Ms J Littlewood v South East Coast Ambulance Service NHS Foundation Trust: 3314513/2022
JUDGMENT
The claimant’s complaints of unfair dismissal and disability discrimination are not well founded and are dismissed.REASONS
[1]In a claim form presented on 6 December 2022 the claimant made complaints of unfair dismissal and disability discrimination. The respondent denied the claimant’s complaints. The parties agreed a list of issues to be decided in the case and these are set out at p48-50 of the Trial Bundle.[2]The final hearing in this case took place on the 28-30 May 2025. There was not sufficient time for the Tribunal to deliberate and reach a decision in this case in that time allocation. The Tribunal arranged to meet to deliberate and reach a decision on 25 July 2025. On that date the Tribunal did not meet as arranged because of a bureaucratic scheduling error by one of the members of the Tribunal. A new date was to be set for the Tribunal to deliberate and reach a decision in this case which unfortunately was not possible until 20 October 2025. The Tribunal apologises for the inordinate delay that has resulted in the decision in this case not being sent to the parties within a reasonable time period. There was a further delay that arose after the 20 October 2025 as a result of the request made by the Tribunal for an extract if the evidence of one of the witnesses to be provided for the Tribunal so that we could check our notes in respect of one part of the witness’ evidence.[3]The claimant gave evidence in support of her own case and also relied on the evidence of Mr P Steventon. The respondent relied on the evidence of Mr D Hawkins and Mr A Rowe. The Tribunal was also provided with a Trial Bundle containing 335 pages of documents. From these sources we made the following findings of fact which we considered necessary to decide the matters before us.[4]The claimant was employed by the respondent, South East Coast Ambulance Service NHS Foundation Trust, as an Advanced Technician from 4 June 2001 until 5 August 2022. The claimant is a disabled person within the meaning of section 6 Equality Act 2010, due to bilateral neuro foraminal stenosis, a neck condition; and traumatic stress disorder.[5]The claimant’s role is to provide emergency and urgent care to patients; this involves assessment, treatment, manual handling and clinical care of those patients.[6]The respondent has a Managing Health and Attendance Policy and Procedure (which we refer to as the “managing sickness procedure”). Under the procedure a manager can issue a stage to advise a colleague that their level of absence is unsustainable by the Trust. Stage 1, first formal attendance review meeting, will remain live for 6 months, and may be issued by the 1st line manager. Stage 2, second formal attendance review meeting, remains live for 12 months and may be issued by the 2nd line manager. Stage 3, formal attendance hearing, up to an including dismissal due to ill health capability or other alternative outcome, i.e. redeployment, can be issued by substantive band 8b+.[7]The procedure states that it is expected there will be a significant improvement in attendance and that no further attendance thresholds will be met. If the colleague’s sickness absence level improves no further action will be taken and the colleague will only-re-enter the procedure at Stage 1, if one or more of the thresholds are met again in the future. (20.4)[8]Escalation to the next stage will be initiated if any of the sickness attendance thresholds are met during the issued stage. (20.5)[9]A colleague should not be issued with a stage for disability-related absence, unless this can be justified. (21.1.5). Pregnancy related sickness is not taken into account when considering absence monitoring thresholds. (21.2.1) Absence due to a work related accident or injury will normally be discounted when considering whether issuing a stage is appropriate, unless contributory negligence is proved. (21.3.1)[10]Section 22 set out the factors to be taken into account when conducting a stage 3 formal attendance hearing. Outcomes at stage 3 may include permanent redeployment and termination of employment.[11]On 10 January 2020, the claimant attended a formal stage 1 meeting, she had been absent on 12 occasions for a total of 67 working days during the previous 12 months. The claimant was issued with a 6-month first written warning notice of concern.[12]On 18 February 2020 an occupational health report confirmed that the claimant was suffering with neck, right shoulder and back pain, as well as PTSD arising from a work-related road traffic accident which caused anxiety and physical symptoms.[13]On 26 February 2020, the claimant attended a Stage 2 sickness meeting. The claimant had been absent on 12 occasions for a total of 78 working days over the past 12 months. A notice of concern was put in place for the next 12 months.[14]On 1 April 2020, an occupational health report advised that the claimant was not fit to perform her normal role at present, but a return to full fitness within a few weeks was likely.[15]On 13 April 2020, the claimant participated in a physical capability review which indicated that the claimant was able to complete the physical tasks required of her role.