Mr E Gitemi v Bedfordshire Hospitals NHS Foundation Trust: 3314945/2023
JUDGMENT
[1]The claimant’s claims of unfair dismissal, disability discrimination and victimisation are dismissed.[2]The claimant’s claim of direct race discrimination is dismissed upon withdrawal.REASONS
[1]The claimant was employed by the respondent on 16 June 2014, latterly as a Sterile Services Technician. He was dismissed with immediate effect on 25 August 2023 and paid 12 weeks wages in lieu of notice. By a claim form presented on 18 December 2023, following a period of early conciliation from 6 November to 18 December 2023, the claimant brings complaints of unfair dismissal, race and disability discrimination and victimisation.[2]The respondent defends the claims.[3]At this hearing, the claimant withdrew his claim of race discrimination.The issues
[4]The issues have been set out in a case management summary by Employment Judge Dick following a CMPH held on 20 June 2024. Due to the way the case has developed, the time limits, disability issue , direct race discrimination and remedy sections have been omitted.[5]The remaining issues are therefore as follows:- “1. Unfair dismissal1.1 The parties agree that the claimant was dismissed. What was the reason or principal reason for dismissal? The respondent says the reason was capability (repeated absence).1.2 If the reason was capability, 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. The tribunal will usually decide, in particular, whether:1.2.1 The respondent genuinely believed the claimant was no longer capable of performing their duties;1.2.2 The respondent adequately consulted the claimant;1.2.3 The respondent carried out a reasonable investigation, including finding out about the up to date medical position;1.2.4 Whether the respondent could reasonably be expected to wait longer before dismissing the claimant;1.2.5 Dismissal was within the range of reasonable responses.” 2. Discrimination arising from disability (Equality Act 2010 section 15)2.1 Did the respondent treat the claimant unfavourably by dismissing him?2.2 Did the following things arise in consequence of the claimant’s disability? 2.2.1 Taking time off work (sickness absence)2.3 Did the respondent dismiss the claimant because of that sickness absence?2.4 Was the treatment a proportionate means of achieving a legitimate aim? The tribunal will decide in particular:2.4.1 Was the treatment an appropriate and reasonably necessary way to achieve those aims;2.4.2 Could something less discriminatory have been done instead;2.4.3 How could the needs of the claimant and the respondent be balanced?2.5 Did the respondent know or could it reasonably have been expected to know that the clamant had the disability? From what date? 3. Victimisation (Equality Act 2010 section 27)3.1 Did the claimant do protected acts as follows3.1.1 On 15th July 2021 at 03.45, an email sent to Wayne Keane and Theresa Bottaro (page 257 in the hearing bundle)3.1.2 On 13th December 2021 at 17.27, an email sent to Charishma Chauhan (pages 281-287 in the hearing bundle)3.1.3 On 15th August 2022 at 0.31, an email sent to Theresa Bottaro, Wayne Keane and Cheryl Gallagher (page 448 of the hearing bundle).3.2 Did the respondent dismiss the claimant and by doing so, did it subject the claimant to detriment?3.3 If so, was it because the claimant did a protected act?” The law Unfair dismissal 4. Section 98 of the Employment Rights Act 1996 provides as follows:- “98 General.(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, … (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.” Disability discrimination 5. Section 15 of the Equality Act 2010 provides as follows:- “15 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.” VictimisationThe law
[6]Section 27 of the Equality Act 2010 provides as follows:- “27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”[7]In addition, Mr Edwards, on behalf of the respondent, provided us with written closing submissions which includes detailed submissions on the law. We record here that we have read his submissions and taken those legal principles into account.The evidence
[8]We had a hearing bundle of 826 pages.[9]We had witness statements and heard evidence from:(i) The claimant (x 3 emails)(ii) Mr Wayne Keane, Head of Decontamination Services for the respondent, the claimant’s line manager.(iii) Mr Daniel Roberts, Head of Operational Estates for the respondent, who dismissed the claimant.(iv) Mr Dean Goodrum, Director of Restates and Facilities for the respondent, who heard the claimant’s appeal against dismissal.[10]We also had a chronology and cast list from the respondent.[11]Mr Edwards, on behalf of the respondent, provided us with written closing submissions. Disability[12]At a public preliminary hearing heard on 25 September 2024, Employment Judge Bedeau ruled as follows: “It is ordered that the claimant is a disabled person by reason of his sciatica and right shoulder pain, but not in respect of his high blood pressure.”[13]This was held to be “at the material time” which we have taken to be from 2019 onwards. The claimant and the respondent’s witness statements[14]At the outset of this hearing I went through with the claimant and the respondent what material we had. I indicated that we had the witness statement bundle including the claimant’s emails and the three witness statements for the respondent’s witnesses. At that stage, the claimant did not raise any issue about not having the respondent’s witness statements.[15]The claimant attended with a carrier bag full of documents, including the hearing bundle. It was assumed he had the respondent’s witness statements.[16]When Mr Goodrum came to give evidence at 11.45 on day 2, 4 March 2025, it transpired that the claimant said that he did not have the respondent’s witness statements.[17]Mr Edwards informed us that the respondent’s witness statements were served on the claimant by email at 13.37 on 31 January 2025. He further informed us that the respondent’s witness statements were sent by first class post to the claimant on 6 February 2025. On 12 February 2025, the claimant confirmed that he had received the hearing bundle electronically.[18]We adjourned at 12.10pm intending to resume at 2pm giving the claimant nearly two hours to consider the respondent’s witness statements.[19]We resumed at 2pm on 4 March 2025 and decided to adjourn for the rest of the day to allow the claimant time to consider the respondent’s witness statements and decide if he wanted to have the respondent’s witnesses recalled to put further cross examination to them. The claimant’s absence on 5 March 2025[20]At 10am on 5 March 2025, the claimant was not in attendance. The claimant was called on his mobile at 10.10 and there was no answer. The claimant was called on his mobile at 10.35. The first call received no answer. On the second call, the call was answered but, after the clerk introduced herself, nothing was said at the other end and after about five seconds the call was terminated.[21]The claimant was emailed at 10.46 and asked what the position was.[22]At 11.35 the claimant was called again. There was no answer. No response was received to the email.[23]In the circumstances we decided to proceed in the absence of the claimant at 11.45.[24]The respondent confirmed that they had had no contact from the claimant. Postscript On 24 March 2025 at 11.46 the claimant sent an email to the tribunal as follows:- “Dear Sir/Madam, I am the claimant of the above mentioned hearing held before the tribunal at the beginning of this month. I was not able to attend the hearing on the last day due to some physical challenge thus I didn’t not get to hear what happened next. I humbly request the tribunal to inform me if a ruling was passed or is in the process of being passed. Kind regards Eric N Gitemi (claimant)”The facts
[25]The claimant was employed by the respondent on 16 June 2014.[26]On 15 October 2018 he started work as a Sterile Services Technician. The Sterile Services and Endoscope Decontamination Department supplies sterile and disinfected equipment to the wards, departments and theatres in the Luton and Dunstable Hospital and to other users. The claimant’s role involved the decontamination, preparation, packing, sterilisation and distribution of items to the patient areas within the hospital and collating orders for users outside the hospital. Mr Keane gave evidence which we accept that the department was open 8am-9pm. Generally two shifts were worked, 8am-4pm and 1pm-9pm. The claimant worked in the Sterile/Non Sterile Team (or “Clean” and “Dirty”). Staffing levels would vary according to the time of day but generally speaking the expectation is that three staff would be working in the Dirty section and one or two in the Clean section. Obviously, sickness/holiday etc could affect that on occasions.[27]The respondent has a Managing Sickness Absence Policy. It was developed in consultation with the Human Resources Department Staff side representatives which included substantial Trade Union involvement from Unison, the RCN, Unite and GMB.[28]The policy contains the following:- “4 Measuring sickness absence 4.1 Short term sickness absence4.1.1 The trust uses the Bradford Score methodology for measuring sickness absence. The equation for calculating an individual Bradford Score is as follows: E x E x D Where: E = Episode D = Total number of days For example: 5 episodes totalling 7 days: 5 x 5 x 7 = 1754.1.2 The trust trigger point for taking formal action in accordance with the Managing Sickness Absence Policy is 150…”[29]The procedure for managing short term sickness absence involves three stages. Stage 1 is “informal Return to Work interview (RTW)” “11.1.3 The line manager will update the employee in respect of their current Bradford Score at the RTW interview and will discuss the implications of this with the employee, in line with this policy. If the Bradford Score is 150 or above, then the employee will be required to attend a formal Stage 2 sickness absence meeting. 11.2 Formal Stage 2 meeting11.2.1 In order for the manager to effectively manage sickness absence, he/she will regularly review absence data and take appropriate action when the employee reaches a Bradford Score of 150 points or more on a rolling 12 month period, irrespective of whether the periods of absence are covered by original copies of medical certificates.11.2.2 When an employees absence level has triggered a Bradford Score of 150 or more (pro rata if appropriate), a formal Stage 2 meeting should be arranged by the line manager. This Stage 2 meeting should be held within four weeks of the employee breaching the trust Bradford Score trigger of 150. … 11.2.6 There may be a number of Stage 2 review meetings with the employee to discuss their sickness absence and attendance at work, particularly if the levels of sickness absence increase.”[30]Occupational Health advice may be taken.[31]The policy goes on:- “11.2.10 Whether or not an OH assessment is sought, there are a number of possible outcomes of the meeting as follows:-(a) To instigate a review period over a defined timescale, during which a specified improvement in attendance is expected from the employee;(b) To consider possible reasonable adaptations to working practices/conditions;(c) To offer any appropriate support, assistance, training or development; …”[32]The policy goes on:- “11.3 Stage 3 – Capability hearing 11.3.1 If after a written warning has been issued and the improvement target set out at the previous Stage 2 outcome letter is not met, then a Stage 3 capability hearing should be arranged to consider, extending the monitoring period or termination of employment on the grounds of unsatisfactory attendance due to persistent sickness absence. … 11.3.8 Depending upon the discussions at the meeting, the senior manager hearing the case may:(a) Make the decision to terminate the employment of the member of staff, on the grounds of unsatisfactory attendance due to persistent sickness absence;(b) extend the review period;(c) extend an existing warning;(d) consider alternative options.”[33]We had, as part of a sickness absence report dated 25 August 2023, a summary of all sickness absence taken by the claimant from October 2016 until June 2023. In 2018 the claimant had two episodes of sickness totaling six days for nervous system disorder and headache/migraine.[34]In January and February 2019 the claimant had three further episodes of sickness absence totaling six days for gastro intestinal problems and back problems.[35]The Bradford Score would therefore have been 5 x 5 x 12 = 300.[36]The claimant was therefore invited to a Stage 2 meeting on 15 April 2019. Whilst we do not have the Stage 2 meeting outcome letter, the notes of the meeting indicate that it was adjourned for the claimant to be referred to Occupational Health.[37]Occupational Health reported on 2 May 2019. Occupational Health recommended that due to the claimant’s back pain he should be rotated to different areas regularly and should be able to sit so that he did not spend excessively long periods on his feet.[38]The claimant had three further episodes of sickness absence covering five days in June, July and August 2019. These were for back problems, gastrointestinal problems and cold, cough, flu. Consequently, the claimant’s Bradford Score was 7 x 7 x 12 = 588.[39]The claimant was referred for a Stage 2 meeting on 17 September 2019. The meeting notes suggest that the claimant had been offered physiotherapy but had not acted on that offer. The notes record that the outcome was to refer to Occupational Health and to continue to monitor the claimant.[40]On 4 September 2019, the claimant was re-referred to Occupational Health but missed the appointment on 11 September 2019.[41]The claimant attended an Occupational Health appointment on 2 October 2019 in relation to a cough and sore throat. He was deemed fit for work and no adjustments were required.[42]After September 2019, the claimant had an episode of sickness absence from 31 December – 3 January 2020 for four days due to gastrointestinal problems.[43]During 2020 the claimant had eight episodes of sickness absence covering 25 days. Only one day related to the claimant’s disability as it is recorded as “back problems.” Based on 2020 the claimant’s Bradford Score would be 8 x 8 x 25 = 1,600.[44]No Stage 2 meetings were held with the claimant during 2020. We were not told why this was, but we presume that the covid pandemic and lockdown probably influenced this.[45]In April 2021 Wayne Keane attempted to have a further Stage 2 meeting with the claimant. The claimant asked for more time to arrange representation. The meeting could not go ahead as the claimant went off sick with headache and migraine.[46]Before Wayne Keane was able to reschedule the Stage 2 sickness meeting, the claimant raised allegations against Wayne Keane in an email dated 15 July 2021. This email alleged harassment, bullying, racial and gender bias and we find that this was a protected act.[47]It would appear that further Stage 2 meetings with the claimant were effectively put on hold pending dealing with the claimant’s grievance.[48]On 13 December 2021 the claimant sent an email to Charishma Chauhan. In this email the claimant complains that he had been denied training crucial to his progression in the department and that training had been accorded to others of a different race and gender. Accordingly, we find that this was a protected act.[49]During the whole of 2021 the claimant had 19 episodes of sickness covering 41 days. His Bradford Score was therefore 19 x 19 x 41 = 14,801.[50]The claimant was invited to a Stage 2 meeting on 31 March 2022.[51]We have the outcome letter dated 1 April 2022. The claimant’s Bradford Score depends on when the calculation is made due to the fact that it was done on a rolling 12 month basis. The outcome letter records that since 31 March 2021 the claimant had been absent on 24 occasions totalling 59 days which gave him a Bradford Score of 33,984. All the claimant’s various medical ailments were discussed and a further referral to Occupational Health was to be made. The letter concludes:- “I advised you that you have an exceptionally high Bradford Score, and we wish to work with you to support you in bringing this down to acceptable levels, however I expected you to show an immediate and dramatic improvement in your sickness absence record and Bradford Score and that this is therefore sustained. It was explained to you at the meeting that if there is no sustained improvement in your Bradford Score and levels of attendance within the next 12 month period, then a further formal meeting will take place which may result in your being issued with a formal warning, which may ultimately lead to your dismissal from the Trust.”[52]On 15 August 2022, the claimant sent an email to Theresa Bottaro. This refers to management’s habit not to train certain individuals due to their colour and gender. Accordingly we find that this was a protected act.[53]On 17 August 2022, the claimant attended the fourth Stage 2 meeting. We have the outcome letter dated 1 September 2022. This records that since the third Stage 2 meeting the claimant had had a further three episodes of sickness absence totalling four days. The outcome letter states as follows:- “We discussed any reasonable adjustments that could be put in place and agreed that the current adjustments that have already been put in place as per the recommendation from OH are; job rotation, avoiding heavy manual handling and taking a short break if experiencing back/shoulder pain where appropriate; you did not feel that any other adjustments were required. During the meeting you also expressed that you were grateful for the new chair that was provided as this has helped with your back. I also explained that if you do have further thoughts of how you can be supported in work to speak to me and we can discuss.” And goes on: “Following our discussions the meeting was adjourned. When we reconvened I advised you that I had made the decision to continue to closely monitor your absence from this point forward and in accordance with the Trust’s Managing Sickness Absence policy, I confirmed with you that I have set a rolling 12 month attendance level target in respect of your attendance at work, based on the average number of days of absence for the employee who does not have the underlying health condition(s). The attendance target set for you is no more than 10 days absence due to sickness in the next 12 months, provided that these sickness absences are all related to the underlying conditions of; back/shoulder pain, headache/migraine, heart/palpitation problems or gastrointestinal problems. Should you exceed this target within the next 12 months, I have confirmed that we will schedule a further Stage 2 meeting to review your sickness levels and determine what further action, if any, need to be taken at that time. I also made you aware that if you have any sickness absences not relating to your underlying health condition(s) and these cause your Bradford Score to exceed 150, a Stage 2 meeting under the short term sickness procedure of the trust managing sickness absence policy will be convened to review your sickness absence levels and determine what further action, if any, needs to be taken at that time.”[54]For the calendar year 2022 the claimant had 20 episodes of sickness absence totaling 54 days. Based on that 12 months the claimant’s Bradford Score was 20 x 20 x 54 = 21,600. 5 episodes totaling 6 days arose in consequence of the claimant’s disability.[55]On 28 March, the claimant had an unrelated disciplinary hearing. The claimant did not attend, and the outcome was a final written warning. The respondent makes the point, which we accept, that if the respondent was seeking to engineer the claimant’s removal as an employee then that would have been an opportunity to do so That they did not do so suggests to us that they had no such motive and we so find.[56]A fifth Stage 2 meeting was held on 19 April 2023. We have the outcome letter dated 22 April 2023. Since the fourth Stage 2 meeting on 17 August 2022 the claimant had had 14 episodes of sickness absence totalling 54 days. That would give the claimant a Bradford Score of 14 x 14 x 54 = 10,584. 19 days related to the claimant’s disabilities (back problems and other musculoskeletal). 29 of the days related to the claimant’s underlying health conditions and therefore exceeded the 10 days target. As regards non-underlying health conditions, the claimant had 3 episodes totalling 25 days which would given him a Bradford Score of 3 x 3 x 25 = 225. That exceeded the target of 150.[57]The outcome letter recites as follows:- “By way of support, I had agreed to continue with the same adjustments to duties described above and you agreed there were no other adjustments required. I also explained to you that if you feel you need additional support that you can come and speak with me. Following our discussions the meeting was adjourned. When we reconvened I advised you that I had made the decision to progress your case to a Stage 3 capability hearing. This is because you have breached the attendance target set out in the Stage 2 outcome letter dated 1 September 2022. The target was for no more than 10 days absence due to the underlying health conditions of back/shoulder pain, migraine, heart/palpitations problems or gastrointestinal problems. You exceeded this target in December 2022. I advised that I would complete a sickness absence management report and this would be sent to a senior manager. You will then be invited to attend a formal Stage 3 Sickness Absence Capability hearing. The possible outcomes of this hearing were discussed with your at our meeting.”[58]Wayne Keane told us that dismissal was one of the possible outcomes discussed at the meeting.[59]We find that Wayne Keane was aware of the claimant’s protected acts. We find that Wayne Keane did not escalate the claimant to a Stage 3 absence hearing because of those protected acts.[60]The Stage 3 meeting was held on 25 August 2023. Wayne Keane had produced a sickness absence report which detailed the claimant’s history of sickness absence. It highlighted that the latest Occupational Health report dated 7 February 2023 had not been able to identify any further reasonable adjustments that could be considered to support the claimant or improve his attendance at work other than the adjustments already in place and agreed.[61]Whilst we have not detailed every occasion the claimant was referred to Occupational Health, he was in fact referred a total of 10 times during this whole period.[62]The Stage 3 meeting was held by Daniel Roberts. It is notable that during the course of the meeting Mr Roberts asked why a Stage 3 had only just been brought and why it had not been brought sooner. Wayne Keane responded:- “I think, we wanted to really give Eric every chance and adjustments to be put in place. We have had repeated assurances that it would be something that would help him manage his underlying health issues. I supposed we wanted to exhaust all possible ways or anything that we can do to improve his attendance in terms of support. So we went through part of a lot of Stage 2s with different adjustments so, it’s really about exhausting all support that we can do.”[63]Daniel Roberts told us that he did not know about any of the claimant’s protected acts. We accept that evidence.[64]Daniel Roberts decided to terminate the claimant’s employment. The meeting notes record him saying:- “The prospect of you sustaining your attendance over the coming months, I am not confident that you are going to be able to sustain an acceptable level of attendance based on the facts that you have had several days recorded since your last Stage 2 meeting as well.”[65]Since 19 April 2023, the claimant has had two further episodes of sickness absence totalling three days.[66]The Stage 3 outcome letter is comprehensive and makes clear that Daniel Roberts took into account the following:• Your full sickness absence record.• The prospect of maintaining the agreed attendance target.• Occupational Health or other medical reports and advice available.• The impact of your absence on the provision of service delivery.• Opportunities for redeployment, retraining or reasonable suitable work adjustments.[67]We note that in his oral evidence the claimant himself stated that Wayne Keane was not a bad man, and that the respondent made all due efforts to accommodate his disabilities. His principal complaint related to staffing levels with the claimant asserting that his team was always short staffed. The reasonable adjustment he appears to have been advancing was greater staffing. We do not see how that would have assisted the claimant to do his job, especially as he did not ask for assistance from those who were there already working in a different team. During his oral evidence, the claimant stressed to us that he worked at his own pace. Further, even though he had been instructed not to undertake certain tasks he nevertheless did them.[68]The claimant appealed and his appeal was heard by Mr Goodrum and others. Mr Goodrum told us, and we accept, that he did not know that the claimant had made the protected acts. The appeal was heard on 20 October 2023. The appeal was not successful.Conclusions
[69]We find that the reason for the claimant’s dismissal was capability. We find that the respondent genuinely believed that the claimant was likely to be incapable of sustaining an acceptable level of sickness absence in the future and that that belief was based on reasonable grounds following a reasonable investigation.[70]We find that the decision to dismiss the claimant was within the range of reasonable responses of a reasonable employer.[71]Dealing with the particular questions in the list of issues:71.1 We find that the respondent genuinely believed that the claimant was no longer capable of performing his duties in the sense that he was likely to be unable to sustain an acceptable level of sickness absence in the future.71.2 We find that the respondent more than adequately consulted the claimant. He had 10 Occupational Health referrals and 5 Stage 2 meetings over the course of 4 ½ years.71.3 We find that the respondent carried out a reasonable investigation including finding out the up to date medical position.71.4 We find that the respondent could not reasonably be expected to wait longer before dismissing the claimant.71.5 We find that the dismissal was within the range of reasonable responses.[72]We find that some of the claimant’s time off work (sickness absence) arose in consequence of the claimant’s disability. In 2022, 5 out of 20 episodes related to his disability and 6 days absence out of 54 related to his disability. We find that the claimant’s sickness absence due to disability contributed only a relatively small amount of the total days absence.[73]We find that the respondent did dismiss the claimant because of, in part, that sickness absence. However, we find that the dismissal was mainly because of sickness absence unrelated to the claimant’s disabilities.[74]We find that options less serious than the termination of the claimant’s employment were considered and reasonably rejected. Redeployment was not feasible given that the claimant’s sickness absence continued to be poor even when reasonable adjustments had been provided. Other roles would involve more manual handling.[75]In any event, we find that the treatment was a proportionate means of achieving a legitimate aim. We accept that the legitimate aims were as follows:-• To provide a suitable and effective service delivery.• To ensure patient safety and quality of care via that service delivery.• To ensure the health safety and wellbeing of all employees, including both the claimant and his colleagues who would cover for him in his absence.• To run the service at the lowest reasonably feasible cost.• Using rostered staff in place of bank and/or agency staff who would be more expensive.• To provide a fair and consistent approach when managing attendance.[76]We note that Daniel Roberts calculated that since the 6 September 2021 the claimant had been absent for 91 working days at a cost of £7,814.63 to the respondent. He estimated that the extra cost of replacing the claimant’s absences by agency or bank work would be about £15-20,000.[77]We find that the claimant had been given more than sufficient opportunity to improve his attendance record and had failed to do so.[78]We find that dismissing the claimant was a detriment.[79]We find that the decision to dismiss the claimant and to reject his appeal was not because he did a protected act.[80]For the above reasons, the claimant’s claims are dismissed. Approved by: