Mr N LaurentClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge E DaveyIn person for claimantDate 16 May 2025
JUDGMENT
[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.[3]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.[4]The remedy hearing listed for 9 July 2025 is vacated.
REASONS
[1]By a claim form presented on 22 November 2023, following a period of early conciliation between 6 October 2023 and 17 November 2023, the claimant brought complaints for unfair dismissal, discrimination arising from disability, failure to make reasonable adjustments and pay claims. The respondent defended these complaints. At a preliminary hearing dated 27 June 2024, the pay claims were dismissed upon withdrawal.[2]The claimant was employed by the respondent, at Heathrow Worldwide Distribution Centre as an occupational postal grade (OPG) from 27 October 2014 until 29 September 2023. The respondent operates an attendance policy and the claimant was dismissed for poor attendance which the respondent says was a dismissal for some other substantial reason. The claimant’s case is that the respondent should have deferred its decision about dismissal and/or given him another chance for his attendance to improve and obtained occupational health advice following his disclosure that he has autism spectrum disorder (ASD) at the consideration for dismissal meeting. The respondent’s position was that the claimant’s absences were not disability related and it applied a fair procedure by following its attendance policy and procedure prior to its decision to dismiss the claimant.[3]The respondent conceded the claimant is a disabled person with reference to his ASD. Initially, it did not concede knowledge at the material time though Mr Edwards confirmed during this hearing that the respondent’s position was that it had knowledge of disability from the consideration of dismissal meeting on 14 July 2023. Preliminary issues[4]At the start of the hearing, the Tribunal dealt with two preliminary applications from the claimant. The claimant made an application for strike out of the respondent’s response under Rule 38(1)(a) Employment Tribunal Procedure Rules 2024 or if that application was dismissed, for specific disclosure of documents and statements from named individuals employed by the respondent. These applications were dismissed. Oral reasons were provided at the hearing and will not be repeated here. A separate judgment has been issued with reference to the strike out application.[5]The Tribunal also considered whether the response should be struck out, or in the alternative, whether to allow the respondent to rely on its witness evidence, in part or in full, due to non-simultaneous exchange of witness statements due to the respondent’s failure to comply with case management orders. Having heard representations from both parties, the Tribunal decided not to strike out the response and allowed the respondent to rely on it witness evidence in full. Oral reasons for this decision were provided at the hearing and will not be repeated here.[6]The claimant had some difficulty with the sound quality on his device on day one of the hearing. This was understandable, as the hearing was converted from an in-person to a video hearing on 4 April 2025. The Tribunal adjourned for the rest of the day on 7 April to review the evidence and give the claimant the opportunity to resolve his IT issues, which he did.
Evidence
[7]The Tribunal had a trial bundle totalling 239 pages. The claimant also provided an 11 page undated ASD assessment report on day three of the hearing. This report was based on assessments on 16 February 2021 and 10 and 16 March 2021.a. There were four witness statements and we heard oral evidence from three of these witnesses as set out below. a. For the claimant: i. Mr Norman Laurent (the claimant) ii. Mr Paul Garraway (CWU representative during the appeal hearing).b. For the respondent: i. Ms Sue Knight-Smith (appeal manager for the respondent).c. We explained, with reference to the claimant’s witness, Mr Manpreet Narang, that as Mr Narang did not attend the hearing to provide oral evidence, we could only attach limited weight to his witness statement.
The issues
[8]The issues for the Tribunal to decide were agreed at the case management preliminary hearing dated 27 June 2024, are set out as sub-headings below in our “discussions and conclusions” section and are provided as an annex to this judgment.
Findings of fact
[9]The relevant facts are set out below. Where we have had to resolve any conflict of evidence, we indicate how we have done so at the material point. Most of the factual issues were not disputed. Where we have referred to evidence in the bundle, we have included the relevant page number.[10]As detailed in the 2021, 11 page assessment for ASD, the claimant was diagnosed with ASD in March 2021 following a referral for an assessment in 2019.[11]The respondent has a universal service obligations (USO) which requires it to operate at a fixed price to any destination in the UK and deliver letters and parcels within fixed time frames. The respondent’s Attendance Agreement[12]The respondent operates an attendance policy and procedure entitled the “Attendance Agreement” (and referred to going forward as the Attendance Agreement). The Attendance Agreement was last agreed with the Communication Workers Union (CWU) and Unite the Union in April 2017 (52 and 54). The Attendance Agreement separates its procedure for short term and long term sickness absence. The Attendance Agreement details that following sickness absence, there will be a welcome back meeting (57), sets out the procedure that will be followed if employees do not meet the attendance standards (58) and sets out the minimum attendance requirements (61). These are:a. If an employee has four separate absences or 14 days absence in a 12 month period, it will trigger a prompt for an attendance review at stage one. This may be followed with a formal meeting (attendance review one meeting) and may result in the respondent issuing an attendance review one notification (AR1). The employee has no right of appeal.b. Following the AR1, if an employee has two separate absences or 10 days absence in a six month period following the issue of the AR1, it will trigger a prompt for an attendance review at stage two. This may be followed with a formal meeting (attendance review two meeting) and may result in the respondent issuing an attendance review two notification (AR2). The employee has no right of appeal.c. Following the AR2, if an employee has two separate absences or 10 days absence in a six month period following the issue of an AR2, it will trigger a prompt of consideration of dismissal. This may be followed with a formal meeting (consideration of dismissal meeting) and may result in the respondent dismissing the employee for unsatisfactory attendance. The employee can appeal the decision to dismiss.d. An appeal of the decision to dismiss will be heard by an independent appeal manager.[13]There is discretion with reference to the application of the Attendance Agreement and managers may or may not decide whether to hold meetings, issue formal notifications and/or dismiss an employee. An employee has a right to be accompanied by a trade union representative at all stages of the above process.[14]The Attendance Agreement makes provision for disability related absences which are usually discounted (91). The claimant’s attendance[15]It was not disputed that the claimant has a history of frequent absences. In 2016 he took 35 days off sick, in 2017 he took 29 days off sick, in 2018 he took 17 days off sick, in 2019 he took 18 days off sick, in 2020 he took 28 days off sick plus 14 days off sick with covid 19 which were discounted, in 2021 he took 13 days off sick plus seven days off sick with covid 19 which were discounted, in 2022 he took 33 days off sick and in 2023 he took 33 days off sick.[16]The claimant also took a number of part days off sick, which did not usually count for the purpose of the Attendance Agreement unless part day absences had become excessive, whereby they could count for the purposes of counting days with reference to the attendance review procedure described above (56). Prior to the procedure that led to the claimant’s dismissal, his attendance had prompted several attendance reviews, some of which resulted in formal notifications under both AR1 and AR2. There were different reasons for the claimant’s sickness absence including headache, dizziness, stomach upset, sore throat and wrist and knee pain. It was common ground that the reasons provided for the absences were genuine. Attendance review one[17]There was a consideration of dismissal prompt issued on 11 January 2022 (155). By a letter dated 2 February 2022, Mr Gary Cox notified the claimant that the system had prompted an attendance review but he decided not to start that process due to one absence being Covid 19 linked. He goes on to set out the attendance standards that need to be met to avoid further action (158).[18]An AR2 meeting was prompted on 23 May 2022 because the claimant had six absences totalling 23 days (155). The claimant took three days sickness absence between 5 and 7 January 2022 due to a cold, nine days between 28 February 2022 and 8 March 2023 due to a wrist injury, five days between 4 and 8 April 2022 due to a knee injury and six days between 17 and 22 May 2022 due to a sore throat (151). A part day on 25 March 2023, due to a fever was also counted, though later discounted (151).[19]On 17 June 2022, the claimant attended the AR2 meeting and was accompanied by a CWU representative. Mr Selman made the decision not to issue an AR2 but to reissue an AR1 due to management delays and concerns that the claimant did not realise that any part day absences would be treated as full day absences following the issue of an AR2 on 2 July 2021 (165). The AR1 was reissued on 23 June 2022 and notified the claimant if he had two more periods of absence or 10 days of absences within 6 months following the issue of the letter it would prompt a stage two absence review (165).[20]It was common ground that the claimant did not take any part day absences after the meeting on 17 June 2022 (151). Attendance review two[21]The claimant was invited to an AR2 meeting on 22 March 2023, this followed a AR2 prompt on 29 December 2022 (155). The claimant prompted the AR2 by taking 10 days sickness absence between 17 and 21 October 2022 due to pain in his limbs and between 19 and 23 December 2022 due to a knee injury. Before the AR2 meeting on 22 March 2023, the claimant took sickness absence between 23 and 28 January 2023 for flu like symptoms, between 2 and 12 February 2023 for limb pain and between 9 and 15 March 2023 for a cough. The claimant was not accompanied by a CWU representative at this meeting albeit the invite letter dated 16 March 2023, confirmed he could take a trade union representative (167). It was common ground the meeting lasted for about 10 minutes. During this meeting, the claimant was asked if any of his absences were covered by the Equality Act 2010 and he said they were not. The claimant told the Tribunal that at this stage, he did not know what this meant and the Tribunal accepted this.[22]Following the meeting on 22 March 2023, the claimant was issued with an AR2 notification also dated 22 March 2023, informing him that if he took two periods of absence or 10 days off within 6 months following the notification, it would prompt a consideration of dismissal. The claimant told the Tribunal he did not realise he had been issued with an AR2 notification following this meeting, which he said was rushed. Consideration of dismissal[23]The claimant was invited to a consideration of dismissal meeting on 4 July 2023 (176). This followed a consideration of dismissal prompt on 16 May 2023 (155). The claimant prompted the consideration of dismissal due to taking sickness absence between 28 and 31 March 2023 due to dizziness and between 12 and 14 May 2023 due to stomach upset. Prior to the consideration of dismissal meeting on 14 July 2023, the claimant took a further seven days sickness absence between 18-24 May 2023 for a wrist injury.[24]The claimant attended a telephone occupational health assessment with Dr Muhammud Baig on 26 June 2023. He discussed his various periods of sickness absence in 2022 and 2023 and that he had high blood pressure. Dr Baig stated that in his opinion, he did not think the claimant was covered by the Equality Act 2010, presumably as someone with a disability. It was common ground that the claimant did not tell Dr Baig about his ASD diagnosis. He told the Tribunal he did not think it was relevant at the time of the occupational health assessment.[25]The claimant attended the consideration of dismissal meeting on 14 July 2023. The meeting was conducted by Mr Alan Butcher, section lead. The claimant was accompanied by his CWU representative, Mr Gurmeet Virk, the area CWU representative. Prior to this meeting, the claimant disclosed to Mr Virk that he had ASD. Mr Virk advised him to disclose this to Mr Butcher. During the meeting, the claimant was asked if there were any mitigating circumstances. The claimant told Mr Butcher he had high blood pressure which was well controlled, that he had broken up with his girlfriend, that he thought his wrist injury was work related and that he had ASD.[26]During the consideration of dismissal meeting, the claimant was asked by Mr Butcher whether the ASD impacted on his absences and he said ‘I can’t say. May or may not have had an effect. My high blood pressure may have affected them but it is controlled. Maybe it was higher at times.’ He was asked if he discussed the ASD in the occupational health assessment and he confirmed he did not and when asked why not said he did not see it as a condition until Mr Virk and Parmjit (another CWU representative) raised it. The claimant suggested Mr Butcher does some research about ASD (180).[27]Mr Butcher asked the claimant ‘have you been aware of and understood all of the attendance standards throughout this attendance process?’ The claimant responded with ‘Yes, would you like proof of my spectrum disorder’. Mr Butcher stated he would take his word for it and look it up (182). Towards the end of the meeting, Mr Butcher agreed the claimant provide him with evidence of ASD (184).[28]The claimant told the Tribunal that he did not think it was a requirement to mention his ASD prior to the consideration of dismissal meeting, that he did this on the advice of his CWU representatives because he thought it was mitigation and that he realises he should have mentioned it earlier but did not appreciate that at the time. He also told the Tribunal he did not think it was a requirement to let OH Assist (the respondent’s occupational health provider) know about his ASD diagnosis, albeit he did mention his high blood pressure, not detailed as a reason for absences either.[29]During this meeting, the claimant also raised that his absence for seven days between 18 and 24 May 2023, for wrist injury, was due to the amount of bag closing he did at work. He went on to say he had been using his laptop for three hours at home watching YouTube and then using the computer at work prior to this (181).[30]The notes of the consideration of dismissal meeting are signed by the parties as correct (184).[31]The claimant told the Tribunal that within the week following the consideration of dismissal hearing he supplied a copy of the ASD assessment letter to Mr Butcher, that Mr Butcher looked through the assessment letter but did not read it in detail, that Mr Butcher did not take a copy and handed it back to the claimant. This meeting lasted about 25 minutes. The fact of this meeting or that the claimant supplied a copy of his ASD assessment letter was not disputed by the respondent. The Tribunal accepted this evidence. Dismissal[32]By a letter dated 27 July 2023, Mr Butcher made the decision to dismiss the claimant with notice for unsatisfactory attendance (185). The claimant’s notice period was eight weeks. Mr Butcher confirmed in this letter that the claimant had supplied him with the ASD assessment letter and that he had not disclosed this condition before the meeting (186). Mr Butcher concluded that none of the claimant’s absences were linked to ASD. Mr Butcher also concluded that the claimant’s absence for wrist injury was not work related (186). Mr Butcher also concluded that the claimant had not provided any evidence to support the break-up with his girlfriend and his high blood pressure had contributed to his absences. Therefore, Mr Butcher concluded that none of the absences should be discounted for mitigating reasons. Mr Butcher also relied on the claimant’s confirmation that he had understood the application of the attendance agreement (186). All the claimant’s absences were therefore counted when Mr Butcher reached his decision to dismiss. The appeal[33]By an undated letter received by the respondent on 10 August 2024, the claimant appealed the dismissal (188). The claimant mentioned his diagnosis of ASD, that he was expecting a call from OH Assist which never happened and that ASD is covered under the Equality Act 2010 (EqA). The claimant also raised that he had high blood pressure and the injury to his wrist was work based and not due to computer use. He also referenced he should have been offered training in dispatch. The claimant stated future poor attendance is not predictable and he has not been given the opportunity to improve.[34]By a letter dated15 August 2023, Ms Sue Knight-Smith wrote to the claimant to say she was managing the appeal and explained the process (189). The meeting was scheduled for 23 August 2023. Ms Knight-Smith shared and agreed a bundle of evidence with the claimant and his CWU representative, Mr Paul Garraway (193).[35]The appeal meeting took place on 23 August 2023 with Ms Knight-Smith, Mr Garraway and the claimant (200). The claimant told Ms Knight-Smith his ASD should have been considered in relation to his absences (201). Mr Garraway’s position, on behalf of the claimant, was that the absences themselves were not disability related, but due to his ASD, the claimant had not understood the process. He used the example of Mr Selman explaining to the claimant about part day absences counting in the claimant’s case from 15 October 2021, due to his frequent absences which resulted in the claimant taking no further part day absences. Mr Garraway put this down to a thorough explanation of the consequences of not complying with the Attendance Agreement, which he said had been lacking during the AR2 meeting with Mr Justice Daniels on 22 March 2023.[36]Mr Garraway argued there had been confusion about the process with reference to the AR1 and AR2 process in 2022 (202). He also raised the AR2 notes from the meeting on 22 March 2023, were virtually non-existent and even though the claimant’s attendance had triggered formal meetings, many had not happened (202). Mr Garraway stated on several occasions that the impact of the ASD was with reference to the process not the reason for the absences and there had been no further OH Assist referral after the claimant’s disclosure of ASD. The claimant said he did not realise he was on AR2 (203) following the meeting on 22 March 2023. He also stated that he had been passed around lots of managers (204).[37]The notes of the appeal were amended by the claimant and Mr Garraway and agreed by Ms Knight-Smith (200-204).[38]In his evidence to the Tribunal, Mr Garraway acknowledges the ASD assessment letter was not included in the dismissal appeal bundle and he only noticed that during this hearing. He went on to say that Ms Knight-Smith did not challenge the diagnosis of ASD. Mr Garaway reiterated his evidence during the appeal hearing. When the Tribunal asked whether he had discussed with the claimant his understanding of the application of the Attendance Agreement he said he had not and that he had assumed it from the evidence. Dismissal of the appeal[39]By a letter dated 19 September 2023, Ms Knight-Smith dismissed the appeal and upheld the decision to dismiss (208). The decision letter was accompanied by a report setting out the history of absences during the attendance procedure. Ms Knight-Smith acknowledged the claimant has ASD though goes on to say that she could see no link between the nature of the absences and the claimant’s ASD. Ms Knight-Smith’s position with reference to the claimant’s understanding of the Attendance Agreement and related procedure was that as the absences were accepted to be genuine, they would have occurred irrespective of the ASD, so regardless of this position, he would have triggered the attendance procedure prompts. She goes on to say that the claimant had failed to maintain satisfactory attendance for some time and she was not confident his attendance would improve in the future.[40]Ms Knight-Smith told the Tribunal she did not see the assessment report until this hearing but accepted the claimant had ASD and that she accepted this was a disability and that was her position at the appeal hearing. Her consistent evidence to the Tribunal was that her reason for dismissing the appeal was because in her opinion and based on the evidence, the claimant’s absences, which she accepted were for the reasons stated and genuine, were not disability related and that irrespective of whether the claimant understood the process or not, this would not have changed as the claimant would still have failed to meet the respondent’s attendance standards. OH Assist[41]The claimant told the Tribunal that during the consideration of dismissal meeting, Mr Butcher promised to refer him to OH Assist and failed to do so. The respondent disputed this though we note Mr Butcher did not attend the hearing to give evidence and Ms Knight-Smith’s evidence was that she did not discuss this case with Mr Butcher because she wanted to approach it ‘with a fresh set of eyes’.[42]We reviewed the written evidence and note there is no reference to a referral to OH Assist in the consideration of dismissal minutes, agreed by the parties (179-184). The claimant does mention this in his appeal letter stating ‘you told me to wait for a call from OH Assist, I assume regarding my autism spectrum disorder’. In his witness statement he states that during the consideration of dismissal meeting ‘Mr Butcher assured me, both verbally and in writing that he would refer me to occupational health (OH) assist to assess my disability and its impact on my attendance. This referral did not take place’. The claimant goes on to say in his statement that Ms Knight-Smith also promised to refer the claimant to OH Assist. The agreed minutes at the appeal meeting detail that a further occupational health referral was suggested by Mr Butcher but it did not happen. Mr Knight-Smith then says she would check and refer to OH Assist if needed and that the claimant consented to this. Ms Knight-Smith told the Tribunal she decided not to refer the claimant for a further occupational health assessment because in her finding, the claimant’s absences were not linked to his disability and were genuine so it would not have changed the outcome.[43]We note there is no written evidence to support that Mr Butcher promised to refer the claimant, and this was not what the claimant originally stated in his appeal letter. We also note that there is no written evidence to support that Ms Knight-Smith promised to refer the claimant to OH Assist and as the minutes of the appeal meeting were amended and agreed by the parties, we accept these to represent what was discussed and agreed at that meeting. We concluded that there was a conversation about a potential referral to OH Assist but not a promise between the claimant and Mr Butcher. We concluded there was a conversation between the claimant, Mr Garraway and Ms Knight-Smith about a potential referral to OH Assist and that this would be considered but this was not promised. The Tribunal find no evidence to support a firm commitment that a second OH Assist referral would be made. The nature of the claimant’s absences[44]It was common ground that the reasons the claimant provided to the respondent for his absences were genuine. None of these reasons detail any obvious links to ASD. Notwithstanding this, the claimant’s position was that some of his absences were related to his ASD. We considered whether any of the reasons provided by the claimant may have also been related to ASD. During the consideration of dismissal meeting on 13 July 2023, the claimant’s position was that his absences may have been ASD related ‘a bit’ but he could not explain how. By the time he attended the appeal meeting on 23 August 2023, he had abandoned that line of argument. Mr Garraway confirmed during the appeal meeting the impact of the ASD was in understanding the application of the Attendance Agreement and not the absences themselves (203). In his evidence, Mr Garraway told us the absences themselves were on the face of it, not ASD related and had argued the respondent should get professional advice.[45]In his evidence to the Tribunal, the claimant relied on two potential links between his absences and ASD with reference to joint (wrist and knee) pain and his mental health.[46]We asked the claimant whether he had told Mr Butcher about his wrist and knee pain and linked injuries being related to his ASD and he said he had not. We asked why and he said ‘I didn’t believe at the time it was due to disability’. He went on to say he had done some research and learned that the problems with his wrists and knees might be ASD related. We asked when he did this research and he told us it was after he had been dismissed and towards the end of 2023.[47]Turning to the claimant’s mental health issues. The claimant’s evidence was that he had several absences which were primarily due to ASD and related mental health problems. His ASD Assessment details (at page 2) that the claimant felt overwhelmed by the amount of people at work, would eat his lunch in his car and felt anxious at work. We asked the claimant about his mental health difficulties and he said he struggled with working with lots of people in a small area and it was overbearing. We note the claimant did not raise this in any meetings leading to his dismissal, or during the occupational health assessment on 26 June 2023 and it is not referenced in his appeal letter. We note and it was not disputed that aside from a single day of absence on 22 October 2021, which is recorded as an absence due to stress, the claimant did not rely on his mental health issues as a reason for taking time off work.[48]The claimant was given the opportunity to explain to the Tribunal in what way his absences were related to his ASD and what steps he had taken to make this information known to the respondent prior to dismissal. He was unable to provide anything other than vague assertions that the ASD might be linked to his wrist and knee issues and his mental health difficulties and cited no specific evidence in the bundle. We note the claimant had from 14 July 2023 until 23 August 2023 to obtain evidence to support that his ASD might be linked to his absences, he failed to do this. The only evidence the claimant provided was a link to the NHS website providing generic information about autism and associated conditions and was not specific to the claimant (218).[49]Our finding is that the claimant’s absences were not ASD related and the claimant provided no evidence to the respondent during his employment to support that his absences were ASD related. The claimant only made a reference to a potential link (that his absences ‘may’ be related ‘a bit’) at the consideration of dismissal meeting. Further, we heard and accepted he did not rely on this at the appeal meeting and that it was common ground that the reasons given for his absences were genuine, none of which were ASD related. The claimant’s understanding of the Attendance Agreement and related procedure[50]Mr Garraway’s argument at appeal stage was that the claimant struggled to understanding the process applied with reference to the attendance Agreement albeit when asked whether he had discussed with the claimant he said ‘I assumed it’.[51]The claimant’s evidence about his understanding on written documents was inconsistent. He told the Tribunal that he did understand written documents though it took him longer to understand the meaning and process the information. That this should then be explained, broken down and confirmed in writing, which should also be broken down, then he would understand. However, he told Mr Edwards that he understood the AR1 notification issued by Mr Selman on 23 June 2022 and that it was clear about what would happen if he failed to meet the attendance requirements and that he understood that he could discuss any concerns he had with Mr Selman. The claimant gave conflicting evidence about his understanding of the AR2 meeting and subsequent notification issued on 22 March 2023 by Mr Daniels. Initially he told Mr Edwards he understood this, then he stated he did not realise he was on an AR2. Towards the end of his evidence, he told us that whilst he did not fully appreciate the consequences of what would happen if he took more time off sick, he did understand that following the issue of the AR2 on 22 March 2023, if he took two further absences or 10 days off it would trigger a consideration of dismissal meeting.[52]The claimant also cited poor decision making as a link between his absences and ASD. When asked in what way he told the Tribunal he worked nights, had headaches and this made it hard to make rational decisions. We asked the claimant several questions about this and he linked this to how he felt and his associated wrist, limb and mental health challenges as the cause though provided no further evidence despite being given the opportunity to do so.[53]We find that the claimant understood the respondent’s Attendance Agreement and the application of the procedure well enough to appreciate that if he continued not to meet the respondent’s attendance requirements he could be dismissed and the claimant confirmed this in his evidence. The claimant confirmed that Mr Selman had explained the application of the respondent’s attendance agreement, and he understood this. The claimant confirmed that he understood that from 22 June 2022, any part absences would count as full absences and this is evidenced by the fact the claimant took no further part absences after this date. The claimant further told the Tribunal he understood the attendance requirements detailed in the AR1 notification issued by Mr Selman. We accept that the claimant took longer to process information. However, the respondent’s policy had been the same since 2017 and the claimant had been at various stages of the policy on and off since at least 2017 and for the most part, had been supported by his trade union.[54]Notwithstanding our finding in the above paragraph, we considered whether the claimant had not appreciated the consequences of failing to comply with the respondent’s attendance requirements as separate from his understanding of the written agreement and whether this was linked to his ASD. The claimant had been subject to the respondent’s attendance procedure on numerous occasions since at least 2017 and despite triggering AR1s, AR2s and consideration of dismissal meetings, management had not always followed this up. We concluded that it was only at the consideration of dismissal meeting on 14 July 2023, that the claimant appreciated the seriousness of the situation which is why he discussed his diagnosis of ASD with Mr Virk and decided to disclose it to the respondent in the hope it would provide him with some mitigation and delay a final decision for a further referral to OH Assist. We concluded the claimant had failed to appreciate the consequences of noncompliance with the respondent’s attendance agreement because of the respondent’s past lenience with following through on its own procedure and not because of his ASD.[55]We note that the respondent did follow the attendance review process in accordance with the Attendance Agreement starting with the issue of an AR1 notification on 23 June 2022, then the AR2 notification on 22 March 2023 and then the consideration of dismissal meeting on 14 July 2023, which was followed by the dismissal decision on 27 July 2023 and then the appeal. The claimant confirmed he understood these processes and potential outcomes to Mr Edwards.[56]We also considered Ms Knight-Smith’s position that because the periods of sickness absence were accepted as genuine by the respondent, regardless of whether the claimant understood the application of the policy, the outcome would not have changed with reference to the number of absences he took. As it was common ground that the absences were genuine the Tribunal accepted this. Work based injuries[57]The claimant told the Tribunal his wrist injury and potentially his knee injury were worked based. We note there is no objective evidence in the bundle, for example doctor’s letters or similar, to support this. We also note there is nothing about this on the claimant’s claim form or in his witness statement. The Tribunal accepts the claimant did raise his absence between 18 and 24 May 2023 due to his wrist injury as potentially a work based injury during the consideration of dismissal meeting. However, the Tribunal note that the claimant prompted the consideration of dismissal on 16 May 2023 due to taking sickness absence between 28 and 31 March 2023 due to dizziness and between 12 and 14 May 2023 due to stomach upset. This preceded the period of absence related to the wrist injury. Even if the wrist injury was disregarded, we find that given the claimant’s ongoing failure to meet the respondent’s attendance standards, he would have been dismissed in any event. Relocation to another site[58]The Claimant told the Tribunal he could have been relocated to another branch of the Respondent but confirmed he did not discuss this during his employment. We saw no contemporaneous evidence in the bundle to support the claimant’s working environment contributed to his ongoing sickness absences and that redeployment was requested. Mr Gurmeet Virk[59]The claimant considered he had been treated differently to Mr Virk, who he argued had falsely claimed for overtime when he was not in the building. The respondent’s position about this was that this was a conduct matter and treated differently. The Tribunal accept the respondent’s position about this, that Mr Virk’s alleged false overtime claims would be dealt with as misconduct and under the relevant policy and the claimant’s absences, which were for sickness, would be dealt with under the respondent’s Attendance Agreement. Submissions[60]Both parties provided oral submissions. We have not referred to the submissions in any detail unless appropriate to do so but would reassure the parties their respective submissions were considered when reaching our judgment.