[16]On 17 June 2020, the claimant was informed that she had reached a further absence threshold since the Stage 2 outcome and that the Trust had decided to put any formal attendance Stage 3 hearing on hold due to the Covid-19 pandemic.[17]On 26 February 2021, a further occupational health report advised that the claimant was currently at work and fit to for her role with the support of specified adjustments.[18]On 12 March 2021, the claimant was invited to a stage 3 formal attendance hearing where she was placed on a further 12 month period of absence monitoring.[19]The claimant’s hours of work were reduced to 23 hours from 1 July 2021.[20]Occupational health advised, in a report dated 22 July 2021, that the claimant may be fit for adjusted duties to minimise the physical demands of her role; that the claimant should not carry out any night shifts for the next 8-12 weeks due to chronic fatigue.[21]On 22 July 2021, it was agreed that the claimant would work adjusted shift pattern on a trial basis.[22]The claimant was off work due to musculoskeletal issues from 8 September 2021.[23]On 28 September 2021, an occupational health report advised that the claimant was not fit to return to normal duties but would be fit for light duties in a sedentary role preferably working from home.[24]The claimant returned to work from 3 November 2021. On 22 January 2022 the claimant began a period of sickness absence due to Musculoskeletal issues.[25]Following an occupational health assessment on 8 February 2022, it was advised that the claimant was experiencing a lot of pain when doing certain movements and that she was awaiting a cortisol injection. The claimant would be fit to return to work doing alternative duties.[26]The claimant was invited to a stage 3 formal attendance hearing on 3 March 2022. The claimant was advised a potential outcome of the meeting included termination of the claimant’s employment. The claimant was advised that she could be accompanied at the meeting by a colleague or a trade union representative.[27]At the stage 3 meeting the claimant’s situation was discussed and it was agreed that the stage 3 meeting would reconvene after the claimant had seen her consultant following an MRI scan. The claimant stated that she wanted to be considered for ill-health retirement because she could not see foresee coming back to operational duties. The claimant was again referred to occupational health.[28]The claimant was invited by Mr Dave Hawkins to a stage 3 meeting on 13 May 2022; the claimant was advised of her right to be accompanied by a colleague or trade union representative. The claimant was informed that a possible outcome was termination of the employment on the grounds of capability due to ill health.[29]At the stage 3 meeting the claimant stated that she had been referred to a pain clinic and that she could not foresee a return-to-work date.[30]Mr Hawkins made the decision to dismiss the claimant. In coming to his decision to dismiss Mr Hawkins explained that he was satisfied that the claimant’s absence was for genuine health reasons that had persisted over a considerable period and that it had been several years since the claimant had been able to maintain a sustained level of attendance in her role as an Ambulance Technician. The occupational health report confirmed that there was no clear course of treatment or possibility of predicting when she might be able to return to her duties as an Ambulance Technician. As the claimant did not have a prospect of returning to normal duties of work in 12 weeks the Trust’s policy did not permit temporary redeployment to alternative duties. Permanent redeployment would be considered during the notice period and if suitable employment found the dismissal revoked. Mr Hawkins considered the claimant’s length of service. The claimant’s level of absence was not sustainable by the Trust. Mr Hawkins considered the claimant’s work record and took that into account in deciding to dismiss the claimant.[31]The claimant was dismissed with notice and informed that she had the right to appeal against the decision to dismiss. The dismissal and the reason for the dismissal were set out in a letter to the claimant dated 17 May 2022, the dismissal was to take effect on 5 August 2022.[32]The claimant appealed the decision to dismiss her.[33]The claimant agreed that on 17 May 2022, the date she was notified of her dismissal, she was suffering from severe symptoms, she had no date for any treatment, and she had no prognosis. The claimant states that about two weeks after notification of her dismissal she was fit to return to work in her substantive role. The claimant states in her evidence that she had treatment with a chiropractor which released a nerve and as a result she was fit to return to work about two weeks after her dismissal and during the notice period. The claimant states that she contacted the respondent during the notice period and informed her line manager (Mr Mark Newton) that she was fit to return to work, but she was told that “you do not work in the notice period and that he would look into it”.[34]The respondent did not accept this chronology and pointed out that the documentary evidence in the bundle shows no record of the claimant having any treatment between May 2022 and 12 August 2022. The medical treatment procedure that the claimant had on 12 August 2022 is recorded as “cervical nerve root block – left C5”. The respondent also points to the claimant’s impact statement in respect of disability which states that the claimant “had another injection on 12 August 2022 which helped a little. I had a follow up with pain Clinic Nurse Specialist on 9 December 2022”. The claimant’s notice period expired on 5 August 2022.[35]The appeal hearing was initially to take place on 28 July 2022; however, it was not possible for the appeal to proceed on that day and the appeal took place on 29 September 2022.[36]Mr A Rowe heard the claimant’s appea;, the claimant was invited to an appeal hearing which took place on 29 September 2022. The notes taken at the appeal have been lost and cannot now be found.[37]At paragraph 15 of his statement Mr Rowe states the following: “In the course of the discussion, Joanne stated that she was fit to return to work during her notice period and that she had evidence to support this. I decided that, if there was a possibility that Joanne was able to return to work within the duration of her notice period, then it may be reasonable to overturn the decision to dismiss Joanne in order to facilitate Joanne’s return to work. I therefore agreed to adjourn the appeal hearing and not to make any decision in relation to the appeal until Joanne had been given the opportunity to provide us with the medical evidence she had referred to.”[38]This part of the evidence was the subject of controversy between Mr Rowe and the claimant. Mr Rowe’s position was that the claimant said that she had a report/letter provided to her by her consultant that stated that she was fit to return to work two weeks after her dismissal. Mr Rowe stated that if that was so he would consider that it was new evidence that would allow him to allow the appeal and reinstate the claimant. The purpose of the adjournment was for the claimant to produce the letter she had or to secure a copy of the letter from either her GP or the consultant.[39]The claimant’s position on what led to the adjournment of the appeal was different. The claimant said that she told Mr Rowe that she had been fit to return to work two weeks after dismissal and then that it was Mr Rowe who asked her if she could evidence from her doctor that she was fit to work two weeks after her dismissal and that the adjournment was to seek such information from her GP or consultant. The claimant’s position was that she was not merely seeking to obtain a copy of a document/letter that she had stated was already in existence.[40]The distinction in the positions is important because if the position was as alleged by Mr Rowe he would have allowed the appeal and reinstated the claimant if she produced the letter of which she spoke. Mr Rowe denied that the second scenario was the position because in his role hearing the appeal Mr Rowe said that he “would not be starting to gather new information myself”. Mr Rowe pointed out that there was a limited basis on which he could allow an appeal; where there has been a breakdown in process, where there had been “an undue” sanction, and where there was new evidence that could have been provided.[41]Mr Rowe was asked what he would have done had the claimant said, “I am now fit for work”. It was put to him that a reasonable appeal manager would send the claimant to occupational health to see if the claimant was fit to return to work. Mr Rowe refused to answer the question which he described as hypothetical and stated that it had never before occurred in his career dealing with appeals. He stated that it was not what happened in the claimant’s case where she had stated that she had a letter stating that she was fit for work. What had happened was that the claimant said she had the evidence and so the appeal meeting was cut short for the claimant to obtain the evidence, in the first instance, on 29 September 2022, the claimant had taken the opportunity to make a phone call to see if she could secure a copy of the letter and produce it at the resumed hearing. When that was not possible, something which Mr Rowe considered unsurprising as he would not expect the GP or consultant to be readily available at the end of the phone at such notice, it was agreed that they would adjourn for the claimant to secure a copy of the letter, not to get a new fit note or a new letter retrospectively stating that she would have been fit to work 2 weeks after her dismissal.[42]If what the claimant was alleging had happened, which Mr Rowe emphasised did not happen, Mr Rowe stated that he would have sought advice from an HRBP or if the situation was more complicated from the respondent’s legal advisors before making a decision. Although the claimant stated that she had told Mr Newton that she was fit to work, no enquiry was made of him as to whether the claimant had reported to him that she was fit work.[43]At the resumed appeal hearing, on 25 November 2022, the claimant had not been able to provide a letter/report that stated that she was fit to work within the 12 weeks’ notice period. The claimant was informed that her appeal had been unsuccessful, and her dismissal confirmed.[44]In dismissing her appeal Mr Rowe considered and rejected all of the points made by the claimant in her appeal.[45]The parties agreed a list of issues as set out in pages 48-50 of the trial bundle. Unfair dismissal and Discrimination arising from disability[46]Unfair Dismissal is defined under section 98 Employment Rights Act 1996. It is for the respondent to show the reason for dismissal. The respondent relies on capability.[47]The question for the Tribunal is whether the respondent acted reasonably or unreasonably in all the circumstances in treating this as a sufficient reason for dismissing the claimant, having regard to equity and the substantial merits of the case (s98(4) ERA).[48]The parties have both referred us guidance to be found in the case of Lyncock v Cereal Packaging Limited [1988] ICR 670. The respondent refers us to a passage from the Court of Session case of S v Dundee City Council [2013] CSIH 91. The claimant also referred us to East Lindsey District Council v Daubney [1977] ICR 566.[49]After taking into account the various factors identified in the stated cases, we must not substitute our own views for that of the employer but must ask whether dismissal was in the range of reasonable responses of a reasonable employer.[50]Section 15 of the Equality Act 2010 provides that “(1) A person(a) (A) discriminates against a disabled person(b) (B) if – (a) A treats B unfavourably because of something arising in consequence of b’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[51]The unfavourable treatment relied upon in this case is the dismissal of the claimant. It is accepted that the dismissal of the claimant is unfavourable treatment.[52]The claimant’s absences for her PTSD and neck/shoulder were something arising in consequence of the claimant’s disability.[53]The respondent had knowledge of the claimant’s disability.[54]Was the dismissal of the claimant a proportionate means of achieving a legitimate aim?[55]The claimant contends that disability was not adequately considered and that there was a failure to provide training on disability to the managers. The tribunal note however that the managers were provided with HR support and there were references made to OH throughout the relevant period. The managers took into account the OH reports which addressed the question of disability and made recommendations for adjustments.[56]The claimant asks the question should the claimant have been at stage 3 of the managing sickness procedure at all. We are satisfied that the respondent followed the managing sickness procedure and that there were many instances of the claimant meeting the sickness thresholds provided in the procedure.[57]The claimant complains that the respondent in its evidence was relying on generalisations and not producing evidence to show the effect on standards of service levels, health and safety of colleagues, or that the claimant’s continuing absence was in some way too costly. The evidence presented showed that the claimant’s absence was significant, and the respondent said that it was unsustainable.[58]There were 26 periods of absence in a two-year period for a variety of causes, the absences were sometimes for days sometimes for weeks and also for months. The nature and level of absences, taking into account and accepting the claimant’s contention that many of the absences were for covid and pregnancy related, the Tribunal conclude were unsustainable. We note that the respondent applied a policy relating to the provision of alternative duties in a way that was structured to avoid creating supernumerary positions: for the as long as the claimant’s pattern of absence to continue the effect was similar to a supernumerary role or the claimant was an unnecessary employee. This is because while the claimant remained on the employee roster she was not capable of being placed effectively in the work roster.[59]The Tribunal in any event consider that the evidence from the respondent’s witnesses was more than mere generalisations. We were told by Mr Hawkins that the claimant’s absence meant ambulances could not go out because there was no slack in the system and while the claimant remained in employment a replacement could not be recruited and any gaps created by her had to be filled with other colleagues taking on the duty or it went unfilled sometimes resulting in ambulances not being able to go out because they could not be adequately staffed.[60]The claimant states that her absences from work were due to work-related injury. We note that the claimant’s PTSD and back pain were work related. The managing sickness procedure expressly provides that a work-related injury causing an absence “is not exempt from the managing health and attendance policy, and the absence should be recorded and reviewed as per other sickness absence. However, absence due to work related accident or injury will normally be discounted when considering whether issuing a stage is appropriate, unless contributory fault is proved.”[61]The managing sickness procedure did not oblige the respondent to ignore the work-related absences. However even if they were excluded the claimant still met the triggers.[62]The claimant points out that her absences were due to her disability and that Mr Hawkins makes no mention of disability in his decision. The claimant makes a similar point in respect of the appeal conducted by Mr Rowe. The claimant’s absences were for disability related conditions and also for other reasons. The respondent’s policy was that “a colleague should not be issued with a stage for disability-related absence, unless this can be justified”. Where justified a stage could be issued. The scale of the claimant’s absences in our view were such that it was justified to take into account the claimant’s disability related absences.[63]The claimant contends that she was fit to work on alternative duties and that the way that the witnesses have approached alternative duties did not comply with the respondent’s policy because there was no policy that provided for 12 week return to work duties as a requirement for alternative duties to be provided. The claimant points to the policy being that there should be an expectation of return to duties and a discrete requirement that alternative duties are not to last more than 3 months but that there can be consecutive periods of alternative duties. The claimant points to the fact that the claimant was assessed for alternative duties and contends that such roles were available.[64]We note that the managing sickness procedure set out the principles to be applied when a colleague and their manager are to agree alternative duties as a way for the colleague to stay at work or return to work (16.3); these include that the colleague will return to their substantive post; that alternative duties should not exceed three months in a particular role; that in certain circumstances a colleague could undertake consecutive alternative posts; where a colleague is unlikely to be able to return to their substantive post, redeployment opportunities, ill-health retirement or termination due to ill-health capability will be discussed.[65]Mr Hawkins gave evidence alternative duties were only extended in limited cases and gave an example of cancer.[66]The claimant could have applied for redeployment, where she would have been given a priority interview if she was fit and qualified to perform the role.[67]There were extended periods when the claimant was not available for alternative duties. We also note that the claimant was considered for alternative duties and in March 2020 a role was found for the claimant where it would have taken weeks to train the claimant into the role and then in April 2020 the claimant passed a fitness test allowing her to return to her role. Looking at the situation in full we do not consider that the respondent can be faulted for the approach that they took towards alternative duties and the claimant.[68]The claimant says that the occupational health reports have been misapplied by the respondent as they provide guarded statements about the claimant and they do not say that there is no reasonable prospect of return for the claimant. We accept that the claimant was not described as not being able to return. However, we note that in 2022 the claimant was continually off work from January until her dismissal in May. The claimant says that after her dismissal she was fit to return to work and that she informed her manager of this.[69]This aspect of the case has caused us anxiety. Was the claimant actually fit for work and did she tell her line manager that she was now fit to work in her substantive role during her notice period? If the claimant was fit to work during the notice we cannot understand why she was not allowed to return to work at that time and as the claimant says there would have been no justification for her dismissal.[70]We note that there is a conflict between Mr Rowe and the claimant in respect of what took place during the appeal hearing. On balance we prefer the version of events from Mr Rowe. There is no conclusive piece of evidence that says his evidence is to be preferred but our analysis of the rather garbled ‘Teams’ transcript of the reconvened appeal hearing and the evidence of Mr Steventon help us to conclude that it more likely than not that Mr Rowe’s version of event is correct. We note that the way that Mr Rowe viewed the role he had in the appeal would support his version of events rather than the claimant’s version of events as being a reason to adjourn to secure evidence. Whichever version of events was correct we find it difficult to understand why an enquiry was not made to the claimant’s line manager, to ask if it is correct that the claimant reported as fit for work early on in the notice period. We also find it difficult to understand why there appears to have been no attempt at all from the claimant to seek redeployment into another role that she could do during the notice period if as she suggests she was fit to return to work in her substantive role. The most compelling part of the evidence before us however is the documented medical evidence and the claimant’s own reporting of her condition after treatment on 12 August 2022. This evidence in our view suggests that the claimant in fact was not fit to return to work during the notice period.[71]The claimant states that she should have been actively assisted by the respondent to get a new role. We are satisfied that being provided with available roles and being informed that she was to have priority interviews for roles she was fit and qualified for was reasonable and that all the respondent could have done further is to identify a role for the claimant. In our view it was the claimant who knew what she could do and what she could not do and she could have identified roles she was interested in but did not do so.[72]The claimant argues that the overall level of absence could not have been a concern because Mr Rowe would have reinstated the claimant had she shown that she was fit to return to work during the notice period. At the point of the appeal Mr Rowe was carrying out a limited exercise which was concerned with deciding whether there were reasons to set aside the original dismissal. Mr Rowe was not himself seeking to make an original decision relating to the dismissal. In our view that Mr Rowe was in some circumstances willing to reinstate the claimant does not mean that there would not have been concern about the claimant’s overall level of sickness absence to justify dismissal.[73]The claimant complains that there was a failure to refer the claimant to occupational health during the appeal when the claimant reported that she was not fit to return to work. The mere fact that the claimant was fit to return at the date of hearing the appeal does not necessarily impugn the dismissal in May. Mr Rowe was not making an original decision in respect of the dismissal but carrying out a review of the decision made in May by Mr Hawkins. While he might have been capable of making the referral to occupational health at the appeal Mr Rowe explained that he did not view his role as seeking out new evidence but that he wanted to ascertain whether there was evidence that existed and could have been presented at the dismissal that had not been. This is in our view is an approach that a reasonable employer might take.[74]The claimant also criticises Mr Hawkins for failing to take reasonable steps to ascertain “the true medical position” or to wait for a proper diagnosis. The evidence was what it was and in fact had an attempt been made to find further evidence it is irrational to consider that it would have been different from what the position was presenting as at the date of dismissal. There was no diagnosis and no time scale for any treatment. The changes that occurred afterwards were not planned or anticipated at the point of dismissal. The claimant makes no reference to a possible remedy to her situation coming from a chiropractor. This criticism of Mr Hawkins is in our view unjustified on the circumstances of this case as they were at the dismissal. We consider that the duty of the employer is to obtain proper medical advice: they are not required to pursue every possible avenue of treatment or a detailed examination of the claimant.[75]The claimant contends that the respondent did not follow their own procedures as set out at paragraph 22 of the Managing Health and Attendance Policy and Procedure. The claimant complains that there was no management case for the final hearing and that the claimant was taken by surprise because it was not made clear that dismissal was “very much really on the agenda” on this occasion.[76]The respondent took the claimant through the managing sickness procedure from January 2020 with a stage 1 meeting and she never came out of the procedure before her dismissal in May 2022. The triggers for the claimant to move through the stages were met in 2020 and the only reason that the claimant did not move to stage 3 in June 2020 was because the impact of covid was taken into account. The respondent moved the claimant into stage 3 in March 2021 and the claimant remained in that stage until her dismissal in May 2022. The claimant was provided with an invitation to the stage 3 formal attendance hearing on 11 February 2022 for a hearing to take place on 3 March 2022. This letter set out clearly the issues for discussion and the claimant was told what the possible outcomes were, including termination of her employment. The claimant was told that she was entitled to be accompanied by a work colleague or a trade union representative. At the meeting on the 3 March 2022, the claimant was informed that the meeting would adjourn for the claimant to obtain a proper diagnosis and it was suggested that the meeting would reconvene after 11 April 2022. The outcome letter set out clearly what he respondent’s position was. The claimant was invited to attend a stage 3 Formal Attendance hearing on 13 May 2025. The claimant was informed of the matters to be discussed; the claimant was informed of the possible outcomes which included a statement of termination of her employment for two discrete reasons; the claimant was informed that she had the right to be accompanied by a colleague or a trade union representative.[77]We do not consider that there is any unfairness to the claimant in the way she was notified about the nature of the hearing to take place or the possible consequences.[78]The claimant contends that there was a failure to make reasonable adjustments and that this therefore also renders the decision to dismiss the claimant unfair. For the reasons set out below we do not consider that there was a failure to make reasonable adjustments.[79]Taking all the circumstances into account, including the claimant’s disability, the action taken by the respondent, and the matters which occurred after the claimant’s dismissal, we do not consider that the claimant’s complaints about unfair dismissal or discrimination arising in consequence of disability are well founded and we dismiss the claims. Reasonable adjustments[80]Where a provision, criterion or practice of the respondent puts a disabled person, the claimant, at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the respondent is required to take such steps as it is reasonable to have to take to avoid the disadvantage (see section 20 Equality Act 2010).[81]Where there is such a complaint the Tribunal must identify the provision criterion or practice (PCP); the identity of non-disabled comparators; and the nature and extent of the substantial disadvantage.[82]The claimant relies on two PCP’s(a) requiring employees to perform their full contractual duties in order to avoid the risk of dismissal;(b) requiring employees to have a certain level of attendance at work in order to avoid being dismissed for capability.[83]The parties agree that the respondent required employees to have a certain level of attendance at work in order to avoid being dismissed for capability.[84]The respondent denies that the respondent required employees to perform their full contractual duties in order to avoid the risk of dismissal. The claimant contends that the respondent was telling the claimant that she needed to be able to carry out her full contractual duties to avoid dismissal. The claimant further contends that the respondent considered the claimant would be unable to fulfil this requirement and that, they refused to consider finding her temporary alternative duties. The respondent says that it permitted alternative duties where appropriate, phased return to work and reduced hours. Further that the claimant benefitted from the latter two adjustments.[85]The conclusion of the Tribunal is that the evidence shows that no such PCP applied in this case. The respondent did not require employees to perform their full contractual duties in order to avoid the risk of dismissal; the respondent considered various options where there was challenge to the ability of an employee to do the full contractual duties. This included alternative duties, reduction in hours, phased return to work and a consideration of recommendations or advice from occupational health.[86]In respect of the PCP of requiring employees to have a certain level of attendance at work in order to avoid being dismissed for capability, the claimant says that she suffered a substantial disadvantage in that due to the claimant’s pain and exacerbation of the claimant’s disabilities the claimant was unable to carry out CPR and had difficulties lifting.[87]The claimant says that she was “more likely to breach the respondent’s sickness policy and be subject to the various stages, particularly, given in her case, there is no evidence to support that adjusted sickness absence targets were in place.”[88]The respondent on the other hand contends that the claimant has not pleaded that she was absent because of her disabilities or that her disabilities prevented her maintaining effective service. Requiring the claimant to maintain a certain level of attendance did not mean she was disadvantaged by being unable to carry out CPR and lifting.[89]The adjustments that the claimant relies on are as follows: allowing the claimant to work administrative duties for a temporary period, a phased return to work, alternative employment, allowing the claimant more time to make a recovery, and finally not dismissing the claimant. The respondent states that these adjustments do not address any substantial disadvantage and are not reasonable adjustment. In respect of alternative administrative duties, the respondent contends that the claimant was unable to work for large periods of time when she was not fit to carry out any duties. The respondent also relies on the event in 2020 when the claimant was unfit to work until March 2020, following which alternative duties were located by 9 April 2020 which was followed by the claimant passing a fitness test and fit to return to work in a few weeks. The respondent also points out that the claimant was not available to work alternative duties at all in 2022 until Mid-March 2022, when the claimant had no prognosis and no foreseeable return to work date. The conclusion of the Tribunal having considered the competing contentions is that the provision of alternative duties was not a matter that amounts to a reasonable adjustment as it would not have been able to get the claimant back to work.[90]The claimant was provided with phased return to work.[91]The claimant did not apply for any of the vacancies that were flagged for her, the claimant did not consider that the roles were suitable.[92]As to the contention that the respondent should have allowed the claimant more time to make a recovery, and not dismissed the claimant, the respondent states that these are not reasonable adjustments as they had no prospect of alleviating any disadvantage. The Tribunal considers that the decision to dismiss the claimant was reasonable at the time that the decision was made. The claimant had a history of absence that justified dismissal and at the point that the claimant was dismissed there was no prognosis and no foreseeable return date.[93]The claimant’s complaints are not well founded and are dismissed. Approved by: