] which shows emails between Ms Haste and Ms Stevens, showing that Ms Stevens contacted Ms Haste requesting further information, as some items were missing and others, she was unable to access. Ms Haste’s email [509] incorrectly lists sickness reasons and dates, including a period “23.2.20 isolation covid” and “2/3/19 Severe headache”, which are not on the Attendance Management Plan [1074-1075]. The Tribunal finds that the respondent was fully aware of the claimant’s disabilities and absences by the dismissal stage.[124]The dismissal fell outwith the range of reasonable responses by reason of the failure to refer the claimant to the DWP long covid clinic alone.[125]The first step is to identify the relevant PCP. The list of issues recorded by EJ Klimov describes the PCPs [86] as:(i) The respondent’s sickness absence policy.(ii) A requirement that employees physically attend the office.[126]However, it the previously agreed list of issues described the first PCP differently [68]: “a requirement that employees undertake their full duties of their substantive role and/or maintain a specific level of attendance”. That accords more closely with the (albeit somewhat confusing) position set out in the Particulars of Claim, para 15 [33]: “… the Claimant contends that the Respondent’s requirement that the Claimant maintain her attendance to their desired standard amounted to a provision, criterion or practice, upon which the Claimant’s continued employment rested, upon which the Claimant’s continued employment rested, which placed her at a substantial disadvantage in comparison with persons who are not disabled.”[127]The reason for the change in the way the PCPs were identified is not clear from the Case Management Order of EJ Klimov. It stated, “The claims and issues, as discussed at this preliminary hearing, are listed in the Case Summary below (subject to further information to be provided by the claimant and the respondent’s amended response). If you think the list is wrong or incomplete, you must write to the Tribunal and the other side by 23 April 2024. If you do not, the list will be treated as final unless the Tribunal decides otherwise.”[128]The description of the PCPs has now been revised to be a requirement that employees undertake the full duties of their substantive role and/or maintain a specific level of attendance. The respondent accepted that such a PCP put the claimant at a substantial disadvantage vis-à-vis employees who did not share her disability. The other component of the PCP proposed, a requirement that employees physically attend the office, would also put the claimant at disadvantage, if applied. The Tribunal considered whether any of the iterations of PCP, particularly the PCPs in the current issues, were applied in this case. The aim of the respondent was to get the claimant back to some form of work either at home or preferably in the office. The Tribunal considered that neither of the PCPs relied on were actually applied to the claimant. The respondent was not prepared to accept the continuing absence of the claimant, but sought some form of return to work from the claimant thus it can be said, in the broadest sense, that in requiring the employee to undertake her duties, it applied a PCP which put her at a substantial disadvantage when she had become incapable of performing those duties and therefore was at risk of dismissal.[129]If the more generous PCP was applied to the claimant, this leads to a consideration of the point in time that a reasonable adjustment can be made. The Tribunal considered whether a such a claim could be made standing the medical evidence in the case. The claimant agreed in oral evidence that, if one were to summarise the period of just over two years to which this claim relates, one would say that she “experienced some slight improvement overall, but was very ill throughout and unfit to work throughout.” She also accepted that, throughout that period, no return was “on the horizon”. By the November 2022 decision meeting, the claimant described herself as “way off” being ready for “vocational rehabilitation”.[130]The OH report of 15 December 2022 [622] shows the claimant was not fit to work and says: “I have been unable to identify any adjustments or restrictions that would expedite the return, although you may wish to consider a referral to the PAM’s Long Covid Management Clinic.”[131]The Tribunal’s understanding of the authorities is that at the very least the reasonable adjustments proposed, referral to the DWP’s long covid service or adjusting the attendance level, do not reach the minimum requirement expounded by Mitting J in Billingsley of there being a “chance” that it would avoid that disadvantage or unfavourable treatment. There was no prospect of the claimant being able to return to work at this time or in the near future so there was no prospect of any reasonable adjustment working. The Tribunal concluded that the claim did not succeed.[132]Various other issues were raised during the proceedings and could not succeed on the merits:a. The absence of any back-to-work plan. This runs into the problem identified in McHugh, where the claimant alleged a failure to explore a phased return. The duty had not been triggered. It would not be reasonable for the employer to pursue available options until there was “some sign on the horizon” of a return. A phased return is a form of back-to-work plan. Any back-to-work plan extending beyond the type described by Dawn Haste of continued update meetings would not constitute a reasonable adjustment. Ms Haste explained in evidence that raising a back-to-work plan would, in the circumstances, have come across as disrespectful and that it would not have been fruitful.b. Ill-health retirement as a reasonable adjustment, this would not be a competent claim and was not made by the claimant.c. The claimant not receiving meeting notes on time. The claimant herself accepted that this did not hamper her in any way.d. The respondent not following its capability procedure. There were various complaints about earlier line managers not providing letters or minutes on time or at all. In relation to one meeting in July 2021, it is alleged that the claimant’s health conditions were not adequately recorded. Such procedural criticisms, dating back to early 2021, cannot be taken to have had any bearing on the claimant’s dismissal in 2023. The claimant also complains about not receiving CSHR advice. That advice is for managers, not the employees that are the subjects of it.e. Ms O’Sullivan not convening an occupational health case conference. It is the case that the Attendance Management Procedure required an occupational health case conference to be held once an absence reached three months. While not the subject of any pleaded allegation, it is fair to say that there is no evidence that the mandatory requirement under the (various iterations of the) policy was complied with. Ms O’Sullivan was questioned about this, but she was not the claimant’s line manager when, on 4 April 2021, her absence reached the three-month mark. Ms Jamil was, with Ms O’Sullivan taking over later, on 17 August 2021. A case conference then appeared as a ‘recommendation’ but in an, apparently internal, PAM OH Solutions triage report on 17 November 2021 [278]. That appears to have been overtaken two days later by a triage report recommendation for a ‘teleconsultation’ [281], which then took place, leading to the OH report of 16 December 2021 which mentioned nothing about an OH case conference. Any non-compliance took place some two years and four months before a claim was issued and was not on the list of issues.[133]Around June 2021, the claimant was diagnosed with Long Covid and referred to the NHS Long Covid Clinic. On the 10 June 2021, Raymond Mordi PCS suggested that the respondent should refer her to OHS for advice regarding Long Covid, however Ms Jamil did not do so. On 15 November 2021, Ms O’Sullivan contacted CSHR for advice on the next steps, she was advised that “PAM assist are offering additional services for those suffering from long covid. Long and post COVID Syndrome CaseManaged Service | DWP intranet. The 16 December 2021 OHS report advice suggested the manager may wish to refer the claimant to the respondent’s Long Covid support. This was overlooked by the manager. On 6 March 2022, the claimant attended her initial assessment at the NHS UCLH Long Covid Clinic. On 16 February 2023, the claimant attended the second appointment at the NHS Long Covid clinic [1266 in the supplementary bundle].[134]The main argument for the claimant was that she could have been referred to the DWP Long Covid Clinic as early as June 2021, when she informed the respondent that she had been diagnosed with Long Covid. By that time, the service had already been launched according to the Long and Post Covid Syndrome Case-Managed Service Guidance [1160] which details the service. The information states that early intervention could provide substantial benefits. The benefits would have included bespoke advice and treatment to aid a return to work. The support would also include assistance with bringing underlying conditions back under control, whilst assessing general health, fitness and psychological health. The claimant argued that the support received would been based on her specific needs to aid her recovery, including the options e.g. to refer to musculoskeletal specialist to assist with her shoulder, back and hip pain, psychotherapist, wellness coach to advise about managing on-going Long Covid symptoms etc. The manager would also receive assistance to understand her work capability and written advice regarding the support and adjustments required at 3 stages of the support, following her assessments. She submitted that had the respondent referred her to their own covid support, on the balance of probabilities she would have been able to return to work in some capacity sooner and/or there would have been clearer guidance on the prospects in respect of her health (at least in terms of covid, if not in terms of the impact of covid on her other disabilities). The Tribunal did not accept the submission as to what was available from the clinic and the conclusions which the claimant sought to draw from the failure to refer her to the clinic. There is no evidence that referral to the DWP’s service would ever realistically have been capable of bringing about or accelerating her return to work. The DWP long covid procedure provides [1163]: “if recovery is not as expected…onward signposting to NHS”. The claimant’s long covid symptoms were very severe and likely would have led to referral to the NHS by the DWP clinic.[135]The claimant had complex medical needs. She was in the NHS system prior to getting covid. The evidence contained in M1-10 showed that the NHS service was overwhelmed. It is not known whether the DWP service was also overwhelmed with referrals. The claimant investigated treatment in a private long covid clinic but was declined because of her pre-existing condition [1137]. The claimant’s medical records show the breadth of the spectrum of treatment the claimant had been receiving from the NHS. Before the December 2021 OH appointment, she had already had bone profile tests [M1/19], thyroid function tests [M1/19] and a chest x-ray [M1/21]. She had gone on to have consultant-led respiratory specialist input from at least January 2022, further thyroid function tests in March 2022 [M2/21], a cardiac MRI scan in April 2022 [M2/3], [M6/5], physiotherapy [M6/1] and endocrinology care [M6/5] from March 2022. Further input coordinated by the NHS long covid clinic then followed in August 2022 [M4/16].[136]She was also being seen by the Enfield Community Post Covid Service [M4/14]. She was discharged from that service at around the time she was dismissed from her employment, her treatment having reached the limit of what could usefully be achieved: “The patient has now been discharged from the Enfield Community Post Covid Service as she has been supplied with all the necessary resources to progress from a Long Covid management point of view but continues to undergo investigations and treatment options with some of the specific post covid related issues she has been left with through UCLH. This has put a glass ceiling on how much progress she could make and as such she has been discharged from our service and can be re-referred in the future if required once all other medical investigations and treatment have been carried out.”[137]Page 406, point 51 (final paragraph), of the Attendance Management Procedures, also mentions: During the coronavirus pandemic, an employee’s medical treatment may have been affected by a reduction in NHS or private services. This may delay the timescales for when you and the employee could have expected a return to work and should be factored into any return to work plan and decisions on managing and supporting the absence.[138]The Tribunal decided that the respondent did treat the claimant unfavourably by dismissing her and by not referring her to the DWP long covid clinic on 11 October 2022 or thereafter (the Tribunal adjusted the issue accordingly) the reason being something arising from her disability, her absence.[139]The Tribunal decided that it was a not proportionate means of achieving a legitimate aim at that stage. Whilst the respondent provided evidence as to the need to have an employee carrying out the duties of the claimant, that need did not override the need to allow the claimant the benefit of its own policy.[140]Notwithstanding referral and treatment by multiple NHS disciplines over a substantial period, there was no material improvement in the claimant’s condition at the material times. It is necessary for the Tribunal to consider what was likely to happen if the claimant had been referred to the DWP long covid clinic on 11 October 2022. In line with the service’s guidance, if there had been a referral to the DWP’s clinic: “At the end of the 6 sessions; or at any time during the program; if significant concerns arise or recovery is not as expected, then onward signposting to the NHS will be recommended.”[141]The Tribunal decided that it was likely the involvement of the DWP long covid clinic would have taken no more than three months and led to no material improvement in the claimant’s health. It was likely that there would have been a referral to the NHS because of the complexity of her case. Involvement with the DWP clinic would have delayed the dismissal by three months.[142]The Tribunal makes no compensatory award for either past or future loss of income. In cases of ill-health, where a tribunal finds that the employment would have continued had the employee not been unfairly dismissed, the appropriate level of compensation is what the claimant would have received on sick leave had they continued to be employed: Royal Bank of Scotland v O’Doherty UKEAT/0307/14 at paras 21-22.[143]The claimant’s pay was reduced to nil on 26 January 2022. She has therefore sustained no loss of earnings unless she can show that she would, in the three months after 28 February 2023, have been fit enough to return to work, and that she would therefore have returned to being paid at some point thereafter. She suggested that she would was able to do “some” work in November or December 2023, at one point suggesting that she could have done four or five days per week. The Tribunal did not accept this evidence. The evidence tends to suggest that she would not have been fit to work within 9 months of the date of her actual dismissal, see the request for a fit note on 27 October 2023 [M2/5] and the tertiary referral letter of 5 January 2024 [M5/3]. But at the earliest, the evidence suggests she has not become fit to work until late December 2024.[144]The Tribunal was satisfied that the claimant’s condition was such that her physical capacity for employment would have been so limited that it was highly unlikely a suitable vacancy would have arisen or could be found even with adjustments. Had she not been dismissed when she was, she would have remained on no pay for the three month period at the end of which she would have been fairly dismissed. Thereafter, she would still have been unable to work for a substantial period. Calculation of compensation Basic award[145]The claimant is entitled to a basic award of £8,714.70. This is more than claimed by the claimant because the claimant’s figure excludes employer’s pension contributions, which the respondent has added. Compensatory award[146]The Tribunal declined to make an award for loss of earnings for the reasons set out earlier.[147]The Tribunal awarded £500 for loss of statutory rights. The Tribunal made no award in respect of the ACAS uplift as the procedural deficiencies were not in the procedure leading to dismissal but related to matters earlier in the chronology.[148]The Tribunal awarded £13,000 for injury to feelings being towards the lower end of the middle band. Interest[149]The Tribunal awarded interest at 8%. In relation to injury to feelings interest is calculated from the date of the act of discrimination which is taken as the date of the failure to refer the claimant to the DWP long covid clinic on 11 October 2022 until 14 March 2025 (date of calculation). This is 885 days. Interest per annum is £1040. The interest per day is £2.85 = £2521.64. Total award[150]Total award is £24,236.34.