Miss A Brown v The Secretary of State for Justice: 3311129/2022

EMPLOYMENT TRIBUNALS

Case No 3311129/2022

Between

Miss A BrownClaimant

The Secretary of State for JusticeRespondent

Before

Employment Judge Graham

Date 4 October 2025

REASONS

[1]ACAS Early Conciliation in this matter took place between 5 July and 15 August 2022. The ET1 was filed on 1 September 2022 in which the Claimant complained of constructive unfair dismissal and disability discrimination. An ET3 was filed on 13 October 2022 resisting the claim.

[2]On 20 February 2023 the Claimant provided a disability impact statement and relied upon the following impairments: i. Depression and anxiety ii. Vitamin B12 deficiency iii. Myalgic Encephalomyelitis (“ME”)

[3]On 6 April 2023 the Respondent conceded that the Claimant was disabled with the following impairments from the specified dates: i. Anxiety/depression – September 2018 ii. Pernicious Anaemia – July 2019 iii. Chronic Fatigue Syndrome (“CFS”) – October 2020

[4]The matter was case managed by Employment Judge Moore at a private preliminary hearing on 17 April 2023. It was identified that the Claimant sought to complain about failure to implement reasonable adjustments, discrimination arising from disability, and constructive unfair dismissal. A list of issues was produced but the substantial disadvantage for the reasonable adjustments complaint was not identified within the list of issues.

[5]The Respondent filed an Amended Response on 31 May 2024 and continued to resist the claim. Permission to file an Amended Response was granted by Employment Judge French on 27 June 2024.

[6]The matter was listed for a final hearing to take place 15-19 July 2024, however that was postponed due to lack of judicial resource.

[7]The matter proceeded to an in person hearing commencing on 22 September 2025. We were provided with a hearing bundle of 232 pages. For the Claimant we were provided with witness statements from the Claimant and her current line manager, Jennifer Chenoufi, and for the Respondent we were provided with a witness statement from Emma Cheal, the Claimant’s former line manager. Ms Chenoufi did not attend as the Respondent agreed her evidence. During the hearing we were provided with an additional document from the Claimant, namely an ME diagnosis document which she had disclosed but which did not find its way into the hearing bundle. It was admitted into evidence.

[8]At the start of this hearing the Respondent confirmed that it had knowledge of disability at the material times.

[9]I clarified the alleged substantial disadvantage with the Claimant at the start of the hearing on 22 September, and I will include this in underline in the list of issues below.

[10]The Respondent’s legitimate aims relied upon for the s. 15 claim were also not captured in the list of issues. I have also included those, again in underline.

[11]We adjourned to read the papers before we then started with the Claimant’s oral evidence at 1pm which was completed that afternoon. During her evidence the Claimant confirmed that she had not been dismissed. I asked the Claimant to confirm that she was no longer pursuing the complaint of constructive unfair dismissal. The Claimant confirmed that she was not, it appeared that this had been a misunderstanding which had not been corrected during the life of the claim. The complaint was subsequently dismissed upon withdrawal.

[12]It was established that there was some overlap within the list of issues pertaining to reasonable adjustments which had also not been clarified until the start of the hearing.

[13]During the first day the Claimant indicated the Tribunal room was a little cold for her. I increased the room temperature to 25º and gave the Claimant permission to appear by video the following day if that made it more comfortable for her. We converted to a hybrid hearing on 23 September as the Claimant accepted that offer, and she cross examined Ms Cheal, and we then heard the Respondent’s oral closing submissions. We converted to a video hearing on 24 September where the Claimant gave her closing submissions orally and in writing.

[14]There were a small number of interruptions during the hearing - a window cleaner appeared outside and cleaned the Tribunal windows; the air conditioning malfunctioned briefly and made a loud noise for approximately three minutes; the television used for the video hearing timed out briefly; and then on 24 September 2025 Mr Howells’ internet connection failed and he had to change connection before resorting to the telephone. Whereas these interruptions were unfortunate, they were brief and did not impact the fairness of the hearing.

[15]The Tribunal deliberated on the afternoon of 24 September, all day on 25 September and briefly on the morning of 26 September. The oral judgment and reasons were handed down at 1pm on 26 September 2025. The Claimant requested these written reasons. We then listed a remedy hearing and undertook general case management for that hearing.

[16]At the start of the hearing, I informed the parties that I had previously been employed by the Respondent’s lawyers, the Government Legal Department, as a Senior Lawyer and Deputy Director up until early 2023, but I had not worked in the Employment Group since late 2019. The Respondent government department had been my client on occasion many years earlier, however I had no knowledge of the prison, nor any of the people involved in this case. I was satisfied that that a fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility of bias on my part1 and I could and should proceed to hear the case. The parties were content for me to hear the claim, and upon my later enquiry they confirmed they had no concerns when we completed the witness evidence and just prior to closing submissions. List of issues 1. Disability1.1 The Respondent accepts that the Claimant was disabled:1.1.1 For the purposes of depression/anxiety from September 2018;

1.1.2 For the purposes of Pernicious Anaemia from July 2019;

1.1.3 For the purposes of chronic fatigue syndrome from October 2020. 1 See Porter v Magill

[2002] 2 AC 357

[103]

1.2 Did the Respondent have actual or constructive knowledge of the Claimant’s disabilities at the time relevant to each claim? [Now conceded] 2. Discrimination arising from disability 2.1 Did the Respondent treat the Claimant unfavourably because of something arising in consequence of her disability?

2.1.1 The instance of unfavourable treatment relied upon by the Claimant is that on 25 April 2022 she was issued with an unsatisfactory attendance warning stage 1 notification (improvement warning).

2.1.2 The Claimant says the “something arising” was being absent on grounds of ill health for 3 periods in 12-months. 2.4 Was the Claimant given the improvement warning because she was absent as alleged in paragraph 2.1.2.? 2.5 If so, did that absence arise in consequence of her disability? 2.6 If so, was the improvement warning a legitimate means of achieving a proportionate aim? 2.7 The Respondent relies upon the legitimate aims of

(i) maintaining a functional and effective workforce;

(ii) efficiently discharging the duties of running the Prison Service;

(iii) managing public money responsibly and efficiently; and

(iv) ensuring fairness between colleagues. 2.8 The Respondent says that the treatment was proportionate in that the first response under the Attendance Management Policy to Claimant’s frequent sickness absence was the invitation to a meeting and the issuance of an improvement warning, steps which were designed to work towards improvements in attendance and which had no immediate or direct effect on the Claimant’s pay or promotion and no other immediate or direct adverse effect. 3. Failure to make reasonable adjustments

3.1 The Claimant relies on the following alleged PCPs: 3.1.1. The Respondent requiring employees doing the particular kind of work done by the Claimant to work from the prison premises all the time. 3.1.2. The Respondent having a sickness policy with trigger points dependent on a certain number of days of absence.

3.2 The Claimant relies on the following alleged physical features of her working environment (as from September 2021):3.2.1 Having no control over the room temperature

3.2.2 Being a further distance from washrooms than before

3.2.3 The working environment being noisier than before

3.2.4 The working environment being accessed by a flight of stairs, and

3.2.5 The working environment being accessed through prison gates. 3.3. Did the PCPs and/or physical features exist as alleged? 3.4 Did they, or any of them, put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison to people who are not disabled? The substantial disadvantage is said to be:

3.4.1 With respect to 3.1.1, the Claimant says she suffers from tiredness due to ME, and needed to drive to work but she says that she had to go off sick when not up to driving in, whereas she says she could have worked from home had she been allowed.

3.4.2 With respect to 3.1.2, the Claimant says that she would reach sickness trigger points sooner than others without her disability.

3.4.3 With respect to 3.2.1, the Claimant says that she struggles to retain body heat due to ME, she could previously control the heat in the portacabin, and this would impact her concentration and brain fog and make her susceptible to sickness, as she could not switch it off or on in the prison.

3.4.4 With respect to 3.2.2, the Claimant says that she is more susceptible to bowel infections and would need access to bathroom, but would have to go through additional gates when needed the bathroom at short notice.

3.4.5 With respect to 3.2.3, the Claimant says that the noise would make it harder to concentrate due to her brain fog.

3.4.6 With respect to 3.2.4 and 3.2.5, the Claimant says that she needs to have frequent breaks, but the new location would make it harder to get outside or take longer, having to go through gates. 3.5 If so, did the Respondent know or could it reasonably have been expected to know the Claimant would be placed at that disadvantage? 3.6 Were there any steps which the Respondent could have taken but did not take to avoid that disadvantage? The Claimant says:

3.6.1 She should have been allowed to work from home when writing up risk reports known as P & As.

3.6.2 The Respondent should have adjusted the trigger points for her under its sickness policy.

3.6.3 The Respondent should have spoken to her prior to changing her place of work in September 2021 (from the portacabin to the prison wing) and/or allowed her to stay in the portacabin or moved her somewhere without the physical features set out above at paragraph 3.2. 3.7 If so, would it have been reasonable for the Respondent to take those steps (or any of them)? 4. Constructive Unfair Dismissal

4.1 Was there a repudiatory breach of contract by the Respondent? In addition to the facts and matters above, the Claimant relies on:4.1.1 Not receiving a response to her appeal against the improvement warning (made 28 April 2022)

4.1.2 The Claimant’s Head of Department (Steve Phillips) not replying to the Claimant’s request (made in June or July 2022) that her request to work from home be taken to the Governor.

4.2 If so, did the Claimant resign in response?

4.3 If so, was the Claimant dismissed?

4.4 If so, was the dismissal for a potentially fair reason?

4.5 If so, was dismissal within the range of reasonable responses?

4.6 Was the procedure adopted by the Respondent – if any – reasonable in the circumstances?

4.7 If the dismissal was for any reason unfair, what are the chances the Claimant would have been fairly dismissed in any event? 5. Jurisdiction 5.1 Are any of the discrimination claims out of time having regard to s.123 EqA?

Findings of fact

[17]From the information and evidence before the Tribunal it made the following findings of fact. We made our findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgment all the evidence which we heard but only our principal findings of fact, those necessary to enable us to reach conclusions on the issues to be decided.

[18]Where it was necessary to resolve conflicting factual accounts, we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based upon their overall consistency and the consistency of accounts given on different occasions when set against any contemporaneous documents. We have not referred to every document we read or were directed or taken to in the findings below, but that does not mean they were not

[19]We record at the outset that both witnesses have given honest and reliable evidence to us and there were few disputes of fact for us to resolve. We further record that the matters in this case occurred a long time ago between 2020 and 2022. The Claimant’s memory of events is clear whereas Ms Cheal, the Respondent’s witness, did suffer on occasion with the inability to recall certain matters. We make clear we have not drawn a negative inference from this – there was no reason to doubt the honesty of either witness.

[20]The Respondent is a government department responsible for prisons and other matters. The Claimant’s employment began in 2018 when she worked at Wayland Prison, however this matter concerns the Claimant’s facilitator role at High Point prison which she commenced in March 2020. The Claimant worked on the Kaizen programme which was a rolling programme for prisoners.

[21]The Claimant’s three disabilities have a number of symptoms, these include fatigue and lower energy levels later in the day, and brain fog. The Claimant has a vitamin B12 and vitamin D deficiency arising out of the pernicious anemia, and the symptoms include extreme tiredness and fatigue, pins and needles, increased risk of viral infections, breathlessness, headaches and feeling faint. The Claimant’s evidence, which we accept, is that when she is sick she may take longer to recover. We found this to be entirely plausible. It was clear from the numerous Occupational Health reports before us that the Claimant was likely to have a higher sickness absence than those without her disabilities.

[22]The Claimant’s role of facilitator was a busy one and Ms Cheal’s unchallenged evidence was that it involved delivering a range of group based interventions which included assessments and group and individual treatments. The majority of the role needed to be undertaken at the prison where the Claimant worked as it involved engaging with prisoners. There were a small number of aspects of the role which were not prisoner facing which in theory could have been completed at a desk elsewhere, such as report writing, however this would have been very difficult to plan for as prisons can be unpredictable environments.

[23]By way of example, a scheduled meeting with a prisoner may not proceed due to changes in the regime or due to lock down days where facilitators cannot access prisoners. There are periods called stand down where the facilitator is not running the programme with the prisoner, however the postholder would still need to be available to deal with issues with prisoners arising in the day, including answering prisoner questions, dealing with prisoner behavioural issues, as well as answering questions from other staff including officers on the wings and other departments. Ms Cheal’s unchallenged evidence was that at the material time there was one facilitator vacancy, there were four new members of staff who needed advice and guidance, which meant it was important for the postholder to be on site.

[24]Whereas psychologists within the team were able to work from home on occasion, they performed very different roles to the facilitators. It was the evidence of both Ms Cheal and the Claimant that it would in any event not have been possible to have performed work off site until late March or April 2022 as the team did not have access to laptops until then anyway, prior to which they used desktops.

[25]The Tribunal gained the impression this was a role which the Claimant enjoyed, there were no performance concerns, and the Claimant was clearly a highly motivated and ambitious member of staff, and she combined this role with bringing up her two young children.

[26]The Respondent operates a flexible hours working scheme which means that staff must attend core hours between 10am and 3:30pm but they may build up flexi-credit by working longer hours, and they may use flexi-time outside of those core hours. The Claimant joined High Point with a deficit in her flexitime due to childcare arising in her previous role. The Respondent allowed the Claimant to leave work earlier on Fridays at 2:30pm in order to pick up her children.

[27]The Respondent also has a comprehensive attendance management policy which commences with informal action before setting out clearly how unsatisfactory attendance should be managed. The policy provides at paragraph 2.45 that attendance is unsatisfactory if an employee’s sickness absence level reaches or exceeds eight working days (pro rata) or four episodes of sickness absence in a rolling 12 month period. This is called the trigger point.

[28]Occasions where an employee goes sick part way through the day do not count towards sickness absence provided they have completed at least half of the working day. These absences are included where the absence continues the following day.

[29]The policy provides guidance on the steps to be followed in conducting a first stage Formal Unsatisfactory Attendance Meeting, the outcome of which may be a first written improvement warning. Where an employee reaches or exceeds their trigger point following that first warning, they may be issued with a final written warning, followed by consideration of downgrade/regrade or dismissal if continued sickness absence can no longer be supported. The policy sets out guidance on when it is not appropriate for a written improvement warning to be given. Paragraph 2.55 provides: “Disability related absences will count towards the trigger calculation, but managers will be able to use their discretion to decide whether to issue employees with a warning. A manager must make sure that reasonable adjustments are considered, such as adjusting the trigger point, variations to working practices or providing specialist equipment for an employee covered by the disability provisions of the Equality Act 2010 to take into account absences that are directly related to that disability. The trigger point may vary for disabled employees where a higher trigger point has been deemed a reasonable adjustment. Where employees exceed the adjusted trigger point warnings may be issued.”

[30]The policy therefore allows for the sickness trigger to be adjusted, and moreover it also provides that a warning is not automatic when an employee is invited to that first stage meeting, the manager still has discretion whether to issue a first written warning.

[31]In addition, once a warning is issued an improvement period is applied during which the employee must aim to meet the attendance standard expected of them, and this lasts three months which can be extended up to six months. The policy mandates that the employee must be informed of the attendance standard they are expected to meet during the improvement period, which will be a proportion of their normal trigger point. Therefore, during a three month improvement period this will be 25% of their annual trigger point.

[32]The Claimant’s role was initially based in a portacabin where the Claimant worked in a small team. This appeared to have worked well as the Claimant was able to control the temperature by use of a heater, she had ready access to a bathroom, and she was able to get outside for breaks swiftly.

[33]The Claimant was managed by the Programme Manager. At one stage this was Judy Shaen-Carter who either left or changed roles at the end of September 2021, before Emma Cheal then managed the Claimant.

[34]On 8 September 2020 the Claimant informed Ms Shaen-Carter by email that she was suffering quite badly with fatigue. During a wellbeing meeting on 6 October 2020 the Claimant again informed Ms Shaen-Carter about her fatigue, suspected ME and chronic fatigue, issues with vitamin B12 and anemia. The Claimant was asked what the Respondent could do to support her to which he said she was not sure, and she was unlikely to ask for help. This became a common feature with the Respondent repeatedly asking if there was anything at work causing the Claimant a problem and asking what she needed, however the Claimant would respond that nothing at work caused her absence, and she did not need anything.

[35]The Claimant said she could not be in an office where there are lots of people and it is loud or busy, but that she did not have to worry about the portacabin as it is quieter and a calmer environment. The Claimant did not indicate that this related to any impairment at the time. The Claimant also referred to having previously been diagnosed with anxiety and depression.

[36]Following a period of sickness absence, the Claimant confirmed during a return to work interview on 19 October 2020 that there were no adjustments which would assist her. The Claimant has been honest and candid throughout her evidence and explained that she will just get sick and there is nothing that anyone can do about that, and she does not know when it will happen save that she will get sick more often than people without her disabilities and it may take her longer to recover. We found that evidence to be entirely plausible. An Occupational Health report of 5 November 2020 noted the Claimant’s vitamin deficiency, it recorded that she was being investigated for chronic fatigue, and it confirmed that there were no adjustments required.

[37]The Claimant accrued further sickness absence on 20 November 2020 and was invited to an informal attendance review with Ms Shaen-Carter which took place on 9 December 2020. The Claimant said that the absence was due to a virus and aches and that the anxiety was a side effect of the vitamin B12 medication. In that meeting the Claimant was asked what support the Respondent could offer, to which she said there was none. An Occupational Health report of 11 December 2020 noted that the Claimant was still off sick, but she would return on 19 December on a phased basis. The notes of the return to work meeting on 21 December 2020 recorded that the Claimant should take breaks and that a phased return had been agreed.

[38]The Claimant accrued further sickness absence during May, June and July 2021. During a return to work meeting on 1 July 2021 the Claimant confirmed that no further support was needed from the Respondent. None of these absences resulted in formal action by the Respondent and we understand that one period of absence in May 2021 was due to the Covid vaccination.

[39]The Claimant accrued further sickness absence in July 2021 due to Covid. During a return to work meeting on 30 July the Claimant explained the symptoms were sinus infections, sore throat and ears, body aches, sore back, and breathlessness. The Claimant agreed that a referral to Occupational Health was not necessary and her evidence to us was that this absence was not related to her disabilities.

[40]Around this time the Claimant would sometimes leave work early due to feeling fatigued. The Respondent did not include these instances of leaving early as part of the Claimant’s sickness absence trigger. It was established during this hearing that the Claimant does not argue that the Respondent should have granted her disability leave for the times where she left work early due to sickness, we therefore make no findings about that but simply record that the Respondent’s sickness absence policy is clear that disability leave is intended for rehabilitation and recuperation, it does not apply to sickness absence itself.

[41]An Occupational Health report dated 8 August 2021 recorded that the Claimant had reported being diagnosed with pernicious anemia causing the vitamin B12 deficiency; she suffered from fatigue and was under investigation for ME/CFS; and she said she was more prone to catching more minor illnesses than normal which may be due to her medical conditions. Occupational Health recommended consideration for working flexibly around the Claimant’s childcare needs, and it recommended adjustments to the Claimant’s flexi-time deficit rather than trying to recoup deficit hours incurred from her previous role.

[42]Occupational Health also recommended consideration of allowing the Claimant a higher sickness absence level before reaching a trigger point. This was the first time it had been recommended. It was suggested that a baseline might be her absence levels over the previous 12 months. The report was sent to the Claimant’s then line manager, Ms Shaen-Carter, however there was no discussion with the Claimant about the contents of this report, nor was there any record that the recommendation about trigger points was ever

[43]We record that a pattern began to emerge of the Claimant going sick, then being referred to Occupational Health, a report being produced, but no little or no action taken in connection with that report, including as a bare minimum holding a meeting with the Claimant to at least discuss the contents. The Claimant has asked in these proceedings what was the point of referring her if nothing was done with the report.

[44]Emma Cheal became the Claimant’s new line manager at the end of September 2021. Ms Cheal had not been a manager before, she received no formal training as a manager, and she did not receive a handover from Ms Shaen-Carter before she left. Ms Cheal was given a team of 18 or so members of staff to manage with only a day’s notice. It did not appear that Ms Cheal has ever received any formal training on managing staff with disabilities which the Tribunal found surprising given the size of the team she was expected to manage. Nevertheless, Ms Cheal had access to the Respondent’s policies which are clearly written and prescriptive, and access to HR advice through the Shared Services Contact Centre as indicated on the Attendance Management Policy.

[45]On 30 September 2021 Steve Phillips (Head of Resourcing) forwarded Ms Cheal an email string between him, Ms Shaen-Carter and Kate Heard (Head of Corporate Services). This had been triggered by Ms Shaen-Carter providing an update on 3 September as she was due to move roles and she set out a very brief history of the OH referrals and advice received.

[46]Within the string on 10 September, Ms Heard summarised she had explained to the Claimant that she should not use flexi-time for periods where she is ill, and that her absences still need to be managed but the Respondent could look to push back her trigger points. Ms Heard copied in HR and also raised the possibility of removing flexible working if there was concern it was being abused. On 29 September HR advice was provided that there could be consideration of converting the Claimant’s flexible hours deficit to disability leave. The HR advice did not address Ms Heard’s comments about potentially looking to put back the Claimant’s trigger points, and the matter was not progressed further.

[47]Towards the end of September 2021, the Claimant’s team were informed that they would move from the portacabin to an office within the prison. This was communicated around two weeks prior to the move on 11 October 2021. The purpose of the move was twofold. One reason was because the space was needed for a larger team of approximately ten people to use in order to accommodate the then social distancing arrangement, whereas the Kaizen team in the portacabin were a smaller group of about 8 staff.

[48]The other reason was because the team within the portacabin had indicated to management that they felt isolated from the rest of their team who sat away from them in the prison, and it was intended that by moving they would be more integrated. Whereas the Claimant now complains about lack of consultation, this is not something she expressed at the time to the Respondent although the Tribunal gained the impression from the Claimant’s evidence that staff were unhappy about lack of prior consultation. Staff were not spoken to individually about their needs prior to the move and this is something which the Claimant remains aggrieved about today.

[49]On 20 October 2021 the Claimant went home sick from work at 12:25pm due to exhaustion. As per the Respondent’s policy, where someone goes home sick after working more than half of the day it was not recorded as sick leave.

[50]On 3 November 2021 Ms Cheal asked HR for advice in managing the Claimant’s sickness absence and she specifically asked how to go about altering her sickness trigger point. The advice from HR was that the triggers are the same for all employees, but should she need to adjust them as an adjustment she should contact SSCL who could alter it. Ms Cheal did not take any steps to do so and she was unable to explain in her oral evidence to us why not. It appeared strange to the Tribunal for a manager to ask for advice on adjusting trigger points following recommendations from Occupational Health, but then not going on to take further action once the process had been explained. The Tribunal was left curious as to why the request for advice had been made in the first place.

[51]The Claimant has given evidence that she spoke to Ms Cheal at some point about extending her trigger points and Ms Cheal told her that it is never done. Ms Cheal does not recall the conversation, and the Claimant cannot recall when it took place as she was not making notes. We have found on the balance of probabilities that this conversation did take place.

[52]Firstly, both witnesses have been entirely honest with us, the Claimant’s memory of these events is better than that of Ms Cheal, and that is understandable as these are matters particular to her whereas Ms Cheal has managed a large team of people for a number of years.

[53]Secondly, during a subsequent attendance meeting Ms Cheal records that the Claimant as saying she knew it was not guaranteed that triggers could be adjusted – this suggested that there had been some sort of previous conversation with someone at some point.

[54]We find it entirely plausible and credible that the Claimant did ask Ms Cheal about the possibility, and that Ms Cheal as a brand new and inexperienced line manager rejected it as alleged. We make it clear we do not find that Ms Cheal has lied nor sought to mislead us, she has been honest and said she cannot remember, and we believe her, but nevertheless we find that the conversation did take place at some point after 30 September 2021.

[55]On 11 November 2021 the Claimant went home sick part way through the day. Ms Cheal asked Mr Phillips for advice as the Claimant had done this in October which she said did not go towards a trigger, and she noted the Claimant had asked for 16 hours to be converted from flexi-time where she had done the same. Ms Cheal subsequently converted some of the Claimant’s earlier flexitime deficit to sickness absence; this sickness absence was historic and no attendance management steps were taken about it. This was a supportive measure to try and bring down the deficit as Occupational Health had suggested and it was one example of the Respondent acting upon Occupational Health recommendations.

[56]Ms Cheal also asked “she has been told that if she works half her hours in a day and she feels unwell and wants to go sick, these will not go on her sick record. How do we manage that? I do not want her starting to do this as a way of getting around the system.” The advice provided was that where someone works more than half their daily contracted hours it will be treated as a full day attendance and not recorded as sickness absence and would not count towards the trigger point for formal action.

[57]The Claimant went sick on the afternoon of 11 November and all day 12 November 2021 due to diarrhea and her chest hurting, and during her return to work interview on 15 November she reported she had also suffered headache and earache. The Claimant said nothing at work caused an impact on her health although it had been cold due to a problem with the heating which appeared from the email to have been an isolated issue. The Claimant was asked if she needed anything from Miss Cheal to which she said there wasn’t. This absence was the first of three absences which triggered formal action later. The Claimant did not raise any concerns about the new office in this meeting.

[58]The Claimant went sick again at 2:30pm on 10 January 2022 and remained off sick that week, returning on 17 January 2022. The absence was for 4.5 days and was the second absence of three which triggered the formal action later. In the return to work meeting the Claimant explained the reason was due to fatigue and then becoming depressed about the situation. The Claimant said that she felt she needed to go back to work so that her mental health did not get any worse. During the meeting the Claimant said that nothing at work had caused an impact on her health but she was becoming concerned about her job and her future. The Claimant made no mention about the office move during this meeting.

[59]Ms Cheal asked the Claimant to bring in the letter confirming her ME diagnosis. We have been provided with a copy of that letter and it confirms that as part of the diagnosis someone would need to meet four of eight symptoms, and in the Claimant’s case she met all eight. These included cognitive problems, recurrent sore throats, unrefreshing sleep, muscle pain, headache and post exertional malaise. Other symptoms included nausea, IBS, clumsiness, thermal regulation, circulatory problems, bladder problems, and visual symptoms. It was also recorded the Claimant could walk around 100 metres.

[60]The Claimant was again referred to Occupational Health and the report dated 1 February 2022 records the symptoms to which we have already referred, it records that the Claimant was fit for her full duties and that the Claimant suffered with the vitamin deficiencies which was managed through medication, and she remained vulnerable to flareups of ME.

[61]It was also recorded: “We do not advise on trigger points or increased number of days as it is for management to decide what levels of absence to tolerate. However, management may wish to take into account as a reasonable adjustment that someone with a known medical condition is likely to have a higher level of sickness absence related to that condition than someone without that condition. Management are alone in being able to decide what acceptable attendance is and what cannot be tolerated even with the application of the Disability legislation that asks for reasonable adjustments.”

[62]This was the second time that Occupational Health had recommended consideration of adjusting the trigger. No action was taken on receipt of that report. A meeting was not held with the Claimant to discuss the contents, and the issue of trigger points was not addressed.

[63]There is no mention within the report of the Claimant raising any concerns about the new office or any impact upon her health from the move.

[64]The Claimant attended a second Occupational Health referral that month and we have been referred to the report dated 15 February 2022. It was unclear why the Claimant was referred a second time only two weeks after the last one. The Claimant still does not know why she was referred and Ms Cheal surprisingly did not know either. In any event the report recorded the Claimant as saying that only four of her recent absences were due to her underlying health conditions with the remainder due to Covid and other infections she was prone to.

[65]Occupational Health recommended: “Given she has health conditions which are likely to result in higher rates of sickness absence compared to unaffected colleagues, management may wish to consider review of her trigger points for sickness absence. Good flexibility is likely to highly beneficial in managing the relapsing/remitting nature of her symptoms, This could include but is not limited to start/finish times, provision to work remotely, workload and schedules. Ability to book Annual Leave at short notice may also be useful.”

[66]The report also recorded that the Claimant’s cognitive function was better in the morning which was when she normally undertakes more cognitive intensive tasks. This was the third time that Occupational Health had made a recommendation with respect to the trigger point.

[67]No action was taken in response to this report nor its recommendations. There was no meeting with the Claimant to discuss the contents, there was no consideration of adjusting the trigger period, and the Tribunal saw the force in the premise of the Claimant’s earlier question of what was the point of repeatedly sending her to Occupational Health if the report was not at least considered and then discussed with her.

[68]The Claimant went off sick again at 1pm on 21 March 2022 and remained off sick for a further four days. The absence was due to sore throat and cold/cough. This was the third absence of three which resulted in formal action being taken. During return to work meeting on 28 March 2022 the Claimant said that nothing at work caused an impact on her health, and Ms Cheal informed her that she would most likely receive a trigger warning to which the Claimant said she had been fully expecting it but was not worried. The Claimant said she knew she may need to see the governor but was okay as last time she saw him he told her he really understood her situation as people in his family had a vitamin deficiency, and he was happy that she was even coming to work.

[69]On 7 April 2022 the Claimant was invited to attend a formal attendance meeting to take place on 19 April. The Claimant was informed that this had been triggered by the three absences occurring on 11 and 12 November, 10 to 16 January, and 22 to 25 March.

[70]Around this time the Claimant accepted an offer for another role she had applied for within the Respondent. The Claimant has not pursued her constructive dismissal complaint as she has accepted in these proceedings that she has not been dismissed.

[71]A formal attendance meeting took place on 19 April 2022. We do not have minutes or notes of that meeting, we have only been provided with a copy of the subsequent warning issued to the Claimant which records that the Claimant’s three absences were discussed with her and Ms Cheal had noted that that there had also been six occasions in that period where the Claimant had reported as sick and left work early without completing a full day.

[72]It was recorded that the Claimant had expressed her hope that her triggers could be adjusted due to her underlying health concerns, but she knew this was not guaranteed to which Ms Cheal had said that whereas the triggers had not been adjusted there had been times where the Claimant had gone home early as sick which had not been included in the trigger dates nor taken off of her timesheet as flexi-time.

[73]The Claimant was cross examined in the hearing about whether the three absences were related to her disability. The Claimant said that she has a weakened immune system, if she gets a cough or a cold it could turn into something worse, she said she had an ear infection which turned into canker sores which took weeks to go away. The Claimant explained that it was the pernicious anemia which gave her the weakened immune system. The Claimant accepted that everyone will get ill but in her case she was more susceptible and it would take her longer to recover.

[74]The Claimant was then questioned about whether absences on a particular day were connected to her disability to which she said that for her it was about looking at the number of absences and comparing them to someone who was not disabled, and she confirmed that her case was that a non-disabled person would have had fewer absences.

[75]Ms Cheal was cross examined about the three periods of absence which triggered the first stage attendance meeting, and she conceded that the Claimant’s absence of four and a half days from 10 January 2022 due to fatigue was potentially due to her disability.

[76]In her witness statement Ms Cheal says that she made the decision not to adjust the trigger point and that she considered the warning to be fair, reasonable and proportionate, considering the need to manage staff levels, provide a consistent and sustainable Programme service, and there was no direct detriment to the Claimant’s pay or promotion prospects, and the warning was designed to work on improving attendance.

[77]We record for completeness that within the return to work interviews it was not recorded that the Claimant’s absence was having a negative impact upon the work of the Respondent, nor has it ever been alleged that the Claimant’s absences were not genuine. In her oral evidence Ms Cheal maintained that she did not consider that an adjustment to the trigger was necessary however she was unable to explain this further.

[78]On 25 April 2022 the Claimant was notified that she would be issued with a stage one unsatisfactory attendance warning to remain in place for 15 months which could be extended to 18 months, it would remain on her record, and it would be taken into account if her attendance did not improve. The Claimant was further advised that she would be subject to an improvement period during which she must not exceed 25% of the standard trigger point which would last for three months and which meant that should she have a further two days or four spells of sickness absence she would be subject to the next stage of the formal process.

[79]The Claimant gave evidence to us that this caused her stress and exacerbated her anxiety because she had the threat hanging over her, she could not control her symptoms, and she was worried that she would be dismissed. We accepted that is how the Claimant genuinely felt at that time.

[80]On 28 April 2022 the Claimant appealed the stage one warning and within her appeal she alleged that the warning was discriminatory and that there had been a failure to comply with Occupational Health advice by not adjusting her trigger points and by not considering allowing her to work from home. The Claimant said that ME was a fluctuating condition, it was unpredictable, and she did not have control of when the symptoms would worsen.

[81]The Claimant complained about the move from the portacabin to the office where she said she could not control the temperature, she could not easily access outside spaces, and this involved having to walk stairs and go through gates to use the bathroom when she may have kidney, stomach, bladder and bowel issues. The Claimant complained that she had not been consulted about the move nor asked how it would effect her disabilities. This was the first occasion the Claimant complained to management about the move from the portacabin. Whereas the Claimant says colleagues discussed the move and were disgruntled, we do not find that the Claimant raised the issue with management until this time. This was also the first occasion that the Claimant raised the issue of home working. The evidence of Claimant and Ms Cheal was that this had not been possible before March or April 2022 as laptops had not been available until then.

[82]The Claimant mentioned the symptoms associated with her disabilities, including fatigue, brain fog, muscle aches, inability to control her body temperature, a lower immune system as well as anxiety depression. The Claimant said the 25% benchmark for future sickness absence increased her anxiety and the stress could cause a flareup in her symptoms which were unpredictable. The Claimant complained about a failure to implement reasonable adjustments for her.

[83]With respect to the move to the new office, the list of issues does not record what substantial disadvantage it is that the Claimant says that this caused her. For reasons unknown it had not been clarified until I asked the Claimant myself at the start of the final hearing, some three years since the ET1 was filed.

[84]With respect to the temperature, the Claimant informed the Tribunal that she struggles to retain body heat due to her ME and previously within the portacabin she could control the heat of the whole room whereas in the office it was controlled centrally in the prison, and this would impact her concentration and brain fog and make her susceptible to sickness. With respect to access to the bathroom, the Claimant said she would need to go through additional gates when she needed the bathroom at short notice. As regards the noise, the Claimant said that it made it harder for her to concentrate due to brain fog. Finally, with respect to the stairs, the Claimant said that she needed frequent breaks, and it would take longer for her to get out for a break from the new office.

[85]The Claimant did not put any of these issues to Ms Cheal during her cross examination nor did she seek to challenge Ms Cheal’s evidence in her witness statement where she said that the new office had more noise as it was in a prison but it was not significant. Ms Cheal also said the temperature fluctuated in every office including the portacabin, and again this was not challenged. Ms Cheal also said that the distance to the bathroom was 10.1 metres from the portacabin and 14.6 metres from the new office. Ms Cheal agreed that the new office would be accessed by a flight of stairs and a gate however she said that she would have to go via these anyway as part of her role when going about the prison to meet prisoners and going out at lunch time.

[86]None of those matters were challenged by the Claimant when Ms Cheal gave her evidence, and we therefore accept that evidence as unchallenged. It appeared to the Tribunal that the Claimant’s main complaint about the move, and the one which she did put to Ms Cheal, was about a lack of individual consultation with her about her needs prior to the move taking place. In any event we record for completeness that Ms Cheal had no knowledge, neither actual nor constructive, of the alleged disadvantages that the Claimant now says that the new office location or its physical features caused her.

[87]On 29 June 2022 the Claimant commenced a further period of sickness substance and she also made a request in writing to Mr Phillips for her to be able to work from home and she explained she had recently had recurrent infections in her ear and canker sores and she asked to work from home when she had reports to complete. The Claimant said it would help so that she could sleep during her lunch if needed and that she was experiencing insomnia and was unable to sleep past 3am which made her fatigue much more difficult.

[88]Mr Phillips asked Ms Cheal for her comments to which she responded on 5 July 2022 that the Claimant did not have reports that she would support being completed at home and that all her current work needed to be completed on site. This was approaching the end of the Claimant’s time within the team and she maintains that there were reports that she could do from home, Ms Cheal’s evidence was that there was not. When asked in oral evidence what work the Claimant was undertaking at that time Ms Cheal was not able to remember.

[89]As part of the Claimant’s appeal there was consideration of the Claimant’s complaints about the office move, and Holly Turner in place of Ms Cheal who was away, indicated that it was to accommodate the other team and also to help with feelings of isolation with the Claimant’s team which would also have been good for her mental health, as well as involving less travel around the prison.

[90]The Claimant’s appeal was subsequently dismissed on 3 August 2022 by the Governor of the Prison, Nigel Smith.

[91]The Claimant transferred to her new role of Probation Service Officer within the Respondent on 11 August 2022 however her last working day was 29 July 2022 as she then went on leave. The issue of working from home was not resolved prior to the Claimant’s transfer to her new role. In her new role the Claimant is not based at a prison, she will still have contact with prisoners, but to a lesser extent.

[92]The Claimant has provided a witness statement from Jennifer Chenoufi who is her line manager in her new team. Ms Chenoufi did not give evidence as the Respondent agreed her statement.

[93]Within her statement Ms Chenoufi says that the Claimant has approached her new role with enthusiasm and dedication; it is common for the Claimant to report feeling tired but she will persevere; there have been approximately five occasions where she has asked to go home early to rest, the remainder of the time she works within the core hours in accordance with the flexible working policy. In her new team the Claimant has been given a Workplace Adjustment Passport which includes a number of adjustments for her including working from home one day per week with the option to do so more frequently; she can use of time off in lieu to leave work or start early when not feeling well; and the Respondent has made an adjustment of her trigger points by 100% in other words doubling the trigger to 16 days rather than 8 days.

[94]Whereas there is some overlap between the Claimant’s new role and her former role, the two roles are very different as the facilitator role was based within a prison which involved frequent contact with prisoners and the need to be available on site to deal with issues which may arise at short notice. Submissions

[95]The Respondent provided brief oral submissions, and we were not referred to any specific legal authorities in those submissions. With respect to the reasonable adjustments complaints, the Respondent argued that the substantial disadvantage had not been made out; it denies that it had knowledge of any substantial disadvantage; and it argued that the Claimant had not shown that any of the absences were disability related. As regards the discrimination arising from disability complaint, the Respondent argued that the stage one warning was not unfavourable treatment arguing that it might very well be if it was issued incorrectly or in a discriminatory way, but where it was properly applied it would not be unfavourable. In any event, the Respondent relied upon the potentially legitimate aims referred to above and maintains that the means adopted were proportionate as the warning was imposed at any early stage with no immediate impact upon the Claimant. Mr Howells said that whereas some of Ms Cheal’s answers to questions were brief, he urged us to take into consideration her witness statement which was more detailed.

[96]The Claimant provided detailed oral and written submissions in which she argued that the Respondent had repeated advice from Occupational Health, she reminded us that Ms Cheal agreed that one absence was potentially disability related, and that the duty to make adjustments was engaged as the Respondent would have been aware that she was more likely to incur sickness absence. The Claimant maintains that the Respondent was aware of the substantial disadvantage she experienced, and that the email forwarded to Ms Cheal would have made her aware of the knowledge that Ms Shaen-Carter had about her impairments.

[97]The Claimant referred us to two first instance tribunal decisions in Kane v Barclays Bank UK Plc Claim 1403210/2019 and Davies v Gloucestershire Health and Care NHS Foundation Trust Claim 1404028/2019 and she argued that these cases demonstrate that ignoring Occupational Health recommendations and failing to consult with disabled employees can amount unlawful discrimination. The Claimant said that Occupational Health advice was never discussed with her, and that she did have a conversation with Ms Cheal about adjusting her triggers, and that the duty to make adjustments involves treating disabled people more favourably. The Claimant said her request to work from home as for disability reasons not for childcare. The Claimant repeats a number of criticisms about the move from the portacabin to the office in the prison and disputes that it was done in order to assist with her mental health. The Claimant maintained that the warning was unfavourable treatment.

[98]The Claimant made reference to direct and indirect discrimination and the Health and Safety At Work Act 1974, as well as a stress risk assessment and DSE assessment/equipment, however these were matters which had not been pursued in this claim.

[99]Neither party addressed us on the issue of whether the complaints had been brought within time.

Law

[100]Neither party addressed the Tribunal on any caselaw save for the two non-binding first instance decisions identified by the Claimant above. I raised the matters of Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

[2019] ICR 230

and Tarbuck v Sainsbury’s Supermarkets Ltd

[2006] IRLR 664

with the parties. I will therefore summarise the general legal principles without referring to specific cases that the parties have not addressed us on, except for those which are so well established that their principles are widely known.

[101]Disability is a protected characteristic under section 6 Equality Act 2010. Section 39(2)(d) Equality Act 2010 provides that an employer must not discriminate against someone by subjecting them to a detriment.

[102]The term “detriment” should be given its broad ordinary meaning, and a detriment will exist if a reasonable worker would or might take the view that the treatment was in all the circumstances to their detriment. Burden of proof

[103]Section 136 of the Equality Act 2010 provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, this does not apply if A shows that A did not contravene the provision.

[104]Although we were not referred to it, very well established guidance on the application of the burden of proof in discrimination complaints was provided in Igen Ltd v Wong

[2005] IRLR 258

: “(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [the protected characteristic], since no discrimination whatsoever is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that [the protected characteristic] was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof....”

[105]It is not sufficient for a claimant to merely to prove facts from which the tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. Rather a claimant must establish a prima facie case of discrimination.

[106]At the first stage the tribunal should take into account all of the relevant evidence from both sides and usually disregard any explanation provided the Respondent. The consideration of the tribunal then moves to the second stage whereby the burden is on the Respondent to prove that it has not committed an act of unlawful discrimination. The Respondent may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If it does not, the tribunal must uphold the discrimination claim.

[107]As regards the “something more” needed to shift the burden of proof onto a Respondent, this will depend upon the facts of each case but it may include evidence of stereotyping and statistical evidence, however mere unreasonable treatment by an employer “casts no light whatsoever” as to the question of whether an employee has been treated unfavourably.

[108]The burden of proof provisions are explained further below with respect to each cause of action. Reasonable adjustments

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

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A 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.

(4) The second requirement is a requirement, where a physical feature 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.”

[110]Section 21 Equality Act 2010 provides: “Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

[111]The Employment Statutory Code of Practice published by the EHRC does not impose legal obligations however it can be used in legal proceedings brought under the Equality Act 2010 which courts and tribunals must be take into account when it appears to them to be relevant to any question arising in proceedings. In the context of reasonable adjustments, paragraph 6.2 of the Code provides that: “The duty to make reasonable adjustments is a cornerstone of the Act and requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers, job applicants and potential job applicants unfavourably and means taking additional steps to which non-disabled workers and applicants are not entitled.”

[112]Although we were not referred to the following authority, the EAT gave guidance in Environment Agency v Rowan

[2008] ICR 218

, on the approach to be taken in reasonable adjustment claims. A Tribunal must first identify: i. the PCP applied by or on behalf of the employer; ii. the identity of non-disabled comparators where appropriate; and iii. the nature and extent of the substantial disadvantage suffered by the Claimant in comparison with those comparators.

[113]Once these matters have been identified then the Tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified.

[114]The burden of proof only shifts in a reasonable adjustments complaint once the Claimant has established not only that the duty to make reasonable adjustments has arisen, but also that there are facts from which it could reasonably be inferred, in the absence of an explanation, that it has been breached.

[115]Therefore, the burden is reversed only once a potential reasonable adjustment has been identified. It will not be in every case that the Claimant would have to provide the detailed adjustment that would have to be made before the burden shifted. The proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, not even until the Tribunal hearing.

[116]It has not been argued by the Respondent that the provisions, criterion, or practices (“PCPs”) relied upon by the Claimant did not exist (or could not amount to PCPs). The term PCP is to be construed broadly, having regard to the statute’s purpose of eliminating discrimination.

[117]A provision can include any contractual or non-contractual provision or policy as well as potentially a one off decision. A criterion means any requirement, pre-requisite, standard, condition or measure applied whether desirable or unconditional. A practice means the employer’s approach to a situation if it does happen or may happen in the future. All that is necessary is a general or habitual approach by the employer.

[118]For the duty to arise, the employee must also be placed at a "substantial disadvantage" in comparison with persons who are not disabled. Therefore, a comparative exercise demonstrating substantial disadvantage is required. Substantial in this context means “more than minor or trivial” according to section 212(1) of the Act.

[119]Whereas we were not referred to it, the issue of substantial disadvantage was considered by Elias LJ in the well known case of Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

, CA where it was held that: “one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able bodied. Of course, if the particular form of disability means that the disabled employee is no more likely to be absent than a non-disabled colleague, there is no disadvantage arising out of the disability. But if the disability leads to disability-related absences which would not be the case with the able bodied, then there is a substantial disadvantage suffered by that category of disabled employees. Thereafter the whole purpose of the section 20 duty is to require the employer to take such steps as may be reasonable, treating the disabled differently than the non-disabled would be treated, in order to remove the disadvantage. The fact that the able bodied are also to some extent disadvantaged by the rule is irrelevant.” [58]

[120]The Tribunal must also be satisfied that the disadvantage would not equally arise in the case of someone without the employee’s disability. There is no requirement in the Equality Act for a strict causation test linking the disadvantage caused by the PCP to the Claimant’s alleged disability. All that is necessary is that the Claimant prove facts from which a tribunal could infer that the PCP simply put the Claimant at either: i. a substantial disadvantage compared to non-disabled people because they are a disabled person (rather than because of the disability); or ii. that because the Claimant was a disabled person, the PCP, whilst causing a disadvantage to everyone whether disabled or not, put the Claimant at a more severe disadvantage because they were a disabled person when compared to non-disabled people.

[121]It is necessary for a reason connected with the employee’s disability to be the cause of the substantial disadvantage experienced. Whether an employee is placed at a substantial disadvantage depends on the actual facts, regardless of what the parties believe the facts to be. The employee does not have to show that the disadvantage arises because of their disability.

[122]The next question is whether there were any reasonable steps which the Respondent could have taken to avoid the disadvantage which were not taken. There is no onus on a disabled person to suggest adjustments. The duty to consider making reasonable adjustments falls on the employer. It is principally for the employer to explore the possibility of reasonable adjustments, not for the employee to suggest them, however if the adjustment to be suggested is wholly exceptional then it is for the employee to advance it. When assessing whether a particular step would have been reasonable, this involves considering whether there was a chance it would have helped overcome the substantial disadvantage, whether it was practicable to take it, the cost of taking it, the employer’s resources and the support available to it.

[123]As to whether an adjustment would be effective, this is a question to be answered on the evidence available at the time the decision was taken whether to implement it. The question whether and to what extent the step would be effective to avoid the disadvantage will always be an important one to weigh in the balance.

[124]In Griffiths it was held that “any modification of, or qualification to, the PCP in question which would or might remove the substantial disadvantage is in principal capable of amounting to a relevant step.” [29] In that case adjusting a trigger period could amount to a step [66 – 67] and further: “No doubt there will be cases where it will be clear that a disabled employee is likely to be subject to limited and only occasional absences. In such a situation, it may be possible to extend the consideration point, as the policy envisages, in a principled and rational way and it may be unreasonable not to do so.” [78]

[125]If the adjustment sought would have had no prospect of removing the substantial disadvantage then it could not amount to a reasonable adjustment. However, if there was a real prospect of removing the disadvantage it may be reasonable.

[126]The question of whether a particular adjustment is reasonable is an objective test and the Tribunal must examine the issue not just from the perspective of the Claimant but all the relevant factors including considering wider implications including the operational objectives of the employer. Ultimately, it is the Tribunal’s view of what is reasonable that matters. In assessing what adjustments are reasonable, the focus must be on the practical result of the steps which the employer can take, not on the thought processes of the employer when considering what steps to take.

[127]A failure to consult does not of itself constitute a failure to make reasonable adjustments - Tarbuck v Sainsbury’s Supermarkets Ltd

[2006] IRLR 664

[71, 72]. Put simply, the duty on the employer is a duty to act rather than simply to consult. Nevertheless, an employer which fails to consult runs the risk that they may fail to identify an adjustment which they could make for a disabled employee.

[128]There is no objective justification defence available in respect of an employer's failure to make reasonable adjustments. The proposed adjustments are either reasonable or they are not. Discrimination arising from disability

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

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

[130]Although we were not referred to it, guidance for Tribunals as to the correct approach to claims of discrimination arising from disability can be found in Pnaiser v NHS England

[2016] IRLR 170

: i. The tribunal must first identify whether there was unfavourable treatment and by whom. ii. The tribunal must determine what caused the impugned treatment, or what was the reason for it. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment. iii. Motives are irrelevant. iv. 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'.

[131]The starting point is that the disability must have the consequence of causing something (the “something arising”) and secondly the treatment alleged to have been unfavourable must have been because of that something arising.

[132]As to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

[2019] ICR 230

held that only a relatively low threshold of disadvantage is being needed. One could answer the question by asking whether the Claimant was in as good a position as others, however the complaint is not made out where a claimant has been treated more favourably but argues they should have been treated more favourably still. A comparator is not required to show unfavourable treatment.

[133]There must be a connection between the unfavourable treatment and the something arising from disability. It is insufficient for the disability itself to be relied upon, it must be the something arising in consequence of disability which is said to be the reason for, or the cause of, the alleged unfavourable treatment. The something arising from disability only needs to be an effective cause of the unfavourable treatment and in other words, the something more must be more than a trivial influence on the treatment. There is no need that the alleged discriminator should have known that the relevant something arose from the employee’s disability.

[134]As regards the second element of causation (“something arising”) this is entirely objective, it follows that if the employee is wrong in thinking that the something which was the reason for the treatment, arises in consequence of their disability, then the claim will fail - the reason for the treatment must be for something arising in consequence of disability.

[135]Where a Claimant proves facts from which the Tribunal could conclude that there was discrimination arising from disability, the burden of proof will then shift to the Respondent to prove a non-discriminatory explanation, or to seek to justify the treatment as a proportionate means of achieving a legitimate aim. The burden of establishing this defence is on the Respondent. What is required is: i. a real need on the part of the Respondent; ii. what it did was appropriate (rationally connected) to achieving its objectives; and iii. that it was no more than was necessary to that end.

[136]It is for a tribunal to make its own judgment as to whether the practice complained of was reasonably justified, and that there is no range of reasonable responses tests. Rather the more serious the disparate impact, the more cogent must be the justification for it. A measure may be appropriate to achieving the aim but to go further than is reasonably necessary in order to do so may make it disproportionate.

[137]It is also appropriate to ask whether a lesser measure could have achieved the employer’s legitimate aim.

[138]A claim for reasonable adjustments is legally distinct from a claim for discrimination arising from disability. Each must be considered separately. Time

[139]Section 123 Equality Act 2010 provides: “123 Time Limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[140]The normal time limit must be adjusted to take into account the early conciliation process and any extensions provided for in section 140B Equality Act 2010. Section 123 does not set out a primary time limit that may be extended, but rather it is a time limit of three months or such other period as the Tribunal considers to be just and equitable. Where the Tribunal decides that a period other than three months is just and equitable, that is the time limit.

[141]As regards conduct extending over a period (which includes the existence or application of a continuing policy) this should be distinguished from a one off act which has continuing consequences. The test to determine whether a complaint was part of an act extending over a period is whether there was an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably.

[142]It is for the claimant to show that it would be just and equitable to extend time. Parliament has chosen to give the Employment Tribunal the widest possible discretion when it comes to extending time, and the Equality Act 2010 does not specify any list of factors to which the Employment Tribunal is instructed to have regard, nevertheless some factors are almost always relevant to consider. These include the length and reasons for the delay; whether the delay has prejudiced the Respondent for example from preventing it from investigating the complaint whilst the matters were fresh; 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 and steps taken by the claimant or their advisor once they knew of the possibility of taking action, including on the claimant’s part their attempts to obtain professional advice.

[143]The failure to put forward a reason for the delay (or a good reason) does not automatically mean that time cannot be extended – rather it means that where an explanation is provided for the delay then it should be Conclusion and decision

[144]Disability has been conceded as has knowledge. The constructive unfair dismissal complaint has been withdrawn and is dismissed. We will start with the reasonable adjustments complaints concerning the physical features (Issue 3.2). We note that the Claimant did not challenge Ms Cheal on any of the specific features of the new office, preferring instead to focus on the alleged lack of consultation prior to the move.

[145]As regards the physical features, Ms Cheal did deal with these in her witness statement and we find that all of those physical features as described in the list of issues were made out. The new office heating was controlled centrally; the bathroom was 14.6 metres away and involved going through at least one more gate; the new office was more noisy than the portacabin but not significantly so; the new office was accessed up a flight of stairs and through prison gates.

[146]As regards a comparator, we find would be an employee without the Claimant’s disabilities who was required to work in the new office.

[147]We are not satisfied that any of these things, either in isolation or in totality, put the Claimant to a substantial disadvantage in comparison with others without her disability. These matters were not put to the Respondent in cross examination, these issues were not raised at the material time, and the Claimant only started to complain about the move generally in her appeal a matter of weeks before she moved roles, and the Claimant was repeatedly asked in her return to work interviews if there was anything the Respondent could do to assist her and she replied no. The Claimant was specifically asked in those meetings if work was the cause of her absence and she replied no. Had these matters put the Claimant to the substantial disadvantage which is now being alleged we would have expected the Claimant to have raised them at the material time, but she did not do so.

[148]The mere fact of not raising it at the time does not of itself mean that the substantial disadvantage was not there, however there is a lack of supporting evidence to substantiate the alleged substantial disadvantage. Our focus at this stage is whether there was a substantial disadvantage, not whether the Claimant raised it. We have found that these issues were not raised in the return to work meetings nor in the Occupational Health assessments which would have been the opportune time to have done so.

[149]We find that the heating was controlled centrally which is normal in prisons and large office premises, and we accept that the Claimant struggles with her own heat regulation, however the only occasion this was raised was when there was a general problem with the heating on one occasion rather than an ongoing issue with the heating. We do not find that the heating arrangements in the new office put the Claimant to a substantial disadvantage.

[150]As regards the washrooms, there was a 14.6 metre walk involved and this would involve going through a gate which is normal in a prison, and again there is a lack of supporting evidence that this put the Claimant to a substantial disadvantage. There was one episode of the Claimant going off sick with diarrhoea. We do not find that the Claimant’s condition was such that she needed immediate access to a bathroom beyond anyone else who would when they have diarrhoea on occasion.

[151]We find the new office was slightly more noisy than the portacabin given it was inside a prison, this would have been a change for the Claimant and her team, and the Claimant would have found it a bit harder to concentrate than before due to her brain fog and fatigue, but it did not appear to us that the disadvantage to her was anything more than trivial because we have not been provided with sufficient contemporaneous evidence of any impact upon her. The Claimant remained silent about it.

[152]Had this been an issue, we are confident the Claimant would have raised it at the time as it would have impacted her work, and as we have observed for ourselves, the Claimant was a hard working and committed member of staff and if this had an impact on her work she would surely have raised it.

[153]The new office was accessed via a flight of stairs and via prison gates, and the Claimant would have had to use stairs and go through gates when performing her role in the portacabin when she went to meet prisoners. It may have taken the Claimant slightly longer to go out for breaks but the Claimant has not explained how much longer it took, she has not told us that she was ever criticised for her the length of her breaks, and she has not persuaded us that any disadvantage to her was more than trivial.

[154]The Claimant has not persuaded us to the level that we need to be, which is on the balance of probabilities, that she was put to a substantial disadvantage due to the physical features of the new office location. That said, even if we are wrong on that and in some way, any or all of the physical features taken together, did amount to a substantial disadvantage, the claim would inevitably have failed due to the Respondent’s lack of actual or constructive knowledge of the same. By the time the Claimant raised the physical features it was just prior to leaving her role and she did so only very generally. The information before the Respondent was insufficient to put it on notice that there may be more than a trivial disadvantage to the Claimant, and therefore the duty was not engaged.

[155]Moreover, the proposed adjustment of speaking to the Claimant about the move could not have amounted to an adjustment on the basis of Tarbuck which is authority for the proposition that the duty on the employer is a duty to act not to consult. The other proposed adjustment of allowing the Claimant to stay in the portacabin or moving her elsewhere would not have been reasonable as the space was needed for a larger team and separating her from her team would have been disruptive and undermined part of the reason for the move which was to reduce the feelings of isolation within the larger team.

[156]Had any of the substantial disadvantage been made out, then allowing the Claimant to have worked from home solely to complete her reports would also not have ameliorated the disadvantage as the Claimant would have still had to be on site for the rest of her duties.

[157]We therefore dismiss all of the complaints with respect to the physical features of the premises at Issue 3.2.

[158]As regards the PCP of requiring employees doing the particular kind of work done by the Claimant to work from the prison premises all the time (Issue 3.1.1), we find that such a PCP existed, and it has not been challenged by the Respondent.

[159]As regards a comparator, we find this would be an employee without the Claimant’s disabilities who was required to come in to the prison to work all of their time.

[160]As to whether this put the Claimant to a substantial disadvantage in connection with her disabilities, this has been a difficult question. The substantial disadvantage was not clarified until I asked at the start of this hearing and the Claimant’s answer was that she suffered tiredness due to her ME, she needed to drive to work and would have to go sick when she was not up to driving to work, whereas she could have worked from home had she been allowed.

[161]We are not satisfied to the level that we need to be that the PCP did put the Claimant to that disadvantage because we have looked at the Claimant’s sickness absences and there was only one period of sickness absence for fatigue brought to our attention and that was where the Claimant went off sick for four and a half days. The Claimant did not express at that time that it was the commute which was part of the issue nor that she was well enough to work from home when she was off sick with fatigue.

[162]The evidence indicates that the Claimant’s fatigue started to impact her from around midday or so most often, and when it became too much for her she would then go off sick. These half day absences were not recorded as sick leave, the Claimant was informed by the Governor not to use her flexitime for sick periods, the flexi-deficit where the Claimant had used flexi-time to leave early was re-classified by Ms Cheal as sickness absence for which the Claimant was not penalised, and the Respondent’s policy mandates that half day sickness absence is not used in the formal process unless it rolls over the following day. We do not find that the Claimant was therefore put to a substantial disadvantage in the way she has expressed.

[163]If we are wrong on that, and the Claimant did experience a substantial disadvantage, then we do not consider that the Respondent had either actual or constructive knowledge of the substantial disadvantage which the Claimant now relies upon. The Claimant continually informed the Respondent that she did not need anything further, and the Claimant only raised the issue of home working prior to leaving the team by which time it was too late to do anything about it.

[164]We would add for completeness that whereas the Respondent has accommodated working from home in the Claimant’s new role, and this appears to be working well, we did not consider that it would have been a reasonable adjustment in any event in her facilitator role. This was a prisoner facing role, the workload in the prison was unpredictable, it would not have been possible to have combined working from home with service delivery in those circumstances, not least because the facilitator needed to be on site to deal with issues which could arise at short notice and because the prison could go into lockdown at any time and therefore disrupt work schedules.

[165]We note that the psychologists were able to work from home on occasion, however their situations very different. Similarly, whereas there is some overlap between the Claimant’s new role where this has been accommodated, it is not a prison based role. For those reasons we find that home working would not have been a reasonable adjustment to have made.

[166]We move on to the PCP of the Respondent having a sickness policy with trigger points dependent on a certain number of days of absence (Issue 3.1.2). The Tribunal found the PCP might be more properly described as the requirement to attend work a certain level in order to avoid receiving attendance warnings, specifically the requirement not to have 8 or more sickness days (or four periods of absence) in a rolling 12 month period.

[167]We also find that the correct comparator is a non-disabled employee subject to the same requirement not to have 8 or more sickness days (or four periods of absence) in a rolling 12 month period.

[168]The Claimant says that she was put to a substantial disadvantage in that she was more likely to have sickness absences than someone without her disabilities, meaning that she would reach the trigger point sooner, placing her at risk of a warning and or dismissal earlier than a non-disabled colleague, and that once the warning was imposed it caused her anxiety as she was worried about accruing further sickness absence which was not in her control thus putting her at risk of losing her job. The Claimant has not argued that a specific sickness absence was disability related, rather she says that she was more likely to be off sick.

[169]The Occupational Health advice repeatedly made the Respondent aware that the Claimant was likely to have more sickness absence due to her disabilities. We have looked at the three instances which triggered the first stage warning. With respect to the 1.5 day absence on 11/12 November 2021 which was for diarrhoea, chest pain, headache and earache, and with respect to the 4.5 day absence for cold, cough and sore throat, these may have been due to the Claimant’s disabilities, but they are also illnesses which are quite normal for someone to suffer from even without the Claimant’s disabilities.

[170]We have not been persuaded to the level that we need to be, which is on the balance of probabilities, that these were disability related. There is no more than a 50% chance that they were disability related, whereas in order for us find that they were disability related we would need to be satisfied that it was more likely than not that they were, and this involves something being more than 50% likely to be the case. It is for he or she who alleges to prove, and in these two instances we are not satisfied based upon the evidence before us, that these were disability related absences as the evidence falls slightly short of that. We further noted the Claimant’s honest and candid admission in her oral evidence that everyone gets sick. It has not therefore been possible for us to find that these were disability related absences.

[171]As regards the absence on 10 January 2022 for 4.5 days due to tiredness and fatigue, we are persuaded that this was related to the Claimant’s disability of CFS/ME as it was one of the clearest and most obvious symptoms of those conditions, and it would be unusual for someone without the Claimant’s disabilities to have an absence for that reason of that length. Ms Cheal accepted in her oral evidence this was potentially due to the Claimant’s diagnosis of chronic fatigue syndrome, and we found the Claimant’s evidence that this was related that condition to be credible and plausible.

[172]The Respondent had knowledge of this condition not simply since it was informed of the formal diagnosis in January 2022, but as far as back as September 2020 when the Claimant told Ms Shaen-Carter that she suffered from fatigue. The Claimant mentioned these symptoms and that she was under investigation for ME and CFS repeatedly in her return to work meetings, and it was repeatedly mentioned in the numerous pieces of Occupational Health advice.

[173]This disability related absence formed part of the reason why the Claimant was invited to the first stage attendance meeting and why she received the subsequent first stage warning, with the imposition of an improvement period and potential to move to the next stage in the process with the ultimate risk of dismissal.

[174]We therefore ask ourselves the question of whether the PCP put the Claimant at a substantial disadvantage in comparison with those subject to that PCP but without her disabilities. We were not referred to the judgment in Griffiths by either party, nevertheless the judgment is well known and it is relevant. That was a case where that claimant was subject to an 8 day trigger period and was dismissed as they had exceeded that trigger, having accrued sickness absence of 66 days of which 62 were disability related. At paragraph 58 Elias LJ addressed the situation where a disabled employee reaches a trigger period sooner than a non-disabled comparator due to their disability and found that the operation of the trigger in those circumstances could amount to a substantial disadvantage.

[175]We therefore find that the answer to the question is yes, the PCP did put the Claimant to a more than minor or trivial disadvantage. The reason is clear. The Claimant had reached the 12 month trigger period of 8 days or more sickness absence within a 5 month period, she got there far quicker than a colleague without her disabilities would have. The policy bit harder on the Claimant than it would have done to those without her disabilities because she was far more likely to be off sick than they were.

[176]The Claimant suffered the further disadvantage of her anxiety increasing due to the imposition of that warning and the risk of a future warning and potentially dismissal. Whereas that remained some time away, there was a real risk of the Claimant breaching the improvement period target not to have absence of 2 or more days within the next quarter, and this put her at an increased risk of being invited to a final hearing where she might be downgraded or dismissed. This caused the Claimant anxiety. The imposition of warning on any member of staff would likely cause them anxiety, but in the Claimant’s case the risk of dismissal was greater.

[177]The Respondent had actual knowledge of the substantial disadvantage as it was clearly set out in the Occupational Health advice of 8 August 2021 and also 1 and 15 February 2022 that the Claimant was likely to accrue sickness absence greater than others without her disabilities. The Respondent had repeated knowledge and Occupational Health could not have made it clearer. The fact that on 3 November 2021 Ms Cheal enquired about how to adjust triggers also indicates she understood this to be the case, as did Ms Heard who had raised the possibility of adjusting them on 10 September 2021. We are therefore satisfied that the Respondent had actual knowledge of the substantial disadvantage to the Claimant arising from the application of the PCP.

[178]We have then looked to see what steps the Respondent might reasonably have taken to ameliorate that disadvantage. We have asked the Claimant, although we note that it is not for a claimant to say what adjustments ought to have been made, but it is of assistance if a claimant can assist us in that regard. The facts of this case are unique in so much as the Claimant remains employed by the Respondent in another team which has made the adjustment to that PCP of 100%, in other words, doubling the trigger period. The Claimant says that the Respondent ought to have made that adjustment for her in her previous role.

[179]Again we turn to the judgment in Griffiths at paragraphs 66 and 67. In that case Elias LJ held that adjusting the trigger period could amount to a step which could ameliorate the disadvantage resulting from the operation of the policy. It was held that would reduce the risk of dismissal for further absences or at least it would delay it or make it less likely that the claimant would receive a warning in future. It was relevant in that case that the policy itself envisaged that this might be an appropriate step for the employer to take as respect to disabled employees.

[180]We have looked at this closely. We have looked to see whether that would have a real prospect of removing the disadvantage to the Claimant, and then if so, we have asked ourselves whether it would have been a reasonable step to have taken.

[181]Based upon the Claimant’s pattern of sickness absence at that time, noting the small number of absences including the small amount of disability related absence, it appeared to the Tribunal that the adjustment to the trigger period as suggested by the Claimant would have the effect of either removing the substantial disadvantage to her, or at least would have minimised the risk of incurring warnings under the attendance management policy and either avoided or considerably delayed the potential for a dismissal. The proposed adjustment had a real prospect of ameliorating that disadvantage and as a result it would have minimised her anxiety caused by the threat of formal action.

[182]As to whether the adjustment was a reasonable one to make, we put out of our minds the fact that the new team has been able to grant it as the Claimant performs a different role in a different team with some overlap in functions but they are nevertheless very different roles.

[183]We have considered the issue of reasonableness in all the circumstances including the burden it might have imposed on the Respondent. We note that the Claimant’s absence to date had not had any particular or obvious negative impact upon the Respondent, Ms Cheal did not give any evidence about what impact the absences might have or what prejudice the greater trigger may have caused. It did not appear that the absences had impacted service delivery to a great extent, these were short and sporadic absences which did not appear to have caused significant disruption.

[184]We are therefore satisfied that the proposed adjustment of doubling the trigger period to 16 days would have had a real prospect of removing the disadvantage, and it was a reasonable one to have taken. In our view the Respondent knew of the substantial disadvantage to the Claimant from the Occupational Health reports at least from 8 August 2021 and it ought to have turned its mind to considering the trigger periods at those times, and moreover it ought to have made an adjustment to the trigger period by the time of the first stage attendance meeting on 19 April 2022. The Respondent failed to do so.

[185]We have therefore identified the relevant PCP; we have identified that the PCP put the Claimant to a substantial disadvantage; we have identified a step which had a real prospect of ameliorating that disadvantage; and we have found that it would have been a reasonable one to have taken. The burden of proof has shifted to the Respondent however it has not discharged that burden and accordingly, the complaint of failure to implement reasonable adjustments at Issue 3.1.2 therefore succeeds. Discrimination arising from disability

[186]We move on to consider the complaint of discrimination arising from disability at Issue 2.1. The first issue to resolve is whether the Claimant was subjected to unfavourable treatment. The Claimant relies upon the warning of 25 April 2022. Mr Howells admirably tried to persuade us that this was not unfavourable treatment as he said it might very well be if it was issued incorrectly or in a discriminatory way, but where it was properly applied it would not be unfavourable. We disagree as that appears to conflate unfavourable treatment with justification.

[187]Only a low level of disadvantage is required in order to amount to unfavourable treatment. The imposition of this warning was a detriment to the Claimant, it subjected her to an improvement period which she had a risk of breaching, it put her at risk of future formal action, and it exposed her to the eventual risk of a downgrade or dismissal, and this caused the Claimant anxiety and fear for her job. It was quite clearly unfavourable treatment.

[188]We move on and we ask whether the unfavourable treatment was because of something arising in consequence of the Claimant’s disability. We find that it was. The warning was applied because of the Claimant’s sickness absence and we find that the absence for fatigue in January 2022 was one of the reasons for the imposition of that warning. But for that absence the Claimant would not have breached that trigger, it was not a minor nor an insignificant nor trivial influence on the decision to issue her with a warning. Accordingly this was unfavourable treatment because of something arising in consequence of the Claimant’s disability.

[189]We move on to the issue of justification, and ask whether the improvement warning was a proportionate means of achieving a legitimate aim. The aims relied upon are(i) maintaining a functional and effective workforce;

(ii) efficiently discharging the duties of running the Prison Service;

(iii) managing public money responsibly and efficiently; and

(iv) ensuring fairness between colleagues.

[190]Whereas all of these matters are potentially legitimate aims, however with respect to ensuring fairness between colleagues, it is to be noted that where a worker is disabled the duty to make adjustments for them by its very nature involves treating them more favourably than might otherwise be the case – this is clear in the EHRC Code of Practice on Employment at paragraph 6.2. Within the context of discrimination arising from disability, it is clear from the case of Griffiths that section 15 Equality Act 2010 is focussed upon making allowances for disability.

[191]Nevertheless, we find that all of these aims are legitimate ones.

[192]As to whether the means adopted were proportionate, the Respondent says that the first response under the Attendance Management Policy to Claimant’s frequent sickness absence was the invitation to a meeting and the issuance of an improvement warning, steps which were designed to work towards improvements in attendance and which had no immediate or direct effect on the Claimant’s pay or promotion, and no other immediate or direct adverse effect. We disagree.

[193]The Claimant gave convincing evidence that the disability related absences cannot be controlled, she will get ill, she will become fatigued, and these are known symptoms of her disabilities. The imposition of the warning did have an immediate and a direct adverse effect on the Claimant as she was put on the road towards a final warning if she had 2 more days sickness absence in the improvement period, it put the Claimant on the road to potential downgrade or dismissal, it went on the Claimant’s file, and she says it caused her anxiety of losing her job and we accepted that is how she genuinely felt at the time.

[194]We find that the means adopted were not proportionate in all the circumstances, the Claimant’s low levels of absence did not have a significant detrimental impact upon her team (which was a large team); nor a detrimental impact on service delivery; the Respondent could have looked at the trigger periods when repeatedly recommended to do so by Occupational Health; and it could have either adjusted the trigger in advance of the first stage attendance meeting and avoided that taking place at all, or it could have applied its own policy at paragraph 2.55 and decided not to impose the first stage warning when it did. These options were available to Ms Cheal as they were clearly set out in the policy, they were there to be utilised and HR had even advised how it could be done but this was not advanced.

[195]We find that a far more proportionate response would have been for the Respondent to have complied with its own attendance management policy (and repeated Occupational Health advice) and considered an adjusted trigger period (potentially up to 100%) and not imposed that first stage warning and improvement period until the Claimant had then met that extended trigger. This would have had a far less disparate impact upon the Claimant, but it would still have enabled the Respondent to meet those legitimate aims had the sickness absence continued to remain unacceptable and reached a trigger point which had been adjusted in order to comply with the legal duty to make reasonable adjustments for a disabled employee.

[196]We have therefore identified unfavourable treatment because of something arising in consequences of the Claimant’s disability, we have found that the Respondent had a number of legitimate aims, however the means adopted were not proportionate. The burden of proof has shifted to the Respondent, however the Respondent has failed to discharge that burden, and therefore the complaint under s. 15 Equality Act 2010 succeeds in full. Time

[197]Neither party has addressed us on the issue of time however we find that the complaints which succeeded were brought within the time limit within section 123 Equality Act 2010. The warning was issued on 25 April 2022; the Claimant’s appeal was not determined until on or around 3 August 2022 and the claim was then lodged on 1 September 2022. The claim was therefore brought within three months (plus ACAS Early Conciliation) of the confirmation of that warning and in any event, we find that the claim was brought within a period which in the Tribunal considered to be just and equitable for it to have considered the claim. Additional matters

[198]The Tribunal expressed its gratitude to the Claimant and to Mr Howells for their valuable assistance during the hearing, and the manner in which they cooperated in furtherance of the Overriding Objective of the Tribunal. A remedy hearing will take place on 25 November 2025. Approved by: CERTIFICATE OF CORRECTION Under Rule 67, the