Law
[61]Section 98(1) and 98(2) of the Employment Rights At 1996 (ERA) establishes that there must be a fair reason for a dismissal.[62]Section 98 ERA(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.[63]If an employer shows a fair reason for dismissal, the question of fairness is then determined by section 98(4) of the ERA.[64]Section 98 ERA (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[65]Abernethy v Mott, Hay & Anderson [1974] ICR 323 where it was confirmed that ‘the reason for the dismissal is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee’.[66]Kelly v Royal Mail Group Ltd EAT 0262/18 Mr Justice Choudhury (President of the EAT) observed ‘Whilst absence-related dismissals can fall under the rubric of capability within the meaning of S.98… there is no hard and fast distinction such that all absence-related dismissals must be so categorised. In the present case, the issue is not so much whether or not the claimant was capable or unable to do his work as a result of ill health, but that his attendance was unreliable and unsatisfactory. That, it seems to me, is perfectly capable of falling into the residual category of some other substantial reason’.[67]Iceland Frozen Foods v Jones [1982] IRLR 439. The correct approach to reasonableness was given by Browne-Wilkinson J, the then President of the EAT: ‘We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by s.57(3) of the 1978 Act [now s.98(4) of the 1996 Act] is as follows.(1) the starting point should always be the words of [s.98(4)] themselves;(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’[68]S v Dundee City Council, 2013 WL 6148212 (2013) where the Court of Appeal concluded that a Tribunal had attached too much importance to the need to obtain a further medical opinion, it overlooked the fact that the obligation on a reasonable employer was only to carry out such medical investigations as were sensible in all the circumstances.[69]Taylor v OCS Group Ltd [2006] ICR 602 CA where it was confirmed that the appeal is part of the overall process of a dismissal and is always relevant to the Tribunal’s determination of fairness.[70]Section 6 Equality Act 2010 (EqA) - Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[71]Section 15 EqA - 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.[72]Section 20 EqA - 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's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[73]Section 21 EqA - 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.(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.[74]Section 136 EqA - Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) 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.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[75]Igen v Wong [2005] ICR 931, CA 9 provided guidelines regarding the burden of proof (at paragraph 76). The Tribunal must follow a two stage process. At stage one the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant. The outcome of the stage one analysis will usually depend on what inferences, if any, can be drawn from the primary facts. If the claimant gets past stage one, the burden of proof shifts to the respondent who must prove s/he did not discriminate against the claimant. Although there are two stages, Tribunals usually hear the all the evidence in one sitting, including the respondent’s explanation before decided whether the requirements of each stage are satisfied.[76]Qureshi v Victoria University of Manchester and anor [2001] ICR 863, the Employment Appeal Tribunal stated that the function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then “look at the totality of those facts (including the respondent’s explanations) in order to see if it legitimate to infer that the acts or decisions complained” were discriminatory. Adopting a fragmented approach “would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue” of discriminatory grounds.[77]The application of the burden of proof provisions in section 136 EqA to a complaint for Discrimination arising from Disability under section 15 of EqA requires the claimant to prove(a) that he or she was disabled at the relevant time,(b) that he or she has been subjected to unfavourable treatment,(c) to show a link between the disability and the “something” that is said to be the ground for the unfavourable treatment,(d) evidence from which the Tribunal could infer that the something was an effective reason or cause of the unfavourable treatment. If the claimant proves such facts from which the Tribunal could conclude there was s15 EqA discrimination, the burden of proof will then shift to the respondent who must prove either a non-discriminatory reason for the unfavourable treatment or to justify the treatment under section 15(1)(b) EqA.[78]The application of the burden of proof provisions in section 136 of EqA to a complaint for Failure to Make Reasonable Adjustments under section 21 EqA requires the claimant to prove(a) he or she was disabled at the material time.(b) the respondent must then disprove it had knowledge of disability at the material time, if that fails, the claimant must prove facts from which it could be inferred the duty was breached, that requires the claimant to prove facts related to(c) the application of the PCP,(d) the substantial disadvantage, and(e) the adjustment which might have avoided that disadvantage. The burden of proof will then shift to the respondent. It might discharge that burden in various ways, for example by proving it did not have knowledge of the substantial disadvantage or the adjustment was not reasonable.[79]Pnaiser v NHS England and anor [2016] IRLR 170 EAT - 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 a trivial) influence on the unfavourable treatment and so amount to an effective reason for or cause of it.[80]Baldeh v Churches Housing Association of Dudley and District Ltd EAT 0290/18 where the EAT stated (with reference to unfavourable treatment in s15 EqA being dismissal) the outcome of an appeal against a dismissal was integral to the overall decision to dismiss.[81]O’Brien v Bolton St Catherines Academy [2017] EWCA Civ where LJ Underhill states “As a matter of substance, her dismissal was the product of the combination of the original decision and the failure of her appeal, and it is that composite decision that requires to be justified. This is well recognised in the context of unfair dismissal –see Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] ICR 1602, esp per Smith LJ at para. 47 – and it must equally be the case in the discrimination context.”[82]Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305. Langstaff P explained the two step test required for a s.15 claim to establish the causal link between the claimant’s disability and the unfavourable treatment. He said it did not matter in which order the Tribunal approaches these two steps. “It might ask first what the consequence, result or outcome of the disability is, in order to answer the question posed by “in consequence of”, and thus find out what the “something” is, and then proceed to ask if it is “because of” that that A treated B unfavourably. It might equally ask why it was that A treated B unfavourably, and having identified that, ask whether that was something that arose in consequence of B’s disability.”[83]Kelso v Department for Work and Pensions EAT 0009/15. Where the EAT considered the claimant’s disability was part of the background to the case but not the cause of her dismissal.[84]Griffiths v Secretary of State for Work and Pensions 2017 ICR 160, CA, the Court of Appeal confirmed the position in the context of absence and attendance policies. The EAT had erred in identifying the relevant provision, criterion or practice (PCP) as the general policy itself. Rather, the appropriate formulation was that the employee had to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That was the provision breach of which might end in warnings and ultimately dismissal.[85]In General Dynamics Information Technology Ltd v Carranza 2015 ICR 169, EAT, His Honour Judge Richardson explained the challenges involved in formulating a claim concerning dismissal for poor attendance as a claim of failure to make reasonable adjustments. He goes on to say the Employment Tribunal had correctly defined the relevant PCP as ‘a requirement for consistent attendance at work’.[86]In Lamb v The Business Academy Bexley EAT 0226/15 the EAT commented that the term “PCP” is to be construed broadly “having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability”.[87]Lalli v Spirita Housing Ltd 2012 EWCA Civ 497, CA, the Court of Appeal accepted that there can be no duty to make an adjustment for the lack of an ability (in that case an inability to read) that is wholly unrelated to the disability.[88]Thompson v Vale of Glamorgan Council EAT 0065/20 where the EAT stated ‘The Tribunal should identify the nature and extent of the “substantial disadvantage” caused by a PCP before considering whether any proposed step was a reasonable one to have to take… There must obviously be some causative nexus between disabilities relied on and the “substantial disadvantage”; the tribunal should look at the “overall picture” when considering the effects of any disabilities.’[89]Hilaire v Luton Borough Council [2022] EAT 166 where it was confirmed that the substantial disadvantage must be linked to disability. In this case the alleged PCP was a requirement to participate in an interview forming part of a redundancy process. The EAT held that the ET had been entitled to conclude that the claimant would not have taken part in the interview for reasons unconnected with his disability. There was no link between disadvantage and disability so the duty to make reasonable adjustments did not arise.[90]Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664, EAT confirmed that arranging an occupational health assessment is not a reasonable adjustment because such steps do not remove any disadvantage.[91]Secretary of State for Work and Pensions v Alam 2010 ICR 665, EAT which confirmed, among other things, that an employer must have knowledge of the effects of an employee’s disability for the duty to make reasonable adjustments to be triggered.[92]Employment Statutory Code of Practice of the Equality and Human Rights Commission (EHRC Code of Practice). Discussions and conclusions[93]Our findings are with reference to the list of issues. We start with the disability related claims. Reasonable adjustments Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?[94]By an email dated 10 June 2024, the respondent conceded the claimant satisfied the requirements of section 6 of EqA with reference to his ASD, but did not concede knowledge. Midway through this hearing, Mr Edwards confirmed the respondent’s position in this regard as being that the respondent was ‘aware of the disability from 14 July 2023 (the consideration of dismissal meeting) but the reasons for the dismissal were unrelated to disability’. We are grateful for the respondent confirming its updated position on knowledge of disability which would have reflected our findings had this matter still been in dispute. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: i. The application of the attendance policy?[95]The application of a policy, in this case the attendance policy (referred to as the Attendance Agreement), that required the claimant to maintain a certain level of attendance at work is a PCP (Griffiths v Secretary of State for Work and Pensions).[96]It was common ground that the respondent had an Attendance Agreement, negotiated with the claimant’s trade union. The part of the Attendance Agreement that was applied to the claimant were the attendance standards, that applied to all employees (61) albeit there were additional requirements for employees on long term sickness absence, not applicable to the claimant whose sickness absence was not long term and rather consisted of a series of absences for various reasons.[97]As set out in our findings of fact, the respondent applied its attendance agreement and procedure, which is a PCP, to the claimant, issuing a AR1 on 23 June 2022, an AR2 on 22 March 2023 and dismissal with notice on 27 July 2023. This was because, he had not maintained the required standard of attendance at work. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that he was unable to meet the standards required?[98]It was common ground that the reasons given for the claimant’s sickness absences, from at least 2017, on the face of it, were not because of ASD, i.e. he did not take time off when sick because of his ASD in and of itself and did not give reasons linked to his ASD for his sickness absences. It was also common ground that the reasons given for the absences were genuine. For example, when the claimant took six days off sick between the 23 and 28 January 2023 with ‘flu like symptoms’ this was the reason for his absence and this was not in dispute. This was the same with the various reasons provided for the claimant’s absences.[99]During the consideration of dismissal meeting the claimant suggested his absences may be ASD related ‘a bit’ but could not say how. He did not argue his absences were ASD related in his appeal meeting.[100]The claimant did argue that some of his absences were ASD related after he was dismissed (in his claim form and witness statement). His position was that people with ASD were prone to joint issues. However, at the time of his employment, his position with reference to these injuries was that they were work related and due to lifting and moving heavy sacks. He told the Tribunal that it had not occurred to him until after he was dismissed that joint issues may be related to ASD, this was based on research in late 2023. The claimant did not provide any medical evidence that his joint issues were linked to his ASD, only generic information about this from an NHS website, this is not sufficient, as the evidence would have to be personal to the claimant, for example a letter about the claimant from a doctor or a physiotherapist setting out that his joint issues may be linked to his ASD. The claimant did not provide any evidence like this.[101]We found the claimant’s absences due to joint pain and/or injury were not related to his disability of ASD.[102]The claimant also relied on his mental health issues and specifically feeling anxious and overwhelmed in the workplace, which he linked to ASD. We note that the claimant only took a single day of sickness absence citing stress as the cause. We considered whether the claimant’s mental health, linked to his ASD, may have been an overarching factor in his decision to take the amount of sick leave he did. The claimant’s evidence to the Tribunal did not support this. Despite being asked about his mental health and absences, he provided no evidence that he took time off work due to ASD related mental health issues.[103]We found that the claimant’s absences were not because of mental health issues linked to ASD.[104]The claimant also argued, at appeal stage, that he was unable to understand the application of the Attendance Agreement and procedure due to his ASD. The claimant’s own evidence to the Tribunal did not support this as he confirmed he did understand the application of the procedure, that he was able to process written information (noting the Attendance Agreement had been the same since at least 2017 and was applied to him on numerous occasions since then), that he did understand he could be dismissed if he did not meet the respondent’s attendance requirements and he confirmed that Mr Selman had explained the respondent’s requirements to him verbally in June 2022.[105]There must be some causative nexus between the disabilities relied on, in this case ASD and the “substantial disadvantage” suffered by the claimant (Thompson v Vale of Glamorgan Council/Hilaire v Luton Borough Council). The claimant was disadvantaged by the application of the respondent’s Attendance Agreement because he was dismissed for not meeting the respondent’s attendance requirements but not for disability related reasons. This is because the claimant did not take time off work for ASD related reasons and the claimant’s disability of ASD did not impair his understanding of the application of the Attendance Agreement.[106]Even if the claimant’s absences were disability related, and for the avoidance of doubt, we find they were not, the claimant provided no evidence to the respondent, during his employment to support this and in our finding he had numerous opportunities to do this including at the attendance review meetings, the occupational health assessment, the consideration of dismissal meeting and the appeal meeting. We also note the claimant had enough time between being notified about the consideration of dismissal meeting and the appeal, to provide medical evidence to support any assertions his absences were disability related, he did not do this.[107]The claimant’s own evidence to the Tribunal was that it was after he was dismissed, he did some research and concluded there was a link between is sickness absences and his ASD (but again provided no evidence other than generic information from an NHS website).[108]In summary, the duty to make reasonable adjustments did not arise because the claimant’s disability did not impair his understanding of the application of the attendance policy and his absences were not disability related. Further, the claimant provided no evidence linking his disability to his absences, thus demonstrating a substantial disadvantage, during his employment.[109]Therefore, the claimant was not placed at a substantial disadvantage compared to a non-disabled person. There was no link between the substantial disadvantage and disability. The duty to make reasonable adjustments does not arise.[110]This complaint of failure to make reasonable adjustments for disability is not well founded and is dismissed. Discrimination arising from disability[111]Neither disability nor knowledge at the material time is in dispute. Did the Respondent treat the Claimant unfavourably by dismissing him?[112]Mr Butcher, the section lead, made the decision to dismiss the claimant with notice on 27 July 2023. It was common ground that Mr Butcher was the person that reviewed the claimant’s history of absences and the respondent’s procedure in relation to those absences and dismissed him. Dismissal is unfavourable treatment (5.7 of the EHRC Code of Practice).[113]Following the claimant’s appeal against the decision by Mr Butcher to dismiss him, Ms Knight-Smith managed the appeal process and appeal hearing on 23 August 2023 and decided to uphold the original decision to dismiss the claimant who was notified on 19 September 2023. Did the claimant’s attendance record and ability to meet the attendance requirement arise in consequence of his disability?[114]The claimant was dismissed because of his attendance record and ability to meet the respondent’s attendance requirements due to his frequent sickness absences.[115]The claimant was issued with an AR1 notification on 23 June 2022 following an attendance review meeting on 17 June 2022; an AR2 notification on 22 March 2023 following an AR2 meeting on the same day and dismissed him with notice on 27 July 2023, following the consideration of dismissal meeting on 13 July 2023. The claimant appealed the decision to dismiss him, which was dismissed on 19 September 2023, following an appeal meeting on 10 August 2023.[116]It was common ground that the claimant’s absences were for genuine reasons. The reasons for his absences are set out in paragraphs 18, 21 and 23 above and in the attendance appeal decision (210). Because of this, he was unable to meet the attendance requirement.[117]The something that arose that caused the claimant’s dismissal was his attendance record and inability to meet the respondent’s attendance requirements.[118]We found that the claimant’s absences were not for disability related reasons as detailed above.[119]Accepting that there may be more than one causal link between something arising in consequence of disability and unfavourable treatment, we considered whether the claimant’s ASD had contributed to his inability to understand the application and the consequences of failing to meet the respondent’s attendance requirements (Pnaiser v NHS England and anor). The claimant did not raise his inability to understand the application of the respondent’s attendance requirement until the appeal stage. The outcome of an appeal against a dismissal has been held to be integral to the overall decision to dismiss (O’Brien v Bolton St Catherines Academy/ Baldeh v Churches Housing Association of Dudley and District Ltd). We took the claimant’s grounds for appeal into consideration.[120]We concluded the claimant understood the respondent’s attendance requirements well enough to appreciate that if he did not meet these requirements he would be dismissed as detailed above.[121]Neither the absences themselves nor the claimant’s ability to meet the respondent’s attendance requirements arose in consequence of his disability. Applying the two stage test, there is no causal link between the ‘something arising’, being the claimant’s sickness absence record and/or his inability to meet the respondent’s attendance requirements and his disability (Basildon and Thurrock NHS Foundation Trust).[122]There is a distinction to be drawn between disability as background, as is the case here, and something arising in consequence of disability being an operative cause of the treatment complained of (Kelso v Department for Work and Pensions). The operative cause of the dismissal being the unfavourable treatment was the claimant’s attendance record i.e. his poor attendance which was not for disability related reasons.[123]The unfavourable treatment, being dismissal, which arose because of the claimant’s attendance record and inability to meet the respondent’s attendance requirements did not arise in consequence of his disability, being his ASD. Therefore, this claim is not well founded and is dismissed.[124]The complaint of unfavourable treatment arising in consequence of disability is not well founded and is dismissed. Unfair dismissal What was the reason or principal reason for dismissal? The Respondent says the reason was a substantial reason capable of justifying dismissal, namely the inability to meet the required standards of attendance.[125]Mr Butcher made the decision to dismiss the claimant with notice on 27 July 2023. This was for failing to meet the respondent’s attendance standards as set out in the dismissal letter of the same date. The claimant appealed this decision. Following an appeal hearing, Ms Knight-Smith made the decision to uphold the original decision on 19 September 2023. The claimant’s last day of employment was 29 September 2023. The dismissal is a combination of the original decision and the failed appeal (Taylor v OCS Group Ltd).[126]The respondent’s reason for dismissal was ‘some other substantial reason’ (SOSR). SOSR is not a reason but a category of potentially fair reasons that do not fall into any of the categories at section 98(2) Employment Rights Act 1996 (ERA). In this case, the reason was unreliable and unsatisfactory attendance, which can fall into the category of SOSR (Kelly v Royal Mail Group Ltd).[127]We considered whether the reason may have also been capability related. This was because the claimant was dismissed because he failed to meet the respondent’s attendance requirements due to frequent periods of sickness absence. We noted the absences were for various reasons and that the claimant’s ability to do his job was never in issue. We concluded the respondent was entitled to rely on SOSR, with reference to unsatisfactory attendance, which is a backward looking process rather than capability, which is about ongoing health issues which may render service going forward problematic (Kelly v Royal Mail Group Ltd).[128]SOSR, in this case for a failure to meet the respondent’s attendance requirement is a potentially fair reason to dismiss and was the operation reason in the minds of both Mr Butcher and Ms Knight-Smith when they made their respective decisions (Abernethy v Mott, Hay & Anderson). Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.[129]Having identified the reason for dismissal and it being a potentially fair reason to dismiss the claimant, we considered whether it was fair to dismiss the claimant or not, looking at all the circumstances of the case.[130]The question for the Tribunal to decide when assessing whether the respondent’s procedure was fair is not to assess what it would have done in the same circumstances. A tribunal must not substitute its view of what constitutes a fair procedure for that of the respondent. Instead, it must review the circumstances of the case (including the size and administrative resources of the employer’s undertaking) and whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. This will usually involve an assessment of whether the respondent’s decision to dismiss fell within the range of reasonable responses available to that employer in the circumstances (acknowledging that there are a range of reasonable decisions an employer can take in the circumstances).[131]The respondent employed approximately 139,400 people nationally and 500 at the claimant’s place of work at Heathrow Worldwide Distribution Centre. In the circumstances, it would be expected to have both clear and fair procedures in place and utilize the necessary recourses to fairly apply its procedures, in this case, the Attendance Agreement and the fair application of the same.[132]The attendance policy was agreed with the claimant’s trade union, CWU and Unite the Union. The claimant did not challenge the fairness of the attendance policy or its application to him. His primary issues were that the respondent had not obtained a second occupational health report from OH Assist, not delayed the decision about whether to dismiss until it obtained this report and/or given him a further opportunity for his attendance to improve.[133]The claimant was represented at most of the stages of the attendance procedure by representatives from CWU, his trade union. He was not represented at the meeting on 22 March 2022, with Mr Daniels though he told the Tribunal he could have arranged representation and the letter inviting him to that meeting reminded him of that right (167). The claimant also raised that he was not adequately represented by Mr Virk at the dismissal meeting. However, this would be between him and CWU. In any event, it is established law that a properly managed appeal process, which in this case, was a complete rehearing of the decision to dismiss, as acknowledged by Ms KnightSmith’s evidence to the Tribunal and not disputed by the claimant, can rectify faults in the original decision (Taylor v OCS Group Ltd). The claimant had no complaints about Mr Garraway’s representation of him at the appeal meeting. Mr Garraway also attended the Tribunal to give evidence for the claimant.[134]As detailed in paragraph 12 above, the respondent had an attendance agreement and a three stage process for managing unsatisfactory attendance. The respondent correctly followed that procedure as set out in paragraph 55 above.[135]The claimant was at various stages on the respondent’s attendance agreement and procedure for much of his employment. There were numerous occasions when the respondent did not hold attendance meetings or issue AR notifications due to failures on the part of management to follow up in a timely manner. There were also occasions when sickness was disregarded (for example for Covid 19 related absences) during this period. There were three occasions when AR1s were reissued rather than the claimant moving to an AR2 and three occasions when a consideration of dismissal was not issued (156).[136]At the appeal meeting, Mr Garraway argued that the respondent had not always activated prompts or followed its own procedure so it was understandable that the claimant may not have appreciated that the respondent would follow through on its attendance procedure on this occasion if the claimant failed to meet the respondent’s attendance requirement (202).[137]We note that the Attendance Agreement allows for the exercise of discretion where appropriate (58). We find the respondent should not be penalised for exercising its discretion to the claimant’s advantage on earlier occasions, not least because the exercise of the discretion was permitted under the attendance Agreement and fairly applied to the claimant as part of the respondent’s procedure (Iceland Frozen Foods v Jones).[138]The claimant confirmed in his oral evidence he understood the respondent’s Attendance Agreement and procedure. It was common ground that he had not satisfied the respondent’s attendance requirements. He also confirmed he understood each stage of the procedure and the resulting notifications as they applied from the AR2 meeting on 17 June 2022, when Mr Selman decided to reissue an AR1, the AR2 meeting and notification and then the Consideration of Dismissal meeting.[139]The claimant did say he did not realise he had been placed on an AR2 by Mr Daniels. However, he confirmed he had read all the notifications and understood the content and requirements, including for the AR2 issued on 22 March 2023. We found that he did realise he had been placed on an AR2 but may not have appreciated the gravity of this until he attended the consideration of dismissal meeting.[140]The claimant also submitted that the respondent should have referred him for a second occupational health assessment following the disclosure of his disability. However, the respondent concluded, based on both the written record and the claimant’s own evidence during the hearings, that the claimant’s absences were not disability related. We have already found that the claimant’s absences were not disability related. The claimant had already had an appointment with OH Assist on 26 June 2023 and the claimant did not disclose his disability. We find that a single referral to OH Assist, already made, was reasonable and that while it was open to the respondent to consider a second referral, it was neither inappropriate, given the absences were not disability related, nor unreasonable for it not to take this step (S v Dundee City Council).[141]The respondent’s policy in its Attendance Agreement is to discount disability related absences (63). We have already found the claimant’s absences were not disability related and the claimant did not argue any of his absences were disability related until after his employment ended (i.e. in his claim form and his witness statement). Prior to this, he said his absences may have been related to his ASD ‘a bit’ in the consideration of dismissal meeting though had abandoned this line of argument by the time of the appeal meeting.[142]We next considered whether the absences had been correctly accounted for. There was no dispute about the respondent’s record of the claimant’s absences, which was common ground. The claimant did argue that a wrist injury between 18 and 24 May 2023 was work related. The respondent disputed this and there was no medical evidence in the bundle to confirm the cause of this wrist injury. In any event, even if this absence was discounted, the consideration of dismissal had already been triggered on 16 May 2023, because the claimant had already failed to meet the respondent’s attendance requirements as set out in the AR2 dated 22 March 2023 (two absences or 10 days) because he took sickness absence between 28 and 31 March 2023 due to dizziness and between 12 and 14 May 2023 due to stomach upset. We accepted all of the claimant’s absences had been correctly accounted for at each stage of the respondent’s attendance procedure.[143]We then considered whether the decision to dismiss was fair or whether Mr Butcher should have issued a further AR2 rather than dismissing the claimant or whether Ms Knight-Smith should have reinstated him. The issue of fairness of the decision is subject to the range of reasonable responses test. The Tribunal must not substitute it own view but must assess whether the respondent’s decision to dismiss came within the range of decisions available to a reasonable employer in the circumstances (Iceland Frozen Foods v Jones).[144]We considered the circumstances at the time of the dismissal and appeal. The claimant had consistently breached the respondent’s attendance requirements and had a poor attendance record (see paragraph 15 above).[145]Mr Butcher has left the respondent so did not attend to give evidence. It is clear from Mr Butcher’s letter of dismissal, that the reason for dismissal was because the claimant did not satisfy the respondent’s attendance requirements and that in his finding, none of the absences were either disability and work related so should not be discounted and the respondent had applied all procedural steps in accordance with its Attendance Agreement.[146]We heard and accepted Mr Knight-Smith’s evidence that she did not uphold the claimant’s appeal because he did not satisfy the respondent’s attendance requirement, that with reference to the claimant’s position that he had not been given the opportunity to improve his attendance, that this had been a problem for a long time and that while there were periods when his attendance improved, this would not last. Ms Knight-Smith was satisfied the respondent had followed a fair procedure and relied on the claimant’s attendance record covered by the attendance reviews leading to dismissal. She told the Tribunal that based on his attendance record, she did not have any confidence the claimant’s attendance would improve.[147]At the appeal stage, the claimant also argued he did not understand the application of the respondent’s attendance agreement and procedure due to his ASD. We have found that he did understand the procedure and its application. We note this is an unfair dismissal complaint so we turn to whether it was reasonable for Ms Knight-Smith, as the appeal manager, not to uphold the appeal based on this submission. It was common ground the claimant’s absences were for genuine reasons. Consequently, Ms Knight-Smith concluded these absences could not have been avoided even if the claimant did not always understand the procedure. We accepted this.[148]The respondent operates in a competitive market and has a ‘universal service obligation’ (USO) which requires it to operate at a fixed price to any destination in the UK and deliver letters and parcels within fixed time frames. Ms Knight-Smith considered the impact of the claimant’s attendance on its obligation to provide good customer service and its inability to compete on price and concluded it can only do this with reliable and available employees. She balanced this requirement with the claimant’s ongoing failure to meet the respondent’s attendance requirements and upheld the dismissal.[149]The respondent is a large employer and has the resources to ensure that its policies are fairly applied. It achieves this by working with CWU and Unite the Union to ensure its policies and procedures are fair and that employees have the right to be represented at all stages of the attendance procedure. The respondent is large enough to show some leniency as and when appropriate. The Attendance Agreement allows for managers to use their discretion and the claimant had benefited from this on several occasions in the past when he had prompted AR1s, AR2s and consideration of dismissal and these were not activated. However, this must be balanced with the respondent’s obligation under the USO that necessitates an available and reliable workforce. We found that relative to the respondent’s size and resource, it approached the issue of the claimant’s failure to satisfy the respondent’s attendance in a fair and balanced way.[150]In the circumstances, we found that Mr Butcher’s decision to dismiss the claimant and Ms Knight-Smith’s decision to dismiss the appeal came within the range of reasonable decisions available to a reasonable employer in the circumstances.[151]In summary, we find that the respondent dismissed the claimant for a fair reason, being SOSR, and followed a fair procedure by applying each stage of its attendance agreement to the claimant and giving him the opportunity to be represented by his trade union at each stage, by referring him for an occupational health assessment with OH Assist prior to the consideration of dismissal meeting and by providing him with the opportunity to appeal, which under the respondent’s procedure is a complete rehearing of the case, which the claimant exercised.[152]During the period that led to the prompt for the meeting on 13 May 2022 with Mr Selman where he issued an AR1 and the claimant’s notification of dismissal on 27 July 2023, the claimant took 71 days sickness absence over 13 separate periods, this excluded time off for covid related sickness which was discounted (151).[153]The respondent’s decision to dismiss the claimant, following the proper operation of the Attendance Agreement and related procedure, was reasonable and within the range of reasonable responses. The decision to dismiss the claimant was therefore fair in all the circumstances.[154]The complaint of unfair dismiss is not well founded and is dismissed. Remedy hearing[155]As none of the claimant’s claims have been upheld, there will be no remedy hearing on 9 July 2025. The remedy hearing listed for 9 July 2025, is therefore vacated. Approved by: