Case No 4101680/2017Venue GlasgowHearing 22, 23 and 24 May 2019 (Final Hearing); 17 July 2019 (Closing Submissions / Members’ Meeting); 29 July 2019, and 7, 9 and 23 August 2019 (Further Written Representations); and 23 December 2019 (Deliberation)
Between
Mr David PickupClaimantHMRCRespondent
Before
Employment Judge I McPhersonDate 6 January 2020
JUDGMENT
The unanimous Judgment of the Employment Tribunal is that the respondents did not unlawfully discriminate against the claimant on grounds of disability in contravention of the Equality Act 2010, as alleged, and accordingly all of his complaints against the respondents fail, and the entire claim is dismissed by the Tribunal.
REASONS
[1]This is a case which first called before the full Tribunal on Wednesday, 22 May 2019, for a 3-day Final Hearing for its full disposal, including remedy if appropriate, further to Notice of Final Hearing issued by the Tribunal to both parties on 1 March 2019. E.T. Z4 (WR)[2]In the event, while we managed to finish the evidence within the allocated 3 day sitting, there was insufficient time to hear parties’ closing submissions and, accordingly we ordered written submissions, which we then considered at our Members’ Meeting on Wednesday 17 July 2019, as per the further Notice of Final Hearing issued to parties on 30 May 2019, confirming that parties were not required to attend.[3]While we made some progress at that Members’ Meeting, we did not then conclude our private deliberations, and, as the Tribunal advised parties’ representatives, by correspondence issued on 26 July 2019, we decided that a further ½ day Members’ Meeting would require to be arranged in due course.[4]There was subsequently an unfortunate, but unavoidable, series of delays in our Judgment being progressed. Further, as detailed later in these Reasons, there was subsequent post Final Hearing correspondence from both parties’ representatives, which we have also had to take into account.[5]The delay in this Judgment being issued, since 17 July 2019, had initially been down to the Employment Judge’s other judicial commitments, as well as some annual leave. Yet further delay was thereafter occasioned by the Employment Judge’s sick leave absence from 16 September 2019 to 25 November 2019. Parties were advised of that absence by the Tribunal on 16 September 2019, at which stage it was not clear when the Judge would return to work, and be able to progress this Judgment and Reasons.[6]The Judge apologises to both parties for the further delay in concluding his draft Judgment and Reasons for discussion with the lay members of the Tribunal, which has resulted in consequential delay in issuing this Judgment. The Tribunal concluded its private deliberations, by correspondence with the Members, and without the need for a further Members’ Meeting, to take account of the evidence heard, closing submissions made, and subsequent written representations from both parties. Claim and Response[7]Following ACAS early conciliation between 21 March and 21 April 2017 the claimant, then acting on his own behalf, lodged his ET1 claim form with the Tribunal on 19 May 2017. He complained that he had been discriminated against on the grounds of disability, leading to his dismissal from employment by the respondents.[8]In the event that his claim was successful, the claimant indicated that he sought to get his old job back (reinstatement) and compensation. By the time of this Final Hearing before us, the claimant had departed from reinstatement as his preferred remedy, and he sought an award of compensation only from the Tribunal, in the event that he was successful with his claim against the[9]His claim was accepted by the Tribunal on 6 June 2017, and a copy was served on the respondents requiring them to lodge an ET3 response by 4 July 2017. By Notice of Claim and Notice of Preliminary Hearing served on both parties, by letter from the Tribunal dated 6 June 2017, parties were advised that a Case Management Preliminary Hearing was to be held on 4 August 2017 to conduct a preliminary consideration of the claim with the parties and make Case Management Orders[10]No ET3 response was lodged on behalf of the respondents by the due date of 4 July 2017. Following referral to Employment Judge Jane Garvie for her consideration of issuing a Rule 21 Default Judgment, Judge Garvie noted that no response had been submitted on behalf of the respondents, and she requested a response be submitted by no later than 17 July 2017, as per letter sent to the respondents on 10 July 2017, with copy sent to the claimant for his information. She instructed that the Case Management Preliminary Hearing date of 4 August 2017 be kept in place.[11]On 10 July 2017, the claimant e-mailed the Tribunal requesting a postponement of the Case Management Preliminary Hearing to be held on 4 August 2017, as he was seeking advice from his trade union, the PCS. Following consideration by Employment Judge Laura Doherty, and as per letter to the claimant of 13 July 2017 from the Tribunal, his request to postpone the Preliminary Hearing listed for 4 August 2017 would be considered once the ET3 response had been received or on expiry of the reply date given of 17 July 2017, and the Tribunal would revert back to him on that matter in due course.[12]On 20 July 2017, Mr David Walker, partner with Morton Fraser LLP, Solicitors, Glasgow, e-mailed the Glasgow Tribunal office, further to a telephone conversation, confirming that he had been instructed by the respondents that afternoon in respect of the claim, where he understood the ET3 response was overdue, and that he had been informed that the respondents had found out the claim had been lodged as a result of being contacted by ACAS, as they had no record of receipt of an ET1.[13]Further, later on 20 July 2017, Dr Andrew Gibson, Senior Solicitor with Morton Fraser LLP, Solicitors in Glasgow, e-mailed the Tribunal, making an application in terms of Rule 5 of the Employment Tribunals Rules of Procedure 2013 to extend the time limit specified for lodging their ET3 response.[14]He submitted that the extension of time would be in the interests of justice, as to bar the respondents’ participation in the proceedings would be disproportionate to the minimal impact of the delay which had occurred which had not caused the claimant any prejudice or caused any delay in the proceedings as all outstanding matters could be resolved prior to, or at, the Preliminary Hearing fixed for 4 August 2017. Dr Gibson enclosed the respondents’ ground of resistance in skeletal form.[15]It was explained that the claimant, who was employed by the respondents as a Customer Service Adviser, at their East Kilbride office, was dismissed on 22 December 2016, and the reason for his dismissal was an unsatisfactory level of attendance, and that the respondents had followed proper procedure in dismissing the claimant on the grounds of unsatisfactory attendance.[16]It was denied that the claimant is a disabled person pursuant to Section 6 of the Equality Act 2010, and further denied that the respondents had discriminated against him because of his purported disability, as alleged or at all. As the claimant had not specified the statutory basis upon which his claim for disability discrimination relied, the claimant was called upon to provide further specification of his claim in order that the respondents could set out the basis for their grounds of resistance.[17]Further, as the claimant had ticked boxes in the ET1 claim form that if he was claiming unfair dismissal, and that he wished reinstatement or reengagement, the respondents stated that the claimant did not have the requisite 2 years’ qualifying service to raise a unfair dismissal claim, as his employment start date was 15 June 2015 and, accordingly, that the Tribunal does not have jurisdiction to hear an unfair dismissal claim or order reinstatement or re-engagement.[18]On 25 July 2017, following referral to Employment Judge Robert Gall, he decided it was appropriate to consider the respondents’ application for an extension of time to lodge the ET3 response without a Hearing and, having considered that application, he extended the time and so the ET3 response submitted on 20 July 2017 was accepted by the Tribunal, and a copy sent to the claimant, and to ACAS. Case Management and Procedural History of the Claim[19]Thereafter, on 2 August 2017, Employment Judge Jane Garvie postponed the Preliminary Hearing arranged for 4 August 2017, on the grounds that the claimant was hoping to get representation, and parties were sent a fresh date listing stencil to assign such a Preliminary Hearing in September 2017. There was a lack of response from the claimant thereafter indicating that he was seeking legal advice.[20]On 31 October 2017, following instructions from Employment Judge Susan Walker, the Tribunal wrote to the claimant directing that he provide suitable dates for a Preliminary Hearing between 15 December 2017 and 15 January 2018, and that he do so no later than 10 November 2017, so that the Preliminary Hearing might be listed.[21]Thereafter, on 13 December 2017, the case was listed for a Case Management Preliminary Hearing to be held on Thursday, 11 January 2018. The claimant was reminded that he must return a completed Preliminary Hearing Agenda, ahead of the date fixed for that Preliminary Hearing, which he had never done due to the previous Case Management Preliminary Hearing being postponed, and that he must copy this to the respondents, who in turn must complete and return their Agenda and copy it to the claimant.[22]On 8 January 2018, Dr Gibson e-mailed the Tribunal, with copy to the claimant, enclosing the respondents’ Preliminary Hearing Agenda, for the Preliminary Hearing on 11 January 2018, and stating that he had not received any Preliminary Hearing Agenda from the claimant.[23]When the case called, on 11 January 2018, for that Case Management Preliminary Hearing, before Employment Judge Claire McManus, the claimant did not appear, and, a Strike Out application having been made by the respondents, who were represented by Dr Gibson, Judge McManus granted the claimant 14 days to comment on that Strike Out application by the respondents. Her written Note and Orders, dated 13 January 2018, was issued to parties, under cover of a letter from the Tribunal dated 13 January 2018.[24]On 26 January 2018, the claimant e-mailed the Tribunal, but without a copy to the respondents, apologising for having missed the Preliminary Hearing on 11 January 2018, and advising that he had been in contact with a law firm with the hope they could represent him at the Tribunal, and requesting a little bit more time to get matters sorted and not to strike out his case.[25]As there had not been any Rule 92 compliance by the claimant, on the Judge’s instructions, a letter was sent to him, on 14 February 2018, reminding him of the need to copy future correspondence to the respondents, while confirming to the Tribunal that he had done so, but advising that the Judge had instructed that his correspondence of 26 January 2018 be copied to the respondents’ representative for any comments within 10 days, and for the claimant to provide a medical certificate if he was unfit to proceed with his claim, and to provide a prognosis as to when he was likely to be fit to proceed with his claim.[26]On 14 February 2018, Dr Gibson responded to the Tribunal’s letter of that date, commenting that the claim, having been lodged on 19 May 2017, there were now 9 months since that date, and there was no clear sight of a Hearing date being fixed, and it was, in his view, debatable as to whether or not this claim was being actively pursued, and this continuing delay was causing significant prejudice to the respondents.[27]However, Dr Gibson further advised that before the respondents took a final view on whether they wished to insist upon their application for Strike Out, they would await the production of a medical report from the claimant’s GP, and on receipt would write again to the Tribunal with their definitive position.[28]On 7 March 2018, the claimant e-mailed the Tribunal, with copy to Dr Gibson for the respondents, advising that his GP, Dr Laura Wylie, was more than happy to provide any information required, but Dr Wylie had requested that the Tribunal contact her directly.[29]In response, by e-mail of 14 March 2018, Dr Gibson stated that this was not an appropriate response from the claimant, who had been ordered by the Tribunal to provide medical evidence, and that it is not for the Tribunal, or the respondents, to seek out such evidence, and the respondents did not accept that a GP would ask the Tribunal to contact them directly to discuss a patient.[30]As such, Dr Gibson advised that it appeared to the respondents that the claimant was not seriously pursuing this case or complying with Orders of the Tribunal and, in their view, his claim should now be struck out. On 16 March 2018, on instructions from Employment Judge Shona MacLean, the Tribunal wrote to Dr Wylie, the claimant’s GP, seeking her assistance, and that letter was copied to the claimant, and Dr Gibson, for the respondents.[31]By letter dated 28 March 2018, received at the Glasgow Employment Tribunal on 3 April 2018, Dr Wylie replied to the Tribunal’s letter of 16 March 2018, advising that, following her last review appointment with the claimant, she felt he would not be fit to attend the Tribunal and, at that stage, she would be unable to advise when the claimant would be able to attend.[32]On 25 April 2018, a copy of Dr Wylie’s letter was sent to Dr Gibson for the respondents, and a further copy of the Tribunal’s letter of 14 March 2018 to the claimant, requesting the claimant to reply, by return, whether Latta & Co Solicitors, were going to represent him or not, for reply by 8 May 2018.[33]On 27 April 2018, Dr Gibson wrote to the Tribunal, with copy to the claimant, stating that it was the respondents’ position that, in regards to further procedure, the claim should now be struck out on the basis that it was no longer possible to have a fair Hearing, where the claim was lodged on 19 May 2017, and the current medical prognosis was that the claimant was not fit to attend a Tribunal, and it was not possible to advise when he would be able to attend.[34]Dr Gibson submitted that the delay had already caused prejudice to the respondents, and further, open ended delay would only cause greater prejudice. Following referral, on 16 May 2018, the Judge directed that a 3- hour Preliminary Hearing on Strike Out would be fixed, and parties would receive formal Notice of Preliminary Hearing in due course.[35]By Notice of Preliminary Hearing (Strike Out), issued by the Tribunal to both parties under cover of a letter of 23 June 2018, they were advised that the Preliminary Hearing would be held on 10 July 2018, when the Tribunal would consider whether the claim should be struck out under Rule 37 on the grounds that it is no longer possible to have a fair Hearing.[36]On 9 July 2018, the claimant e-mailed the Tribunal, with copy to Dr Gibson, requesting a postponement, and explaining that he needed time to gather the relevant documents regarding his case and to ensure someone could come and give him support.[37]By response, later that day, Dr Gibson objected to any postponement of the Hearing, repeated his previous arguments about why the claim should be struck out, and stated that it appeared to the respondents that the claimant had no real intention of seriously pursuing the claim and that, if his condition prevented him from looking at his mail only every couple of weeks, then that lended significant support to the respondents’ position that the medical prognosis is that the claimant is not fit to attend a Tribunal, and there is simply an open ended void to when, if ever, the claimant would be in a position to pursue his claim.[38]Following referral to Employment Judge Jane Garvie, and as per letter to both parties sent by the Tribunal on 9 July 2018, Judge Garvie postponed the Strike Out Preliminary Hearing on the application of the claimant on the grounds that he was ill and not prepared for the Hearing.[39]Judge Garvie advised both parties that while she noted all that was said by the respondents’ representative opposing the postponement, she was not satisfied that it would be in the interests of justice to proceed in the claimant’s absence, and she directed that the case be relisted for a Strike Out Preliminary Hearing in August/September 2018, directing that the claimant must attend, or make arrangements to be represented once a new date was fixed by the Tribunal.[40]On 19 August 2018, the Tribunal gave further Notice of Preliminary Hearing to both parties that, on 25 September 2018, there would be a Rule 37 Strike Out Preliminary Hearing to consider whether the claim should be struck out on the grounds that it is no longer possible to have a fair Hearing. On 17 September 2018, the claimant e-mailed the Tribunal, with copy to Dr Gibson, requesting a postponement until after the second week in October 2018, explaining that he had been seeking legal advice with regards to his case and he had finally found a lawyer that was willing to help but they were unavailable until after the second week of October.[41]Following referral to Employment Judge Mark Whitcombe, on 21 September 2018, he ordered that the Strike Out Preliminary Hearing on 25 September 2018 be postponed, on the application of the claimant, on the grounds that the claimant had found a lawyer, and Employment Judge Whitcombe considered that there were exceptional circumstances in that the claimant in effect had now secured representation, and that the Strike Out Preliminary Hearing would be relisted for 25 October 2018.[42]On 19 October 2018, Ms Kathryn Dingwall, Solicitor from Latta & Co, Solicitors, Glasgow, e-mailed the Tribunal, with copy to Dr Gibson, advising that she was instructed by the claimant, and requesting that the Strike Out Preliminary Hearing scheduled for 25 October 2018 be postponed, for a period of 4 weeks. Later that same day, Dr Gibson confirmed that the respondents did not object to one last postponement, however he stressed that now the claimant has legal representation, he would expect some sort of progress to be made sooner rather than later.[43]Dr Gibson requested that a Case Management Order be issued ordering the claimant’s solicitor to update the Tribunal and respondents’ representative as to how the claimant wished to progress his case within 4 weeks. Following referral to Employment Judge Robert Gall, on 23 October 2018, he granted postponement of the Strike Out Preliminary Hearing on the grounds that the solicitor for the claimant was only recently instructed, and needed time to review and prepare the claim, and he sisted the case for 4 weeks, stressing to the claimant’s representative that, whilst the Tribunal appreciated that they were only recently instructed, progress in the claim required to now be made. Further Specification of the Claim, and Amended Response[44]While, on 22 October 2018, Ms Dingwall advised the Tribunal, and Dr Gibson, that with the information provided they would be in a position to confirm the claimant’s position within the 4 weeks specified, no reply was provided to the Tribunal within that 4-week period.[45]On 5 December 2018, apologising for the delay in providing an update on the claimant’s position, Ms Dingwall sent to the Tribunal with copy to Dr Gibson, further specification of the claim, and requesting that the ET1 claim form be amended as per a paper apart on the basis that the claimant had now had the benefit of accessing legal advice, and he was now able to communicate his claim fully. It was submitted that it would be in the interests of justice to allow the claim to be amended in the manner requested.[46]As per the Tribunal letter sent to both parties’ representatives on 18 December 2018, following referral to Employment Judge Peter O’Donnell, it was confirmed that, as no objections were made by the respondents to the claimant’s request to amend the ET1, that amendment was allowed.[47]Further, as regards the amended grounds of resistance for the respondents, enclosed with Dr Gibson’s e-mail of 11 December 2018 to Ms Dingwall, and the Tribunal, Judge O’Donnell instructed that Ms Dingwall should provide comments on the respondents’ application to amend the ET3 response no later than 28 December 2018. He also directed that fresh date listing stencils for a Final Hearing in April, May or June 2019, be issued under separate cover.[48]On 11 January 2019, on instructions from Employment Judge Muriel Robison, and as no reply was received from the claimant’s solicitor, by 28 December 2018 as ordered, the Tribunal wrote to Ms Dingwall reminding her that a response was due, and that it should be submitted no later than 18 January 2019. Later that same day, Ms Dingwall e-mailed the Tribunal, with copy to Dr Gibson, apologising for the delay in responding, and advising that the claimant had no objection to the amended response being received and replacing the previous ET3 moving forward.[49]Following referral to Employment Judge Claire McManus, on 23 January 2019, the Tribunal wrote to parties’ representatives advising that the respondents’ amended ET3 was accepted, and the case would be listed for a 3-day Final Hearing on dates to be determined, and a formal Notice of Hearing would be issued in due course. That Notice of Final Hearing was thereafter issued on 1 March 2019, assigning Wednesday 22 to Friday 24 May 2019 for full disposal, including remedy, if appropriate.[50]As a preliminary matter, raised by the Judge, at the start of this Final Hearing, it was confirmed by Dr Gibson, solicitor for the respondents, that the claimant’s previously disputed disability status (in terms of Section 6 of the Equality Act 2010) was accepted by the respondents, and that they accepted that he suffered an impairment, by reason of anxiety and depression, at the relevant times, but denied that they knew or reasonably ought to have known that he was a disabled person until 16 September 2016, being the date of their receipt of an OH Assist report. Findings in Fact[51]We have not sought to set out every detail of the evidence which we heard nor to resolve every difference between the parties, but only those which appear to us to be material. Our material findings, relevant to the issues before us for judicial determination, based on the balance of probability, are set out below, in a way that is proportionate to the complexity and importance of the relevant issues before the Tribunal.[52]On the basis of the sworn evidence heard from the various witnesses led before us over the course of this Final Hearing, and the various documents in the Bundles of Documents provided to us, the Tribunal has found the following essential facts established: - i. The claimant was employed by the respondents as an Administrative Officer. He was based at Queensway House, East Kilbride. It is a large call centre operated by HMRC, the respondents, employing around 1,500 staff at that location. ii. The claimant's start date with the respondents was 15 June 2015. His employment was subject to a 12-month probationary period between 15 June 2015 and 15 June 2016. He was employed on the basis of a working week of 42 hours per week. iii. While no copy of his appointment letter was provided to this Tribunal at this Final Hearing, a copy of HMRC Terms of Employment for Full-Time Permanent Staff, signed by him on 20 November 2015, was produced to this Tribunal at the Final Hearing as document tab 3A in the Joint Bundle. iv. The claimant had a pre-existing psychological condition with stress and anxiety before he joined the respondents’ employment. As per his GP’s report, produced to the Tribunal at page 63 of the Claimant’s first Bundle, anxiety and depression had been diagnosed from March 2015. v. He completed a pre-employment health declaration, on 15 June 2015, a copy of which was produced to this Tribunal at the Final Hearing as document tab 3A in the Joint Bundle. In that, he disclosed that he had previously had depression or a stress related illness, including 99 days absence between 22 February and 1 June 2015 for certificated stress. vi. The Tribunal was provided with a copy of an OH Assist report dated 17 August 2015 to a Miss Katie Monaghan at HMRC, produced as part of document tab 3A in the Joint Bundle, recording that, further to a telephone pre-employment consultation, the claimant was fit for his job role, treatment for an underlying psychological condition having improved his situation, and no adjustments were necessary to his job role. vii. While employed by the respondents, the claimant attended Workplace Wellness counselling sessions funded by the viii. His first line manager with the respondents was Ms Clare Schofield, and later Mr Mick McBrearty, followed by a Ms Julie Dow, and then Mrs Julia Fearon. Mrs Fearon was his line manager from around June /July 2016. ix. The claimant was dismissed by the respondents’ Dismissing Manager, Mrs Frances Findlay, with five weeks’ notice on 15 November 2016, with his last day of service being 20 December 2016. x. The reason for his dismissal was continuing sickness absence. A copy of his letter of dismissal from Mrs Findlay dated 15 November 2016 was provided to this Tribunal at this Final Hearing, at tab 67, pages 203/204 of the Joint Bundle. xi. In that letter of dismissal, it was stated that, after careful consideration, and taking account of the representations made at their meeting on 27 October 2016, Mrs Findlay had decided to end the claimant’s employment “on the grounds of continuing sickness absence.” xii. She stated that she had reached that decision, per the recommendation of the claimant’s manager, that the claimant was “unable to provide a return to work date within the short to medium term and therefore unable to provide regular and effective service.” xiii. That dismissal followed upon a recommendation made by Mrs Findlay, on 2 November 2016, copy provided to the Tribunal, at tab 64, page 191, following upon a meeting that she held with the claimant on 27 October 2016. xiv. She considered that the claimant was unlikely to return to work within a reasonable timescale, and she agreed with him that there was no adjustment that could be made to enable a return to work in the foreseeable future. xv. A copy of her manager’s decision-making record dated 2 November 2016 was provided to this Tribunal at this Final Hearing, at tab 68, pages 205 / 206 of the Joint Bundle. xvi. In recording that she had taken into account the claimant’s lack of keeping in touch around his absence, and that this was in part due to his illness, Mrs Findlay further noted that this had impacted on any assurance of a reasonable return to work date, and she did not get a reassurance of a return to work in the short to medium term. xvii. As the claimant had under 2 years’ service with HMRC, he did not meet the criteria for ill-health retirement, but Mrs Findlay noted that he was eligible to be considered for compensation. A copy of her recommendation was provided to this Tribunal at this Final Hearing, at tab 64, page 191 of the Joint Bundle. xviii. In her letter of dismissal, issued to the claimant on 15 November 2016, Mrs Findlay advised him that the HR Director had considered whether to award him compensation under the Civil Service Compensation Scheme, and the HR Director had decided to award 50% of the maximum allowed, because “the illness is beyond your control and you have had an unacceptable level of absence over a short period of time with HMRC. I have taken account that there is some evidence of co-operation with the department’s policies and procedures.” xix. At the time the decision to dismiss was taken by the respondents, the claimant had a total of 4 periods of absence of 106 days between 28 September 2015 and 15 November 2016 inclusive. xx. His final period of absence was from 2 August 2016 to 15 November 2016 with no indication of a return to work within a reasonable period. xxi. The claimant’s post was not replaced by a new employee while he was off sick. When the claimant was not at his work, the respondents had to arrange for other employees to cover his duties, as well as their own, and as a result there was an adverse impact on their business, and service delivery to the public. The extent of that adverse impact was not quantified to the Tribunal by the respondents, but it was far more than trivial. xxii. Between 28 September 2015 and 11 October 2015, the claimant had a 10-day sickness absence. During this absence, the respondents complied with their “keeping in touch” obligations in terms of their attendance management procedure. xxiii. As it became clear that the absence was due to work related stress, a referral to Occupational Health was made in line with the respondents’ attendance management procedure. xxiv. A copy of that attendance management procedure was provided to this Tribunal at this Final Hearing, at tab 67, pages 203/204 of the Joint Bundle. xxv. In terms of that procedure, continuous sickness absence is a period that reaches 14 consecutive calendar days. Managers should agree “keeping in touch “arrangements with an employee during the first conversation when an absence is reported by a jobholder, and the manager should keep in touch with the jobholder during their absence. In this case, the majority of keeping in touch calls were from the claimant phoning the respondents, rather than management calling him. xxvi. There appears to have been no clarity of understanding as to the frequency of regular contact with absent employees, as amongst the respondents’ managers, but the general practice appears to have been that keeping in touch with employees was applied to all employees of the respondents, regardless of whether or not they were considered disabled persons, or not. xxvii. Copies of various sickness absence return to work discussions, and records of contact with the claimant, were prepared by the claimant’s line managers, from time to time, and these were provided to the Tribunal at various tabs within the Joint Bundle used at this Final Hearing. xxviii. An Occupational Health Assist report dated 16 October 2015 was produced for the respondents, and a copy provided to this Tribunal at this Final Hearing, at tab 7, pages 63 and 64. xxix. As per that report, by a Ms Cathrine Tapedza, OH Adviser, to Michael McBrearty at HMRC, the claimant reported to the OH adviser that he suffered from depression and anxiety and he had done since February 2015. xxx. He was seeing a therapist. He reported that his condition had been triggered by constant changes within work and a change of shift patterns. He reported however that his manager had put him for a training course from 19 October 2015 for a new role, and he had been advised he would have consolidation time and felt happy with that. xxxi. The view of the OH adviser was that the claimant was fit for his full duties involving his new role and the advice was that his line manager meet with him on a regular basis informally to assess his progress and address any concerns which may arise. This would help him manage his anxiety and maintain his attendance. xxxii. It was also advised that the claimant would benefit from taking short regular breaks of 3-5 minutes every hour from his workstation to help improve his level of focus and concentration. These measures were implemented by the xxxiii. Finally, the view of the OH adviser was that the claimant’s condition would be unlikely to be considered as a disability because it had not lasted 12 months and it was not having a substantial impact on the activities of daily living. xxxiv. Between 8 December 2015 and 15 December 2015, the claimant had a 5-day sickness absence. The reason for this absence was a throat infection. xxxv. During this absence, the respondents complied with their management procedure. xxxvi. There was a return to work meeting held on 15 December 2015 with Clare Schofield. A copy of that return to work discussion was produced to the Tribunal at tab 13, pages 75/78. xxxvii. As the claimant had two periods of absence, totalling 15 days in a 5-month period, during his 12-month probationary period, a “discussion of concerns” attendance meeting was held on 17 December 2015 with Clare Schofield. A copy of that discussion was produced to the Tribunal at tab 14, pages 79/80. xxxviii. At that meeting, the claimant was asked if there were underlying issues contributing to his absence. The claimant stated no there were not. xxxix. The claimant was asked if there was anything else which could be done to assist him with his attendance, but the claimant in response stated that there was not and that he was happy. He agreed that he would try to maintain a better standard of attendance. xl. On 24 December 2015, the claimant signed off a stress reduction plan agreed with Clare Schofield. A copy of that plan was produced to the Tribunal at tab 16, page 84, and tab 17, pages 85/87. xli. Between 14 January 2016 and 4 February 2016, the claimant had a 15-day sickness absence. The reason for this absence was a virus and chest infection. xlii. During this absence, the respondents complied with their management procedure. There was a return to work meeting held on 5 February 2016 with Clare Schofield. A copy of the record of that discussion was produced to the Tribunal at tab 27, pages 105/106. xliii. As the claimant had three periods of absence, totalling 30 days in a 3-month period, during his 12-month probationary, a formal stage 1 attendance meeting was held on 25 February 2016. xliv. A copy of the invite letter to this meeting sent to him by Clare Schofield was provided to this Tribunal at this Final Hearing, at tab 30, page 111. xlv. At that meeting with Clare Schofield, the claimant was advised that the Occupational Health report had been considered and that he did not meet the criteria for dispensation under the attendance management procedure. xlvi. A copy of Ms Schofield’s manager’s decision-making record of this meeting was provided to this Tribunal at this Final Hearing, at tab 31, pages 112/113. xlvii. Fact-finding minutes of that meeting, taken by Mick McBrearty, were prepared, and a copy produced to the Tribunal at tab 32, pages 114/116. They were signed by the claimant as a fair representation of that discussion. xlviii. The decision following that meeting was that the claimant would be issued with a first written warning for poor attendance, with a three-month review period during which attendance would be closely monitored. xlix. A copy of the warning letter, issued on 29 February 2016, by Ms Schofield, and signed by the claimant in acknowledgment, was provided to this Tribunal at this Final Hearing, at tab 34, page 118. l. The claimant successfully completed the three-month review period between 1 March 2016 and 1 June 2016, following that first written warning, and he was written to on 6 June 2016, by Jackie Dow, informing him of this. A copy of this letter was provided to this Tribunal at this Final Hearing, at tab 36, page 121. li. Between 2 August 2016 and 15 November 2016, being the date of the respondents’ decision to dismiss him, the claimant had a 76-day sickness absence. lii. The reason for this absence was work related stress. While no copy fit notes from the claimant’s GP were produced to the Tribunal, the respondents’ witness, Mrs Fearon, told us that she had seen all his fit notes over that period, and they all said work related stress. liii. During this absence, the respondents complied with their management procedure. liv. Contacts to and from the claimant were recorded by the respondents, as per the various records of contact, and notes of discussion, produced to the Tribunal in the Joint Bundle. lv. On 15 August 2016, Julia Fearon, wrote to the claimant, following the successful completion of review period following the claimant’s first written warning, and advising him that satisfactory attendance must be maintained for 12 months. A copy of this letter was provided to this Tribunal at this Final Hearing, at tab 42, page 142. lvi. Following an informal meeting with the claimant, on 31 August 2016, noted by Mrs Fearon as per her note, copy produced to the Tribunal at tab 43, page 148, on 1 September 2016, the claimant was invited by Ms Fearon to a 1-month continuous sickness absence meeting to be held on 9 September 2016. lvii. A copy of the invite letter to that meeting was provided to this Tribunal at this Final Hearing, at tab 44, page 149. However, the meeting was re-arranged for 14 September 2016, as per a further invite from Mrs Fearon dated 6 September 2016, as per copy produced to the Tribunal at tab 47, page 156. lviii. On 2 September 2016, an Occupational Health referral was made by Mrs Fearon to OH Assist. A copy of the OH referral was provided to this Tribunal at this Final Hearing, at tab 45, pages 150/154. lix. The 1-month continuous sickness absence meeting was due to take place on 14 September 2016, but the claimant indicated he was not well enough to attend. lx. An Occupational Health report from OH Assist dated 16 September 2016 was produced for the respondents, and a copy provided to this Tribunal at this Final Hearing, at tab 49, pages 160/162. lxi. Whether or not the respondents knew, or ought to have known, that the claimant had a disability of depression and anxiety, diagnosed from March 2015, before this point, this OH Assist report of 16 September 2016 shows that the respondents had actual knowledge as from that date at the latest. lxii. In that OH report, Ms Elaine Bevins, OH Adviser with OH Assist, reported to Mrs Fearon at HMRC following a telephone assessment of the claimant on 16 September 2016, and she reported on his current health situation, his capability for work (noting that he was unlikely to return to work), before giving an outlook, and disability advice that the claimant’s stress / depression was likely to be covered by the Equality Act. lxiii. Ms Bevins’ reported that the claimant had advised her that, although he had a supportive manager, he was finding his weekly contact with his manager stressful, and he had asked could this be delayed for two weeks allowing him to focus his thoughts. While she thought this would help reduce his anxiety, Ms Bevins stated that ultimately that was a management decision. lxiv. A case conference concerning the claimant’s employment was held on 22 September 2016, with Inspector of Taxes Claudette Currie, “HO SO” (Higher Officer / Senior Officer), as recorded in Ms Fearon’s notes produced to the Tribunal at tab 53, page 166. lxv. That case conference that led to a letter being sent to the claimant on 23 September 2016, referring to his absence since 2 August 2016, and again inviting him to a 1-month continuous sickness absence meeting, to be held on 5 October 2016. The claimant did not show up for that meeting on 5 October 2016. lxvi. The meeting was then rearranged for 6 October 2016, but with Mick McBrearty, as Mrs Fearon was on leave. A copy of the invite letter issued by her to the claimant, on 26 September 2016, was provided to this Tribunal at this Final Hearing, at tab 54, pages 169/170. lxvii. Mick McBrearty chaired the meeting, on 6 October 2016, as Front Line Manager (FLM) in Julia Fearon’s absence, and Clare Schofield took notes, a copy of which were produced to the Tribunal at tab 56, pages 172/176 of the Joint Bundle. lxviii. Following this meeting, on or around 10 October 2016, a recommendation was made by Mick McBrearty that consideration be given to dismissal of the claimant on the basis that the business would be unable to support the claimant’s ongoing absence. lxix. A copy of the recommendation, along with the claimant’s absence history, was provided to this Tribunal at this Final Hearing, at tab 57, pages 177/179. lxx. Therein, Mr McBrearty recorded that the claimant had stated that “everything in his life at present causes him stress & due to JH (jobholder) being unable to be specific about work related stressors, we as a business are unable to remove these. The only stressors JH was able to advise of was shift patterns & telephony work. Both these stressors were within the job description that JH applied for & the business is unable to offer alternative solutions on a permanent basis.” lxxi. As at 6 October 2016, the claimant’s absence since 2 August 2016 was over two months old with no indication of a return to work. lxxii. On 11 October 2016, the claimant was invited by Frances Findlay to a decision-making meeting to take place on 20 October 2016. A copy of the invite letter was provided to this Tribunal at this Final Hearing, at tab 59, page 181. That meeting did not take place, and it was rearranged for 27 October 2016. lxxiii. At this meeting, on 27 October 2016, the claimant attended, along with Craig Lundie, as PCS trade union representation. Mrs Findlay was the decision maker, and a Mark Thomson took the notes of the meeting. lxxiv. The claimant stated that he could not provide a timescale for a return to work, and he was unable to say whether he would be able to return to his position within the department. It was discussed that reduced hours and shorter days had been offered but the claimant had not accepted this offer due to financial commitments. lxxv. Notes of the meeting, as produced to the Tribunal, at tab 60, pages 182/184, were accepted by the claimant at this Final Hearing as a fair reflection of discussion at that meeting on 27 October 2016. lxxvi. The respondents’ decision following this meeting was that the claimant would be dismissed on the grounds of continuous sickness absence with no prospect of a return to work within a reasonable timeframe. lxxvii. The Dismissing Manager, who took the decision to dismiss the claimant, was Mrs Frances Findlay, a Higher Officer with HMRC. lxxviii. The claimant was dismissed with notice with a last day of service being 20 December 2016. A copy of the letter of dismissal from Mrs Findlay dated 15 November 2016 was provided to this Tribunal at this Final Hearing, at tab 67, pages 203 / 204. lxxix. It was emailed to the claimant, with a hard copy posted too, by Mrs Findlay, as per her email to the claimant sent on 15 November 2016, as per copy produced to the Tribunal at tab 66, page 202, because she understood from Mrs Fearon that the claimant wanted an email issued rather than a face to face meeting. lxxx. In that letter of dismissal, the claimant was advised that he had the right to appeal against the decision to end his employment, as also a right of appeal both internally and to the Civil Service Appeals Board against the level of compensation awarded to him. lxxxi. The claimant appealed the decision to dismiss him, but not against the level of compensation awarded to him. A copy of his undated letter of appeal, lodged by him within 10 working days of the decision to terminate his employment, was provided to this Tribunal at this Final Hearing, at tab 73, page 215. lxxxii. It contained grounds of appeal A to F: 1. “A - Elements of what was discussed at my decision meeting on 27th October are nor recorded in the minutes of decision. 2. B - Copy of my therapists recommendations for Work Wellness were not made available to myself. 3. C - No paper copy of the decision meeting has been posted to my home address per email delivered from Frances Findlay dated 15th November 2016. 4. D - OH Assist report dated 16th September recommends the outlook can be favourable if I continue to engage in therapy and take the recommended increase in my medication, 4-6 weeks was recorded for the increase in medication to take effect, I believe that a decision on my employment with HMRC has been taken before any improvement can take effect. 5. E - Equalities Act - I believe I have been discriminated against because of my current mental health condition. 6. F - Decision letter states that I can appeal against the compensation package, I have not been contacted with any details regarding this.” lxxxiii. In his evidence at this Final Hearing, the claimant advised the Tribunal that a Citizens Advice Bureau adviser, Stephen Wilson at East Kilbride CAB, had helped him to draft his grounds of appeal. lxxxiv. An appeal meeting was held on 11 January 2017. The Appeal Manager was Mrs Christine Kilmartin, a Senior Officer with HMRC. The claimant was represented by a PCS trade union representative, Mr Chris Hendry. lxxxv. Notes of this appeal meeting, taken for the respondents by a Ms Alison Irving, as produced to the Tribunal, at tab 74, pages 216/223, were accepted by the claimant at this Final Hearing as a fair reflection of discussion at the appeal meeting. lxxxvi. Mrs Kilmartin’s decision letter and reasons were issued to the claimant on 20 January 2017, by email, and by post. Her decision was not to uphold the claimant's appeal, and the original decision taken by Mrs Findlay stood. Mrs Kilmartin’s decision was stated to be final. lxxxvii. A copy of the appeal outcome letter from Christine Kilmartin dated 20 January 2017 was provided to this Tribunal at this Final Hearing, at tab 76, page 227. lxxxviii. The claimant was sent, enclosed with that letter, the notes of the appeal meeting, together with details of how and why Mrs Kilmartin’s decision was reached. lxxxix. Those details were set forth in the Appeal Manager’s deliberation template, completed by Mrs Kilmartin on 20 January 2016, a copy of which was provided to this Tribunal at this Final Hearing, at tab 75, pages 224/226. xc. The Appeal Manager was satisfied that the Dismissing Manager had taken a fair and objective approach and focused on the continuing sickness absence position and whether the business could continue to support the claimant's level of sickness absence. xci. Mrs Kilmartin was further satisfied with “the level of support offered by the business to facilitate a successful, and timely return to work, in line with HMRC guidance and procedures”, and she was also satisfied that the Dismissing Manager’s decision was “reasonable and fair; and that it was proportionate to other similar situations in the Department.” xcii. Further, the Appeal Manager was also satisfied that the Occupational Health reports and recommendations were taken into account, and she was further satisfied that the claimant had not been discriminated against because of his mental illness. xciii. In particular, she recorded that: “I am satisfied that all expected, and proper, actions were taken to support JH (jobholder) and, having taken account of all circumstances, a sound, fair, reasonable and proportionate decision was reached.” xciv. Post termination of employment with the respondents, the claimant has not secured any new employment with any new employer. He has been in receipt of State benefits, namely Employment Support Allowance, and Personal Independence Payment. xcv. In his evidence to the Tribunal, at this Final Hearing, the claimant advised us that he had not looked for work since January 2017, and that, when he is around people, he gets suffocated, and finds it very difficult to be in a room full of people. xcvi. Vouching documents in respect of his receipt of these State benefits was produced to the Tribunal, and his Schedule of Loss, was updated, as at 23 May 2019, again as produced to the Tribunal. xcvii. Although there was a period of 30 months from date of dismissal to date of this Final Hearing, the claimant capped his past loss of earnings as set out in his Schedule of Loss at 17 months, as he recognised that he had contributed to a delay in the claim being heard by the Tribunal prior to this point. xcviii. The claimant’s first Bundle of Additional Documents, as produced to the Tribunal, on 22 May 2019, included, as document 3, at pages 63 and 64, a copy of a medical report dated 14 May 2019 by the claimant’s GP, Dr Laura Wyllie, Kittoch Medical Practice, East Kilbride, addressed to the claimant’s solicitors at Latta & Co, further to their letter to her of 12 April 2019 seeking information regarding the claimant as their patient. xcix. It provides a detailed narration of his medical history, including diagnosis, medication and other treatments, from March 2015 to May 2019. c. Following the close of the Final Hearing, and the Tribunal’s order of 26 July 2019, for parties’ representatives to liaise, and try and mutually agree certain matters regarding the claimant’s gross and net pay, and pension contributions, figures were thereafter jointly agreed by parties’ representatives, and intimated to the Tribunal on 7 and 9 August 2019, and clarified on 23 August 2019, as follows: Parties agree that the claimant’s gross salary at effective date of termination, on the basis of his full contractual entitlement, had he been working normally, was £1,549.42 per month, producing £1,252.86 per month net salary. ci. As per the email from the respondents’ HR Service Centre to Julia Fearon, dated 5 September 2016, copy produced to the Tribunal at page 155 of the Joint Bundle, the claimant had gone on to half pay with effect from 1 September 2016, and nil pay with effect from 20 October 2016, and, had he not been dismissed, with effect from 20 December 2016, the last day the respondents would have paid him statutory sick pay (SSP) would have been 16 February 2017. cii. As at the date of dismissal, effective 20 December 2016, the claimant was in receipt of statutory sick pay (SSP) only from the respondents. He had given no indication of a return to work date, and since his dismissal by the respondents, the claimant had not been fit to work. ciii. It was the respondents’ position that, but for his dismissal, the claimant would have remained off sick and in receipt of SSP only, until 16 February 2017. Further, the respondents submitted that he received an alternative benefit of an equivalent amount of Employment Support Allowance. civ. While employed by the respondents, the claimant was in the Alpha Civil Service Pension Scheme, which is a scheme which provides a defined benefit worked out on a career average basis. cv. As he did not have more than two years’ qualifying service, the claimant was not entitled to a preserved pension, and he was offered a refund or transfer instead. cvi. In terms of the Tribunal’s order of 26 July 2019, parties’ representatives agreed, and intimated to the Tribunal on 7 and 9 August 2019, and clarified on 23 August 2019, pension contributions, as follows: Parties agree that the employer and employee pension contribution rates, under the Alpha pension scheme, were £276 per month for employer pension contributions, and £64.68 per month for employee pension contributions. cvii. When he left the respondents’ employment, following the termination of his employment, the claimant received a Civil Service Compensation Award of £480.48. Relevant copy documentation was produced to this Tribunal at this Final Hearing, at tabs 65 and 66, pages 192/201. cviii. This sum was paid to the claimant on 30 November 2016, as evidenced by his copy bank statement, produced to the Tribunal at page 32 of his second additional Bundle produced to this Tribunal on 23 May 2019. cix. In its final, amended form, as submitted on 31 May 2019, correcting the net earnings for the claimant as misstated in the version submitted on 23 May 2019, at £1,549 per month, rather than £1,350, the claimant’s finalised Schedule of Loss reads as follows: - Compensatory Award Loss of earnings: Net pay: £1,350 per month Length of time out of work out of work: 2 years 5 months exactly (since 22nd December 2016) Capped at 17 months in recognition of delay in Tribunal Process = £22,950 LESS income received over the same period of time (17 months) £550.98 per month, 127.15 per week - Employment Support Allowance £319.80 per month Personal Independence Payment = £15,302.75 TOTAL = £7,647.25 TOTAL COMPENSATORY AWARD £7,647.25 If compensation for loss of earnings is awarded I also seek interest at the daily rate. Loss of Pension: Based on previous pension contributions from employer throughout employment average of £276.02 per month * the loss period 17 months. = £4,692.34 INJURY TO FEELINGS I am owed compensation falling within the middle band of the Vento guidelines for the discriminatory treatment of the respondent throughout my employment and in their dismissal of me. The discrimination was not a one-off event but a series of instances whereby the Respondent failed to make reasonable adjustments, which led to my dismissal. It is my position that the dismissal amounts to discrimination arising from my disability and that the policies followed during my dismissal amount to indirect discrimination. It is submitted that the ongoing effects on my mental health from this treatment are significant. I have been unable to look for work since my dismissal and I believe that my condition has worsened as a result of the discrimination. TOTAL INJURY TO FEELINGS - £10,000 If compensation for injury to feelings is awarded I also seek interest at the daily rate. DEDUCTIONS: £480.48 RECEIVED IN COMPENSTION FROM HMRC TOTAL £21,859.11 Tribunal’s assessment of the Evidence[53]In considering the evidence led before the Tribunal, we had to carefully assess the whole evidence heard from the various witnesses led before us, and to consider the many documents produced to the Tribunal in the Bundles of Documents lodged and used at this Final Hearing, which evidence and our assessment we now set out in the sub-paragraphs: -(1) Mr David Pickup: Claimant (a) The claimant was the first witness heard by the Tribunal on Wednesday, 22 May 2019, and continued on the morning of the following day. Aged 41 years, he had been employed by the respondents for less than 2 years and, as at the date of this Final Hearing, he was unemployed, and in receipt of State benefits. (b) In giving his evidence in chief to the Tribunal, the claimant did so, in answer to questions from his solicitor, in a relatively calm and relaxed manner, and referring, when appropriate, to relevant documents in the Joint Bundle before the Tribunal, and in his own two additional Claimant’s Bundles. (c) Although clearly nervous in giving evidence in a formal setting, when cross-examined by the respondents’ solicitor, the claimant became notably confused at certain points, and while continuing to give his evidence, of matters as he recalled them, we felt his answers in cross-examination reflected on his reliability, rather than his credibility, as a witness before the Tribunal. (d) We put that down to his nervousness in giving evidence in the Tribunal, against his former employer, and not to any evasiveness on his part, for we are satisfied that the claimant was doing his best to answer questions asked of him, whether by his solicitor, the respondents’ solicitor, or members of the Tribunal, and, in doing so, answering to the best of his recollection. He came across as a genuine character, doing his best to recall matters from his recollection of his time employed by the (e) From his evidence at this Final Hearing, it was clear to us that the claimant is a person with problems, and having secured his job with the respondents, he was pleased to be in employment, but quickly realised that he could not cope with telephone calls. He spoke to us of his need for consistency and stability at work. While the respondents did make some adjustments to his work, the claimant’s expectation of the level of support required was unrealistic, and his perception of how he should be treated was not matched by the reality of what the respondents did do for him. (f) In cross-examination by Dr Gibson, solicitor for the respondents, the claimant did not accept that management contact, by way of keeping in touch, while he was on sickness absence, was reasonable, and he insisted that it was excessive. (g) It was of note that when questioned by Mr Boyd, one of the members of the Tribunal, the claimant stated that all his managers were very supportive and he had no issues with them, yet their contact caused him problems, as he wanted peace and quiet, and he had a sick line from his doctor. While he felt it was everyday contact, he accepted that it was not daily. (h) This ebbing and flowing in his evidence was a feature of the claimant’s evidence to the Tribunal, as also his often poor recollection of dates and events, and this is why we had a difficulty with the reliability of his evidence to us.(2) Mrs Julia Fearon: Front Line Manager / Team Leader, HMRC (a) The first witness for the respondents was Mrs Fearon. We heard her evidence on the afternoon of Thursday, 23 May 2019. Aged 52 years, she has 34 years’ service with HMRC, at East Kilbride, being a Band O, Front Line Manager / Team Leader since 2013. She had been the claimant’s line manager for a period of his service with the respondents. (b) In giving her evidence to the Tribunal, Mrs Fearon did so referring, when appropriate, to relevant documents in the Joint Bundle before the Tribunal. We had no issues with the credibility or reliability of this witness, and her testimony was factual, and not undermined by cross-examination. She spoke to matters within her direct knowledge, and often by reference to contemporary documentation in the Joint Bundle produced to us. (c) In assessing her evidence, we felt that, in dealing with the claimant, she had felt constrained by almost having to act by rote, following a regimented process within the respondents’ HR policies, and without any room for discretion on her part. We believe that she believed she was doing the right thing for the claimant, and there was no evidence before us to suggest that she was, in any way, being malicious, or oppressive, towards the claimant. Her whole approach seemed to be that absences cannot be open-ended, and managers need to focus on an absent employee’s return to work. (d) She came across as a long serving civil servant who was simply going through the employer’s internal processes, trying to be supportive to the claimant, but without showing any real understanding of the nature of his specific disability, and the impact that regular, or even daily, contact might have on him, and on his ability to return to work. (e) With this witness, and indeed the respondents’ two other witnesses also, there was a lack of common understanding by them as managers as to the need for daily, or regular contact, with an employee off on sickness absence, where this witness, and the next, Mrs Findlay, the Dismissing Manager, thought daily contact was required, while Mrs Kilmartin, the Appeals Manager, said regular did not mean every day. (f) All 3 of the respondents’ witnesses did not appear to have any common understanding of what was the respondents’ guidance, and what was policy. In writing up this Judgment, in light of the evidence heard from these witnesses, we suggest that there is perhaps an organisational learning point here for the respondents, and how managers are trained and equipped to deal with the management of sickness absences, particularly for employees with, or suspected of having, a disability. (g) While the respondents’ witnesses were at one in telling us that “keeping in touch” days are supportive to the employee, it did not seem to us, from their evidence to the Tribunal, that they viewed regular / daily contacting of an employee with a mental health issue as potentially counter-productive to getting them back to work. (h) The respondents may therefore wish to consider how they best to support their managers to manage their employees off work with mental health issues in particular. We commend to them, as helpful, practical guidance, the ACAS guidance on “Promoting positive mental health in the workplace” published in June 2019. (i) On a related point, we heard in evidence how for the claimant all his Occupational Health referrals were actioned by the external OH provider, by way of a telephone referral and discussion with an OH adviser, and not by way of any appointment / face to face, in person, consultation, with an OH physician. (j) Again, while it is ultimately a matter for the employer, the respondents may wish to review that practice, as also the fact that, in this case, the claimant’s pre-employment check by OH was only conducted well after he started in employment with the respondents, and not before his start date.(3) Mrs Frances Findlay: Higher Officer, HMRC (Dismissing Manager) (a) The respondents’ next witness was Mrs Findlay. We heard her evidence on the morning of Friday, 24 May 2019. Aged 52 years, she is a Higher Officer, with 35 years’ service in HMRC, mainly at East Kilbride, and she has been a Higher Officer for 3½ years. She was the Dismissing Manager in this case, having been appointed to that role by Mr Robert Currans, a senior HMRC officer, grade 7. She had no line management responsibility for the claimant. (b) Again, like Mrs Fearon before her, Mrs Findlay gave her evidence referring, when appropriate, to relevant documents in the Joint Bundle. We had no issues with the credibility or reliability of this witness, and her testimony was factual, and not undermined by cross-examination. She spoke to matters within her direct knowledge, and often by reference to contemporary documentation in the Joint Bundle produced to us. (c) In assessing her evidence, we felt that, very much like her colleague, Mrs Fearon, this witness too came across as all process driven, and very much with a tick box approach to procedures, with her checking what had been done by Mrs Fearon, before deciding that the claimant’s employment with the respondents should be terminated. (d) In her evidence to us, she was clear that the claimant’s absence could not be open-ended, and as she and his FLM could not get a return to work date within a reasonable time period, she decided to dismiss him, although, what might have changed her mind, would have been if the claimant could have given her a return to work date between 4 and 6 weeks from the date of her meeting with him. (e) She told us that she did not take the decision lightly, and that she took account of the support already put in place to support his return to work, being an offer of reduction in hours, or alternative working pattern, or a short term change of duties, but she also had to assess the impact to the business of his absence, and how, with the claimant’s work being covered by others, their work suffers, and that affects overall customer service. (f) While she had the OH Assist report of 16 September 2016, she stated that she felt weekly contact with the claimant was reasonable, and she saw no need to change that to fortnightly. The witness also clarified that she did not have the preemployment OH report of August 2015, and while she asked him at the meeting, on 27 October 2016, if he could return to work, he said he could not give her a return to work date at that stage, and no date was given by him. (g) She also advised us that there was no belief on her part that the claimant would return to work in the short to medium term. Further, she added, at no point after 27 October 2017, and before her letter was issued on 15 November 2016, did the claimant come back to her with a return to work date.(4) Mrs Christine Kilmartin: Senior Officer, HMRC (Appeals Manager) (a) The respondents’ final witness was Mrs Kilmartin. We heard her evidence on the afternoon of Friday, 24 May 2019. Aged 60, she has a total of 43 years with HMRC, working at East Kilbride, and she has been a Senior Officer for 18 years. She had no direct line management of the claimant, or Mrs Findlay, the Dismissing Manager, and her role in his case was to act as an independent Appeals Manager. (b) As with the respondent’s other witnesses, when Mrs Kilmartin gave her evidence to the Tribunal, she too did so, referring, when appropriate, to relevant documents in the Joint Bundle. In assessing her evidence, we noted how she, like the respondents’ two other witnesses, had a tick box approach to her tasks. (c) We had no issues with the credibility or reliability of this witness, and her testimony was factual, and not undermined by crossexamination. She spoke to matters within her direct knowledge, and often by reference to contemporary documentation in the Joint Bundle produced to us. (d) In giving her evidence, the witness stated that while the claimant had given several written grounds of appeal, she categorised them as alleged procedural errors, rather than the claimant was seeking to put forward any new information. She confirmed she had access to the relevant papers concerning the claimant’s case, and absence history, including the minutes of the meeting with Mrs Findlay on 27 October 2016, her dismissal letter to the claimant, as also the OH Assist report of 16 September 2016. (e) Mrs Kilmartin stated that the matter of compensation under the Civil Service scheme for the claimant was not a matter for her, but for HR, but 50% compensation seemed reasonable to her. She denied emphatically that the claimant had been dismissed due to his disability, and she stated that it was the level of his absence, and his inability to achieve a return to work date, that were relevant matters for a business decision to take account of the impact that the claimant’s sickness absence was having at HMRC East Kilbride. (f) She confirmed that she dealt with the appeal under the respondents’ HR27003, Attendance Management Procedure, produced at tab 82 of the Joint Bundle, and in looking at the claimant’s appeal, she was looking at how safe was Mrs Findlay’s decision to dismiss the claimant, and that it was fair, reasonable and proportionate. (g) She described her role as “reviewing what the Dismissing Manager did”, notwithstanding paragraph 115 of that procedure states: “An appeal hearing should be conducted as a full re-hearing of the case.” (h) Further, added Mrs Kilmartin, in her experience of conducting over 20 appeals, she had never known an appeal hearing to be hearing from an appellant and a Dismissing Manager, and in deciding upon the appeal, she had checked that she had all the relevant papers, and considered all the points raised by the claimant in his letter of appeal. (i) In writing up this Judgment, the Tribunal suggests to the respondents that they may wish to reconsider and review their procedures, as a review of a decision to dismiss is different from a re-hearing, with the latter normally involving hearing, at the same meeting, from both the appellant and the original decision maker in person.(5) Bundles of Documents (a) We had a large Joint Bundle of Documents, and two additional, smaller Bundles, lodged by the claimant’s solicitor in the course of the Final Hearing. (b) At the start of the Final Hearing, the Tribunal received a Joint Bundle of Documents, running to 82 inventoried documents, extending over 258 pages, in a large, A4 sized ring binder folder. (c) There being no objection by the respondents’ solicitor, we allowed additional documents for the claimant, which we labelled as tab 3A, to be added after tab 3, between pages 46 and 47 of the Joint Bundle. They comprised a copy of an OH Assist letter of 17 August 2015 from Ms Lisa Aldridge, OH Adviser, to Miss Katie Monaghan, HMRC, confirming that, further to a telephone pre-employment consultation, the claimant was stated to be fit for his job role, and a copy of HMRC Terms of Employment for Full-Time Permanent staff signed by the claimant on 20 November 2015, but related to his employment having commenced on 15 June 2015. (d) Further, in the course of the Final Hearing, we also received from the claimant’s solicitor, two separate, further Claimant’s Bundles, the first, with 3 documents, extending to 63 pages, on 22 May 2019, and the second, with another 5 documents, extending to 37 pages, on 23 May 2019. These documents mainly comprised mitigation evidence for the claimant, vouching his receipt of State benefits, which could and should have been included in the Joint Bundle. However, no standard case management orders had been issued by the Tribunal at an earlier stage, and no objection was taken by the respondents to their late lodging. (e) We pause to note and record that the Schedule of Loss submitted on the claimant’s behalf wrongly gave 22 December 2016 as end date of his employment, and the monthly figures given for ESA and PIP payments received by the claimant were at odds with the figures shown in the bank statements produced, and the payment periods used for these State benefits. ESA is paid fortnightly, and PIP 4 weekly. (f) According to the bank statements produced to us, both ESA and PIP were paid at varying rates, from time to time, and latterly at £327.60 for 4 weekly PIP (being £81.90 pw) and not the £319.80 per month shown, while ESA shown at £550.98 per month, and £127.15 per week, was being paid at £256.90 per fortnight (being £128.45 pw). It was not clear to us how the total income received over 17 months shown at £15,302.75 had been calculated, as that sum, divided by 17, gives £900.16 per month, whereas the two monthly figures given (of £550.98 ESA and £319.80 PIP) only total £870.78. It may be that it is the grand total of actual benefits received, but the actual basis of calculation is not transparently evident on the Schedule of Loss submitted to the Tribunal. (g) Included in the claimant’s first additional Bundle, lodged on 22 May 2019, as document 3, at pages 63 and 64, was a copy of a medical report dated 14 May 2019 by the claimant’s GP, Dr Laura Wyllie, Kittoch Medical Practice, East Kilbride, addressed to the claimant’s solicitors at Latta & Co, further to their letter to her of 12 April 2019 seeking information regarding the claimant as their patient. It provides a detailed narration of his medical history, including diagnosis, medication and other treatments, from March 2015 to May 2019. (h) However, Ms Dingwall, for the claimant, in producing it to the Tribunal, did so saying that its author, Dr Wyllie, was not being called as a witness for the claimant and, as such, it would be a matter for the Tribunal to assess the evidentiary weight of this production. Dr Gibson, solicitor for the respondents, said that without its author, it should be given minimal regard by the Tribunal. While we took it into account, in assessing the whole evidence before us, it was of limited value to the Tribunal, as its author could not be subject to cross-examination by the respondents, nor asked any questions of clarification from the Tribunal, although Dr Gibson did cross-examine the claimant on its terms. (i) We were referred to many, but not all, of the documents within the various Bundles. While these included copy notes of sickness absence, return to work discussions, records of contact, and notes of informal meetings, many of these types of records produced were taken by management, and filed, either electronically, or on a paper file, without any reference to the claimant as the employee concerned, at or about the date of the discussion, by way of maintaining a jointly agreed record agreed by manager and employee. (j) Some other notes were, however, jointly signed off as agreed. There appeared to be no consistency of approach by the respondents as to when they sought joint sign off of notes of meetings / discussions, and this again is something they may wish to review in terms of their internal procedures, and record keeping. (k) There was included within the Joint Bundle of Documents, a copy of the claimant’s probation report, at pages 136 / 139, and document HR15002 Probation: Policy overview (at pages 239/243), but they were not spoken to in evidence before the Tribunal, which rather begs the question why they were included in that Bundle. (l) A separate document, HR15008 Probation: Dealing with poor attendance, was lodged as pages 235/236 of the Bundle, and spoken to in evidence, it having led to the claimant’s written warning letter of 29 February 2016 from Clare Schofield, his then line manager, as produced at page 118 of the Bundle. (m) While we were told, in oral evidence, that the claimant’s 12- month probationary period expired, without any need for extension, and he was confirmed in employment, neither party lodged a copy of whatever written confirmation to that effect was issued by the respondents. Agreed List of Issues[54]Following discussion, at the start of the Final Hearing, with the claimant’s solicitor, and the respondents’ solicitor, on day two (23 May 2019), an agreed list of issues was tendered to the Tribunal, jointly agreed by both Ms Dingwall and Dr Gibson, and it sets forth the matters before us for our judicial determination, as follows: - 1) Did the Respondent discriminate against the Claimant by treating him less favourably because of his disability than the Respondent treats or would treat others? 2) Did the Respondent discriminate against the Claimant by treating him unfavourably because of something arising in consequence of his disability? 3) Has the Respondent shown that the treatment was a (namely, the Respondent’s keeping in touch during sickness the Claimant’s disability? practice of the Respondent’s (namely to provide a stable working environment and the Respondent’s keeping in touch during sickness absence requirements) put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled? 6) If yes to 5, did the Respondent fail to take such reasonable steps> 7) What level of financial damages, if any, should the Claimant receive? Parties’ Closing Submissions[55]At the close of evidence after the 3-day Final Hearing on 22/24 May 2019, the Tribunal advised both parties that the case would be listed for a Member’s Meeting to be held on Wednesday, 17 July 2019, the earliest date mutually convenient for the full panel, for the Tribunal to have private deliberation on the evidence led, and to consider parties’ written closing submissions, and replies. Formal Notice of Continued Final Hearing was issued to both parties’ representatives on 30 May 2019, confirming that it was for their information only, and that parties were not required to attend.[56]In the Tribunal’s letter to both parties’ representatives, on 28 May 2019, issued following the Employment Judge’s oral directions at the close of proceedings on the Friday afternoon, 24 May 2019, specific and detailed Case Management Orders were made for the preparation and exchange of outline closing submissions, list of authorities, and reply, providing that outline written closing submissions were to be lodged with the Tribunal, and exchanged with the other party, by no later than 4pm on Friday, 31 May 2019.[57]It was further ordered that each party should prepare their written reply to the other party outline written closing submissions, and lodge it with the Tribunal, by no later than 4pm on Friday, 7 June 2019. It was also further ordered that there must be a succinct executive summary of each party’s closing arguments, and that parties’ representatives should liaise with each other and co-operate to provide the Tribunal, at the same time as lodging of their outline written closing submissions, with a jointly agreed list of authorities.[58]When Dr Gibson intimated to the Tribunal, with copy to Ms Dingwall for the claimant, his written submissions and executive summary for the respondents, on 31 May 2019, he included the agreed list of authorities, in the following terms: - Agreed List of Authorities 1) Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 2) Land Registry v Houghton and others UKEAT/0149/14 3) Hensman v Ministry of Defence UKEAT/0067/14 4) O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145 5) BS v Dundee City Council [2013] CSIH 91 6) Hardy and Hansons Plc v Lax [2005] EWCA Civ 846 7) Salford NHS Primary Care Trust v Smith UKEAT/0507/10/JOJ Respondents’ Outline Closing Submissions[59]On 31 May 2019, Dr Gibson intimated his written submissions and executive summary for the respondents. As directed, he provided a two-page executive summary, together with a fuller written submission for the respondents, running to some eight, typewritten pages, identifying the agreed list of issues, and then setting forth the respondents’ position in reply, with reference, where appropriate to case law authorities cited.[60]In coming to our Judgment on this case, we have paid careful attention to the full terms of Dr Gibson’s written submissions for the respondents. While, at paragraph (5) on page 5 of his fuller written submissions, he refers to an “Alison Brien” as “one of the most conscientious managers in respect to keeping in touch I have ever come across”, we pause to note and record that Ms Brien was not a witness in this case nor, as far as we are aware from the evidence that we did hear from both parties, did she have any keeping in touch contact with the claimant in this case.[61]In his executive summary, Dr Gibson also prefaced issue No.3 with the introductory words, “If yes to 2, ...”, albeit they were not in the agreed List of Issues handed up to the Tribunal by parties’ representatives on 23 May 2019. We have noted that, and accepted it as a sensible revisal to the agreed List of Issues.[62]As a copy is held on the case file, we do not consider it appropriate, or proportionate, to repeat the full terms of Dr Gibson’s written submissions for the respondents here, but what we do note, by way of the respondents’ position, is the terms of its executive summary, in the following terms: - 1) Did the Respondent discriminate against the Claimant by treating him less favourably because of his disability than the Respondent treats or would treat others? Denied. The Claimant dismissal did not amount to less favorable treatment, because of the Claimant's disability, than the Respondent treats or would treat others. The dismissal was not actioned because of his disability. It was actioned because of his poor absence record. A suitable hypothetical comparator in this case would be a non-disabled person with the same absence record and no return indicated within the short or medium term. That non-disabled comparator would also 2) Did the Respondent discriminate against the Claimant by treating him unfavourably because of something arising in consequence of his disability? Admitted. 3) If yes to 2, has the Respondent shown that the treatment was a Submitted that the Respondent has shown that the dismissal of employees who are adversely impacting upon the legitimate aim of having people attend work to carry out their duties, is a proportionate measure for them to take. (namely, the Respondent's keeping in touch during sickness the Claimant's disability? Admitted that the Respondent applies, or would apply, their keeping in touch during sickness absence requirements to persons with whom the Claimant does not share the characteristic. Denied that the keeping in touch during sickness absence requirements put, or would have put, persons with whom the Claimant shares a disability at a particular disadvantage when compared with persons with whom the Claimant does not share it. Denied that the keeping in touch during sickness absence requirements put the Claimant at a disadvantage. The Respondent has shown that their keeping in touch during sickness absence requirements are a proportionate means of achieving a legitimate aim. The legitimate aim is two-fold, reassuring the employee that the business is concerned about them and are not isolating them and to allow the employee to explore any barriers which are preventing the employee from returning to work. practice of the Respondent's (namely, to provide a stable working environment and the Respondent's keeping in touch during sickness absence requirements) put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled? Denied that the Respondent had a duty to take reasonable steps because an unstable working environment was applied to the Claimant. Even if the Tribunal were to find that the Respondent applied an unstable working environment to the Claimant, which is denied, it is denied that this put the Claimant at a particular disadvantage by such a PCP in comparison to persons who are not disabled. Admitted that the Respondent had a duty to make reasonable adjustments because their keeping in touch during sickness absence requirements put the Claimant at a particular disadvantage, namely increased his stress levels. 6) If yes to 5, did the Respondent fail to take such reasonable steps? If the Tribunal were to find that the Respondent applied an unstable working environment to the Claimant, which put him at a particular disadvantage, it is denied that the Respondent failed to take reasonable steps to avoid the particular disadvantage. Denied that the Respondent failed to take reasonable steps to avoid the particular disadvantage which their keeping in touch during sickness absence requirements put the Claimant at. All reasonable adjustments were made. 7) What level of financial damages, if any, should the Claimant receive? It is the Respondent's position that the Tribunal will not be required to address this question. If the Tribunal do however uphold any part of the Claimant's claims the Respondent submits that any damages should be restricted to £550 for the reasons outlined within the Respondent's schedule. Claimant’s Outline Closing Submissions[63]On 31 May 2019, the claimant’s solicitor, Ms Dingwall, intimated to the Tribunal, with copy to Dr Gibson for the respondents, her written submissions on behalf of the claimant, running to 16 typewritten pages, and 53 paragraphs, including, at paragraphs 3 to 11 inclusive, her executive summary, followed by her detailed submissions on disability; indirect discrimination; failure to make reasonable adjustments; direct discrimination (although actually covering discrimination arising from disability); remedy; and conclusion.[64]Again, in preparing this Judgment, we have had regard to the full terms of her written closing submission for the claimant, and its references to the cited cases. In considering her full submissions, we have, however, disregarded, at her paragraph 23, providing extracts from the EHRC Code of Practice on Employment (2011), some random text that appears in the course of the copied and pasted EHRC paragraph 6.25, stating: “Case No: 2500750/2016 10.5 Reserved judgment with reasons – rule 62”. From its location, it rather looks as if, in preparing her own submissions for this case, Ms Dingwall has copied and pasted extracts from the EHRC Code as per page 13 of the judgment in that other case.[65]That case number relates to a Tribunal claim in England & Wales, and from the Judge’s search of the online Employment Tribunals Decisions database, on GOV.UK, we understand that it relates to the claim by a Ms L J Bannister v The Commissioners for Her Majesty’s Revenue & Customs. Her complaint against HMRC succeeded, by Reserved Judgment, by a full Tribunal at Leeds chaired by EJ Keevash, dated 30 March 2017, which was published online on 13 October 2017, along with a Remedy Judgment by that Tribunal dated 23 August 2017. That Reserved Judgment was not produced to us, by either party’s representative, at this Final Hearing, and, anyway, as it is a first instance ET Judgment, it would have had no binding effect on our decision in this case in any event.[66]As a copy is held in the case file, it is neither appropriate, nor proportionate, to repeat the full terms of Ms Dingwall’s written submissions for the claimant here, but we do note, from its full terms, the content of the executive summary, as follows: - 3. It is submitted that during the Claimant’s employment with the Respondent he suffered from a disability, namely anxiety and depression which had been diagnosed from March 2015, as set out in the Medical Report at page 63 of the Claimant’s first bundle. 4. It is submitted that the Respondent knew of the condition from the start of the employment and knew that it constituted a disability from, at the latest, the 16th September 2016 following an OH report to that effect (tab 49 of the Main Bundle). 5. It is the Claimant’s position that the Respondent had in place a practice at the time of the Claimant’s last absence that required the Claimant to keep in regular contact during the absence including daily contact for the first 7 days and at least once or twice a week thereafter, and that this practice was applied to all employees regardless of whether they suffered from a disability or not, as per the evidence given by the claimant and the respondents witnesses Ms Julia Fearon and Ms Frances Findlay. 6. It is submitted that this practice amounted to Indirect Discrimination under S.19(1) of the Equalities Act 2010 on the basis that it caused the claimant a particular disadvantage compared to other employees who did not suffer from his disability, namely that it negatively impacted his anxiety and affected his ability to recover and return to work. It is submitted that the respondent was provided with information from an OH report dated 16th September 2016 (tab 49 of the main bundle) which gave the opinion that an adjustment to this policy would have assisted with the Claimant’s anxiety. 7. It is submitted that the Respondent’s failure to implement these adjustments amounted to a failure to make reasonable adjustments under s.20 (3) Equality Act 2010 in light of the Claimants disability. It is the Claimant’s position that the evidence led by witnesses Ms Fearon and Ms Findley was that the adjustment had not been considered. It is submitted that the adjustment was reasonable as it would have been a practical one and would not have had any significant financial impact on the respondent given the size of the employer and that the claimant was already signed off from work at the point when the OH assist report was produced and therefore no additional disruption to the workplace would have been caused. 8. The Claimant further claims that his dismissal amounts to discrimination arising from his disability under s.15(1) Equalities Act 2010. 9. It is conceded by the respondents that the claimant was subject to unfavourable treatment arising from his disability however the Respondents position is that this was proportionate in pursuance of a legitimate aim. 10. The Claimants position is that in balancing all of the factors of the case, as required by Hardy and Hansons Plc v Lax [2005] ICR 1565. It is submitted that in light of the circumstance of the case, the decision to dismiss was not proportionate. In assessing the proportionality of the decision relevant factors include the evidence available on the impact on the business; and the justification as to why dismissal at that point was justified. 11. It is submitted that there was no clear evidence led by the respondents to demonstrate that there was a significant impact on the respondents at the time of dismissal to justify the decision particularly when there were alternative reasonable adjustments open to them which would not significantly increase the period of absence, namely the implementation of a period of time for the claimant where he was not required to contact the respondent to allow the improvement of his anxiety as suggested in the OH report of 16th September 2016 (tab 49 of the main bundle). It is submitted that as such the dismissal amounted to discrimination arising from the Claimants disability and the decision was not a proportionate means of achieving a legitimate aim.[67]In terms of paragraph 49 of her written submission for the claimant, Ms Dingwall submitted that the claimant is entitled to compensation in the form of loss of earnings, and injury to feelings and, at paragraph 53, she submitted that the claimant is entitled to compensation as set out in the attached Schedule of Loss as at 23 May 2019, seeking a total of £21,859.11. We have already incorporated the detail of that revised Schedule of Loss in our Findings in Fact, earlier in these Reasons. Reserved Judgment[68]When proceedings concluded on the afternoon of Friday, 24 May 2019, with the close of evidence from both parties, the Judge advised both parties that Judgment was reserved, and it would be issued in writing, with Reasons, in due course, after private deliberation by the Tribunal at its Members’ Meeting on 17 July 2019, the earliest date that could be mutually agreed by the full Tribunal.[69]As detailed earlier in these Reasons, there was thereafter further delay. Having now further deliberated, by correspondence with the Members, and without the need for a further Members’ Meeting, this unanimous Judgment of the Tribunal represents the final product from our concluded private deliberations, and reflects the unanimous views of us as the specialist judicial panel brought together as an industrial jury from our disparate experiences. Parties’ Further Written Representations[70]Following our Members’ Meeting on 17 July 2019, we sought further written representations from both parties, as per the letter sent to their representatives by the Tribunal on 26 July 2019, and, in response, we received their further written representations on 29 July, and 7, 9 and 23 August 2019. Those related to parties’ ultimate joint agreement on the claimant’s earnings and pension contributions, and the actual sum received by the claimant from the Civil Service Compensation Scheme, which we have addressed earlier, by inclusion in our Findings in Fact earlier in these Reasons.[71]The other matter specifically raised by the Tribunal at that time with parties’ representatives was the legal basis (with any statutory provision, and / or case law authority to be relied upon by the respondents) on which the respondents relied to argue that, as per point (7) of Dr Gibson’s executive summary, and the respondents’ Counter Schedule tendered on 23 May 2019, if the Tribunal upheld any part of the claim, the respondents submitted that any damages (for injury to feelings) should be restricted to £550 and, in particular, what legal basis (if any) there is to allow for set off from any injury to feelings award of the sum received by the claimant from the Civil Service Compensation Scheme, as referred to in the letter of termination of employment dated 15 November 2016 from Frances Findlay (copy produced at tab 67, pages 203 & 204 of the Joint Bundle).[72]In response to that enquiry by the Tribunal, Dr Gibson, solicitor for the respondents, by email to the Tribunal, copied to Ms Dingwall, on 29 July 2019, stated that: - “The matter of the amount of the injury to feelings award is a matter for the Tribunal to determine having assessed the evidence. Compensation for injury to feelings in discrimination cases is assessed in the same way as any other claim in delict. The Equality Act 2010 does not provide guidance as to how a Tribunal should evaluate injured feelings financially. There is therefore no statutory provision to be relied upon by the Respondent. It is the Respondent's position that having heard the evidence the Tribunal should restrict this amount to £1,000. It is the Respondent's position that this £1,000 should be reduced because the Claimant has already received a Civil Service Compensation Scheme Award which does not form part of his normal remuneration and he would not have received but for his dismissal. The assessment of injury to feelings is not an "exact science", as the EAT recognised in Da'Bell v NSPCC UKEAT/0227/09. It is trite law to state that the function of the law of delict is to ensure that if loss is caused by another person's wrongful act the loss will be compensated by restoring what has been lost to the victim. Once the Claimant's injury to feelings award is assessed his award under the Civil Service Compensation Scheme should be deducted to reflect what has actually been lost by him.”[73]In response to Dr Gibson’s email of 29 July 2019, Ms Dingwall, solicitor for the claimant, by email to the Tribunal, copied to Dr Gibson, on 7 August 2019, replied as follows: “It is accepted that the function of the law of delict is to ensure that if loss is caused by another person's wrongful act the loss will be compensated by restoring what has been lost to the victim. It is the Claimant’s position that as a result of the Respondent’s actions, he was unable to return to employment. The loss suffered is therefore the full salary he received prior to being signed off sick for a period of 17 months, for the reasons set out in the schedule of loss. In addition it is the Claimant’s position that given the effect on the claimant’s mental health and his inability to recover to the point where he can seek work, injury to feelings should be within the middle band of the Vento guidelines as set out in the schedule of loss. It is accepted that the amount paid to the Claimant via the Civil Service Compensation Scheme Award should then be deducted from the figure calculated by the tribunal for injury to feelings and financial loss.”
Relevant Law
[74]Both parties’ written closing submissions addressed us on aspects of the relevant law, both by reference to statutory provisions, and the cases cited to us in the jointly agreed list of authorities. We do not understand the relevant law to be in dispute between the parties, but it is the application of that relevant law to the facts of this case that has required our specific judicial determination.[75]As such, we do not consider it either appropriate, or proportionate, that we set out the relevant law at length, and instead we have given ourselves a selfdirection on the relevant law and, where appropriate, we make reference to parties’ respective written closing submissions in the Discussion and Deliberation section of these Reasons.[76]We have reminded ourselves that the claimant did not have the requisite 2 years’ qualifying service to raise an “ordinary” unfair dismissal claim, under Part X of the Employment Rights Act 1996, and that his claim against the respondents proceeds only as a complaint that they have unlawfully discriminated against him, on grounds of disability, contrary to the Equality Act 2010.[77]In terms of Section 39(2) of the Equality Act 2010, an employer(a) (A) must not discriminate against an employee(b) (B) by dismissing B or subjecting B to any other detriment. Here, the claimant relies on disability as his protected characteristic, and his disability status is now accepted by the respondents, although there is a dispute as to their date of actual or constructive knowledge of his disability. In our Findings in Fact, earlier in these Reasons, we have found that, at latest, the respondents had actual knowledge of the claimant’s disability as from 16 September 2016, and the OH Assist report of that date.[78]In particular, as per Ms Dingwall’s written closing submissions for the claimant, tendered on 31 May 2019, we note that she submitted that the respondents’ practice of keeping in touch whilst absent amounted to indirect discrimination under Section 19, that they failed to make reasonable adjustments for his disability in breach of Section 20, and that his dismissal amounted to discrimination arising from his disability under Section 15.[79]These statutory heads of claim were those set forth by Ms Dingwall, on 5 December 2018, when she submitted her further specification of the claim for the claimant, as previously called for by Judge McManus, on 11 January 2018, at which stage the claimant was an unrepresented, party litigant, and, after being instructed by the claimant, Ms Dingwall submitted the amended paper apart to the ET1 claim form.[80]We pause to note and record that, at paragraph 32 of her written submissions for the claimant, Ms Dingwall, while citing Section 15, wrongly labels that section of her submissions as “Direct Discrimination”, when it is not, for that is dealt with at Section 13, and we further note and record that Ms Dingwall’s amended ET1 paper apart, at paragraph 34, did submit that “the decision to ultimately dismiss the appellant amounts to Direct Discrimination on the basis of my disability”, and the subject heading to that paragraph did state: “Direct discrimination under s.13(1) and S15(1) Equality Act 2010.”[81]When Dr Gibson submitted the respondents’ amended grounds of resistance, on 11 December 2018, to answer Ms Dingwall’s amended ET1 paper apart, at his paragraphs 15 to 22, he denied that the respondents had in any way discriminated against the claimant as alleged or at all.[82]At the start of this Final Hearing, on 22 May 2019, Ms Dingwall did confirm that the claimant was proceeding on all heads of claim, under Sections 20, 19, 13 and 15. Her closing submissions, however, do not include any specific argument about a Section 13 complaint, but as any such complaint was not expressly withdrawn by her, we have addressed it as part of our decision making in this case, as agreed Issue No.1 is framed with reference to the statutory test in Section 13.[83]By Section 4, “disability”, as defined in Section 6, is a “protected characteristic” for the purposes of the Equality Act 2010. As it is convenient to do so, at this stage, we note here the other relevant statutory provisions from the Equality Act 2010, so far as material for the purposes of our decision in this case, which provide as follows: 13. Direct discrimination “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 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. (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.” 19. Indirect discrimination “(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim. (3) The relevant protected characteristics are - …disability;” 20. 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.” Discussion and Deliberation[84]In considering our Judgment in this case, we have done so having regard to the structure of the agreed list of issues, as revised by Dr Gibson, at No.3, on 31 May 2019, as detailed earlier in these Reasons, and in the following paragraphs of these Reasons, we set out to discuss our views on each of those issues, as follows: - 1) Did the Respondent discriminate against the Claimant by treating him less favourably because of his disability than the Respondent treats or would treat others?[85]This issue involves consideration of Section 13(1) of the Equality Act 2010.[86]In determining this issue, we have had regard to the evidence led before us[87]As we noted earlier in these Reasons, while Ms Dingwall’s written closing submissions, at paragraphs 32 to 48, were labelled “Direct Discrimination”, which is the subject matter of Section 13, her submissions content was related to discrimination arising from disability under Section 15. We address that at agreed issue No.2 below.[88]However, as we also noted, Ms Dingwall’s amended ET1 paper apart, at paragraph 34, did submit that “the decision to ultimately dismiss the appellant amounts to Direct Discrimination on the basis of my disability”.[89]Her closing submissions, however, do not include any specific argument about a Section 13 complaint, but as any such complaint was not expressly withdrawn by her, we have addressed it as part of our decision making in this case, as agreed Issue No.1 is framed with reference to the statutory test in Section 13.[90]In any event, Dr Gibson’s written closing submissions, in setting out the respondents’ position, in reply to issue No.1, stated as follows: “An employee claiming direct disability discrimination must show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to their own. Where the claimant is disabled, the comparator may be nondisabled, or have a different disability to that of the claimant. In the Respondent's submission the Respondent did not discriminate against the Claimant by treating him less favourably because of his disability than the Respondent treats or would treat others. A hypothetical non-disabled employee, or a hypothetical employee with a different disability, would have been treated in the same way at the Claimant (dismissed) if he had the same level of continuing sickness absence with no prospect of a return to work within a reasonable time. The sickness absence policy of the Respondent's is quite clear. A decision manager should consider dismissal when they do not expect an job holder who is on a period of continuous absence to return to work within a reasonable time frame. Whether or not the employee is a disabled person, or not, is not the issue. The genuineness of the absences themselves are not called into question. The issues are the concerns around the level and pattern of sickness absence and the prospect of a return to work or not within a reasonable time. Dismissal can apply where the business can no longer support the jobholder's level of sickness absence, downgrading is not appropriate, if the employee is disabled there are no further reasonable adjustments which can be made which will help the job holder return to satisfactory attendance, OH advice has been received in the last 3 months and Ill-Health Retirement is not appropriate. All these factors applied in this case. The relevant circumstances that the claimant and comparator must share are those which the employer took into account in deciding to treat the claimant as it did, with the exception of the element of disability (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285). If the Claimant an a hypothetical comparator shared the circumstances as set out in the policy as per the paragraph above - had the same sickness absence record, the same OH recommendations, the same status in regards to ill-health retirement eligibility and the same status re. downgrading, they would The Claimant avers that "the decision to ultimately dismiss the appellant amounts to Direct Discrimination on the basis of my disability. Had the Respondent actioned the recommendations of Occupational Health and my GP and made reasonable adjustments then I feel I would have been in a position to return to work. The dismissal is therefore disproportionate and unjustified." Whether or not the Respondent made reasonable adjustments, or not, is a question for the Tribunal to address in terms of the claim brought under section 20 and 21 of the Equality Act 2010. The Respondent of course denies that any such failure did occur. However, even if it did that does not go to prove that the Respondent discriminated against the Claimant by treating him less favourably because of his disability than the Respondent treats or would treat others when the less favourably treatment alleged is dismissal. Whether or not the dismissal was disproportionate and unjustified is not the legal test. The legal test is whether or not the dismissal amounted to less favourable treatment in comparison to how the Respondent would treat others. Only if the Claimant can show that he was dismissed because of his disability when others would not have been dismissed can he succeed. The Claimant has failed to aver that and failed to prove it. In a direct disability discrimination claim, the relevant circumstances to be ascribed to the comparator expressly include the claimant's abilities. That is, the disabled claimant and the comparator must have abilities that are materially the same. So, where a claimant is treated a certain way because of something they cannot do owing to their disability, they will not succeed with a direct discrimination claim. This is because their comparator (who is ascribed the same abilities) would not have been able to perform the task in question either, and would therefore have been treated in the same way by the employer. The "task" or "ability" in question in this case is the ability to return to work within a reasonable timeframe. If the Claimant and the comparator cannot do that then they would both be dismissed. The focus of the Respondent when treating the Claimant in the way they did was his sickness absence record and the likelihood of his return to work within a reasonable timescale. The reason for the Claimant's dismissal was not the Claimant's disability. It was the Claimant's sickness absence record and his inability to return to work within a reasonable timescale. That may be related to the Claimant's disability, but that is relevant to a section 15 claim, not a section 13 claim.”[91]We are satisfied, from the evidence led before us, that the claimant’s dismissal by the respondents was not actioned because of his disability. It was actioned because of his poor absence record, and his inability to return to work within a reasonable timescale. We are also satisfied that, taking into account the needs of Section 23 (comparison by reference to circumstances), as a suitable hypothetical comparator in this case would be a non-disabled person with the same absence record, and no return indicated within the short or medium term, that non-disabled comparator would also[92]Having carefully considered both parties’ stated positions, we therefore agree with Dr Gibson’s submission that the claimant has failed to prove that the respondents discriminated against him, contrary to Section 13, by treating him less favourably because of his disability than the respondents treated or would treat others. As such, we find that that head of claim fails. 2) Did the Respondent discriminate against the Claimant by treating him unfavourably because of something arising in consequence of his disability?[93]This issue involves consideration of Section 15(1)(a) of the Equality Act 2010.[94]In determining this issue, we have had regard to the evidence led before us[95]In his written closing submissions for the respondents, Dr Gibson stated that: “The Respondent concedes that they discriminated against the Claimant by treating him unfavourably because of something arising in consequence of his disability. The Claimant's dismissal was unfavourable treatment in the sense that the Claimant was put at a disadvantage when he lost his job. The reason for the Claimant's dismissal was his sickness absence record and his inability to return to work within a reasonable timescale. His sickness absence record and his inability to return to work within a reasonable timescale was something arising in consequence of his disability.”[96]As the respondents have conceded this point, and admitted that they discriminated against the claimant, contrary to Section 15, by treating him unfavourably because of something arising in consequence of his disability, it follows that the claimant has established the first part of the statutory test.[97]However, before the Tribunal can finally rule on that head of complaint, and decide whether or not the claimant has succeeded in his Section 15 complaint of discrimination arising from disability, the Tribunal requires to decide whether or not the respondents have succeeded in their defence, and shown that the claimant’s treatment by them is a proportionate means of achieving a legitimate aim, as per Section 15(1)(b), which is the issue discussed next at agreed issue No.3 below. 3) If yes to 2, has the Respondent shown that the treatment was a[98]This issue involves consideration of Section 15(1)(b) of the Equality Act 2010.[99]In determining this issue, we have had regard to the evidence led before us[100]In her written closing submissions for the claimant, Ms Dingwall, addressing the claimant’s Section 15, discrimination arising from disability, complaint stated that: “33. Reliance is placed on the case of Land Registry v Houghton and others UKEAT/0149/14. At paragraph 19 of that judgement it is noted that the relevant question in determining whether the unfavourable treatment is related to the persons disability is what caused the treatment in question rather than what motivated the decision maker.34. It is noted that the respondent concedes that the Claimant was treated unfavourably because of something arising from his disability. Namely that he was dismissed following his continuous absence of 2nd August 2016 to 15th November 2016 (date of decision to dismiss) and that sickness arose from his disability.35. The question then is whether that treatment was proportionate to achieve a legitimate aim. It is accepted by the claimant that the Respondents decision was in pursuit of a legitimate aim. It is submitted that the action of dismissal was disproportionate in light of the claimant’s circumstances and the failure of the respondent to implement alternative measures at the time of dismissal such as the reasonable adjustments outlined above (namely adapting the keeping in touch policy or offering a more stable working environment).36. Reference is made to the Court of Appeal case of Hardy and Hansons Plc v Lax [2005] ICR 1565. Paragraphs 31-33 of that Judgment set out the correct approach to be adopted by the Employment Tribunal when assessing questions of proportionality. At paragraph 31 Pill LJ stated: “It is for the employment tribunal to weigh the real needs of the undertaking, expressed without exaggeration, against the discriminatory effect of the employer's proposal. The proposal must be objectively justified and proportionate.”37. At paragraph 32 Pill LJ said: “I accept that the word ‘necessary’ .... has to be qualified by the word ‘reasonably’. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word 'reasonably' reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject [the employer’s] submission ... that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.”38. The decision maker in this case for the dismissal of the Claimant was Frances Findley. Ms Findley was the second witness for the respondent. It is submitted that the witness was asked if at the time of making her decision, she was aware of the OH report of 16th September 2016 (tab 49 of the main bundle) and the information contained therein, including the opinion that a period of 2 weeks without contact with the respondent, would have assisted in reducing the Claimant’s anxiety. She confirmed that she did have this document when she made her decision and was aware of its contents. Her evidence was that she took the decision to dismiss the Claimant on the basis that the Claimant could not provide a return to work date during his hearing (this is not disputed). However in relation to the alternative options open to her as decision maker, she did not consider that implementing a further period where no contact was made with claimant as an option in the alternative to dismissal. She was asked why this wasn’t considered and answered that she thought that the keeping in touch was a policy which required to be in place to allow a duty of care to the employee.39. This fails to consider the information in the OH report which states it would be to the claimants benefit to have this period of time. It is submitted that there were alternative reasonable, options open to the respondent out with dismissal which could have been implemented prior to dismissal without severely impacting on the respondents business. It is submitted that the witness in this case presented as understanding that this option had not been considered by the respondent rather than that it had been properly assessed and rejected due to the impact this would have on the business.40. The decision could have then been overturned at appeal stage. Reference is made to the HMRC Absence policy at tab 82 page 253 on Appeals, which states at para 115 that the appeal should be treated as a full rehearing of the case and at para 117, that in making the decision the appeal manger (sic) should include: whether the appeal is upheld or rejected and whether there are any recommendations such as reasonable adjustments.41. The third witness for the respondent, Ms Christine Kilmartin also gave evidence at the hearing. Her role was as the appeal manager and she had conduct of the claimants appeal against his dismissal. She was asked at the hearing whether she was aware of the 16th September 2016 OH report and she confirmed that she had had access to this along with the decision of Ms Findlay and her deliberations.42. In evidence, Ms Kilmartin was asked by the Claimant’s representative whether she had investigated whether the recommendation for a period of two weeks without contact as set up in the OH report had or had not been implemented. She stated she had not as it had not been raised as a ground of appeal. Having not considered the proposed alternative action it is submitted that there was no real assessment of whether a further delay to the dismissal in order to implement the adjustment would have severely impacted on the business so as to justify the dismissal.43. It is submitted that given the claimants circumstances, including the information contained in the OH report an alternative action; namely the implementation of a reasonable adjustment would have been reasonable and would not have added any real significant disadvantage to the Respondent compared with the significant and disproportionate effect on the claimant, namely the loss of his livelihood.44. Reference is also made to the evidence of the respondent’s third witness Ms Kilmartin who confirmed, when asked, if a measure such as providing the claimant with a period of two weeks without contact would have been reasonable during his absence and she confirmed that in her opinion it would have been a reasonable adjustment to make.45. In assessing the proportionality of the decision it is accepted that relevant factors should include the impact of the absence on the respondent. In this regard reference is made to the case of, O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145. At paragraphs 45-46 the judgement states: “45…. In principle the severity of the impact on the employer of the continuing absence of an employee who is on long-term sickness absence must be a significant element in the balance that determines the point at which their dismissal becomes justified, and it is not unreasonable for a tribunal to expect some evidence on that subject. What kind of evidence is appropriate will depend on the case. Often, no doubt, it will be so obvious that the impact is very severe that a general statement to that effect will suffice; but sometimes it will be less evident, and the employer will need to give more particularised evidence of the kinds of difficulty that the absence is causing. What kind of evidence is needed in a particular case must be primarily for the assessment of the tribunal, and the fact that Judge Serota, or I, might think that in this case the impact on the school of the Appellant's absence was obvious does not mean that the Tribunal erred in law in taking a different view. In truth, I think that this ground could only succeed on the basis that the Tribunal's decision was perverse. That runs up against the difficulty that the EAT did not allow the appeal on that basis; nor in any event did Mr Legard seek to put his argument that way, either in his skeleton argument or in his oral submissions. 46. However, I think I should say that even if it had been open to the school to advance a perversity argument on this point I doubt if I would have accepted it. By the time of the appeal hearing the Appellant was claiming that she was fit. It is true that the Tribunal accepted that the panel might reasonably have required a further examination before accepting that – see para. 202, which I quote at para. 31 above – but, even if that took a little time to arrange, the available evidence suggested that – to put it no higher – she might well be fit to return in the near future. In those circumstances the question of the impact of the Appellant's continuing absence on the school was thrown into sharp focus: even if her absence over the previous fifteen months had caused real difficulties, as I would for myself be very willing to accept without detailed evidence, that harm was already done, and if the school had in fact managed to cope adequately with those difficulties it might be expected it to cope a little longer. It is clear from the concluding sentence of para. 202 that that is how the Tribunal was approaching the question. I find it hard to say that the Tribunal was perverse in wanting more evidence about the school's ability to put up with the Appellant's absence for that short further period. 46. It is submitted that the severity of the impact of the claimant’s absence in this case is not immediately clear and that evidence led by the Respondent’s witnesses on the impact of the absence on the Business was vague. When asked what practical impact the absence had, the first witness for the Respondent, Ms Fearon, gave evidence that the absence led to more work being allocated to members of a different team, that other teams were then required to take more calls, and that this would impact on the ability to answer calls quickly which would impact the customer service. She also confirmed that during the absence the Respondent did not bring in additional staff to cover the Claimant’s workload. There was no evidence led which could quantify the impact of the absence or establish whether during that period of time the Respondent had recorded any actual effect on the service provided. Furthermore there was no evidence provided as to why at the time of dismissal a further period of absence was not sustainable, for example, if as the Claimant submits that he was permitted a period of two weeks, without contact from the respondents to allow for recovery, this would have had a significant impact on the respondent which would justify the action of dismissal. 47. It is accepted that the Claimant was unable to agree to the return to work date given by the Respondent in the dismissal meeting however it should be noted that at this point the claimant had been signed off by his GP as unfit to work and that there were adjustments open to the Respondent to make which had not at that point been implemented. It further submitted that at the point of dismissal there was in place a recommendation by the OH that a further referral to them was made following three weeks after the Claimant’s medication had been increased. It is noted in the notes of the meeting of 6th October 2016 that the Claimant had increased his medication and that he expected it could take 3-4 weeks to take effect (tab 56 page 174). No further referral was made following this and no opportunity for occupational health to themselves assesses the likelihood of the claimant being fit to return to work in the near future following the increase in medication. The Respondents took no proactive measures to obtain information from Occupational Health or the Claimant’s GP at the time of dismissal to assess the prospective time period for return despite the recommendation from Occupational Health that a further referral be made. 48. A such it is submitted that the decision to dismiss the Claimant on 15th November 2016 was not proportionate and that the dismissal of 20th December 2016 amounted to discrimination arising from the Claimant’s disability under s.15 (1) Equality Act 2010.”[101]Dr Gibson, in his written closing submissions for the respondents, stated that: “In the Respondent's submission they have shown that the treatment was a proportionate means of achieving a legitimate aim. The legitimate aim in this case is simply having persons attend work and carry out the role they are paid to do. If an employee cannot fulfil that legitimate aim then dismissing that employee in order to release resources to employ someone who can is a proportionate means of achieving that legitimate aim. In determining this question it is for this Tribunal to balance the reasonable needs of the business against the discriminatory effect of the employer's actions on the employee (Land Registry v Houghton and others UKEAT/0149/14 above). This Tribunal must undertake a fair and detailed assessment of the employer's business needs and working practices (Hensman v Ministry of Defence UKEAT/0067/14). The discriminatory effect of the Respondent's actions on the Claimant is that he lost his job. The Respondent does not seek to minimize the impact of that on anyone. However, when balancing that against the reasonable needs of the business, then it is clear that dismissal was proportionate in this case. In O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145 the Court of Appeal expressed the view that, while the test for unfair dismissal and the proportionality test under section 15 of the Equality Act 2010 are different, in the context of a dismissal for long-term sickness, the considerations for the tribunal are likely to be similar. In my submission the Tribunal should have regard to the following factors as being relevant when considering the proportionality of the dismissal:- 1) The nature of the employee's illness - The Claimant suffered from anxiety and depression. This mental impairment was assessed both as unlikely to be considered as a disability and at a later date likely to be considered as a disability. In any event it was a mental impairment which had resulted in the Claimant being unable to attend for work on two separate occasions between 28 September 2015 and 11 October 2015 (10 working days) and 2 August 2016 and 15 November 2016 (76 working days). It was the long-term continuous absence which ultimately led to the decision to dismiss. The Claimant also had another 2 period of absence totaling 15 working days for a throat infection and chest infection. The nature of the Claimant's illness were such that it incapacitated him from carrying out the role he was employed to do and he did not provide any indication as to when he would be in a position to return to work to carry out his role. Another difficulty for the Respondent in regards to the nature of the Claimant's illness was the Claimant's inability to direct them to specific workplace issues which were causing him anxiety and the issues in the Claimant's personal life. It was difficult for the Respondent to identify the workplace stressors so that they could make changes. The Claimant did not engage in the second workplace stress risk assessment process. Further, the Claimant's illness was a condition which pre-dated his employment. It was a pre-existing condition. It was obviously not something which had been caused by his work at HMRC. The initial OH advice was that it would not impact upon the Claimant's ability to do his job, however, that is not how things developed, but these issues were issues which were obviously not workplace issues and so it was doubtful whether they would go away. 2) The prospects of the employee returning to work and the likelihood of the recurrence of the illness - This in the Respondent's submission is the crux of the issue. The Claimant could give no indication of a return to work date. He was asked this by both the recommending officer and the dismissal officer. He did not return to work during his notice period and gave no indication even at his appeal that he was ready to return to work. There was nothing with which the Respondent could work with in regards to making plans for a return, looking at ways to reduce the stress in the workplace. In that context it would not have been proportionate for the Respondent simply to cut off contact with the Claimant, keep his post open and leave it up to him to decide when he might be ready to return at some future unknown date. That is not a proportionate response which any employer would be expected to adhere to. In regards to the likelihood of the recurrence of the illness there was obviously a high likelihood of this. The long term absence from 2 August 2016 and 15 November 2016 had been proceeded with a shorter absence for stress between 28 September 2015 and 11 October 2015. The Claimant had also had a previous spell of absence in another role in the first half of 2015. The Claimant had not been able to identify what was causing him stress and it is likely that whatever issues he was experiencing would have led to further absence quite regardless of the type of work he was doing. This is actually borne out by why has occurred since his dismissal in the lengthy delays to these Tribunal proceedings caused by the Claimant's ongoing unresolved illness. 3) The need for the employer to have someone doing the work - The Tribunal has heard evidence as to what the Claimant's job was. The department is clearly a very busy one and all administrative officers had a full case load. There was undoubtedly a constant and ongoing need for the employer to have someone doing the work that the Claimant was not doing whilst off sick. HMRC is obviously a huge organisation and it is difficult to quantify the specific impact on the work they do when one specific employee is on long-term sickness absence. However, it is logical that there must be an impact and the larger the organisation the more of these issues they have so it is proportionate to have a clear and workable policy and approach to dismissal. 4) The effect of the absences on the rest of the workforce - The Tribunal has heard evidence as to the effect of the absences on the rest of the workforce. There is obviously an impact on any workforce when they are one down to sick absence. The burden of covering the person's work as well as their own falls on them. They get busier. In the case of a long-term illness this can get draining for the rest of a team. Again given the size of the organisation it is difficult to quantify the effect of the absences on the rest of the workforce when one specific employee is on long-term sickness absence. The burden of the additional work gets spread out. 5) The extent to which the employee was made aware of the position - The employee was kept informed at all stages of the process. In my submission no criticism can be made of the Respondent in this regard. Alison Brien has been one of the most conscientious managers in respect to keeping in touch I have ever come across. 6) The employee's length of service - The Claimant did not have long service with HMRC. He did not have the requisite two years service to raise an unfair dismissal claim. He had been in a 9 month probationary period which had involved significant training and support. He had received significant additional support and reasonable adjustments. He was not an employee who had built up the significant good will of sustained attendance over many years who had just had a one off difficult period in his life. He had been off sick for over 100 calendar days of his just over 500 calendar days service. 7) How long was the Respondent expected to keep the Claimant's job open for - In my submission the attendance management policy which states that continuous absence means an absence of 28 days is fair and proportionate. This is in effect how long the Respondent can be expected to keep the Claimant's job open for as a minimum. Each circumstance will be different. The Respondent waited far longer. They waited 3 months and allowed him a 5 week notice period during which he still did not return to work. How much longer an employer may be reasonably expected to wait will be a fact-sensitive question based on the nature and context of the employee's job and illness. It was pointed out in BS v Dundee City Council [2013] CSIH 91 (as applied in Monmouthshire County Council v Harris [2015] UKEAT/0010/15) that the following factors may be relevant to how long an employer may be expected to wait: 1) The availability of temporary cover (including its cost) - The Tribunal has heard evidence as to why HMRC could not back fill the Claimant's post with agency workers. The option of temporary cover is not an option for the Respondent given the type of work they do. 2) The fact that the employee has exhausted his sick pay - The Claimant had not exhausted his sick pay but civil service sick pay is extremely generous (6 months full pay, 6 months half pay) and it would only be in the rarest cases that a Civil Service had exhausted their sick pay prior to dismissal on the grounds of continuing attendance. 3) The administrative costs that might be incurred by keeping the employee on the books - There is significant costs to keeping the Claimant on. He was in receipt of full salary for 6 months without attending for work and was entitled to 5 weeks notice pay. 4) The size of the organisation - HMRC is of course a large organisation and do have a greater responsibility to employees to seek to facilitate a return to work and meet the employees sick pay entitlement. However, HMRC, like any Government Department, is accountable to the tax payer. A large budget is not the same as an unlimited budget. It is clear that each penny in the public sector is a prisoner. HMRC must put limits on the amount of time that their employees can remain off sick if there is no prospect of a return within a reasonable timescale. In all the circumstances the dismissal of the Claimant was a proportionate means of achieving a legitimate end.”[102]In our view, all of the factors referred to by Dr Gibson are appropriate and fall to be taken into account. We agree entirely with him that it would not have been proportionate for the respondents simply to cut off contact with the claimant, keep his post open and leave it up to him to decide when he might be ready to return at some future unknown date, as that is not a proportionate response which any employer would be expected to adhere to.[103]Further, from the evidence heard by this Tribunal, we are satisfied that the respondents have shown that the dismissal of employees who are adversely impacting upon the legitimate aim of having people attend work to carry out their duties, is a proportionate measure for them to take.[104]While Ms Dingwall submitted that the action of dismissal was disproportionate in light of the claimant’s circumstances, we disagree with her view. We are satisfied that the respondents took into account all relevant circumstances, and they did not leave out of account any relevant circumstances.[105]Further, while Ms Dingwall described the evidence led by the respondents’ witnesses on the impact of the claimant’s absence on the business as “vague”, we did not see their evidence in that way, as much of it was a statement of the obvious: as we have recorded earlier, in our Findings in Fact, the claimant’s post was not replaced by a new employee while he was off sick. When the claimant was not at his work, the respondents had to arrange for other employees to cover his duties, as well as their own, and as a result there was an adverse impact on their business, and service delivery to the public. The extent of that adverse impact was not quantified to the Tribunal by the respondents, but it was far more than trivial.[106]Having carefully considered both parties’ stated positions, we therefore agree with Dr Gibson’s submission that the respondents have shown that the claimant’s treatment was a proportionate means of achieving a legitimate aim, and so we find that the claimant’s Section 15 complaint fails. (namely, the Respondent's keeping in touch during sickness the Claimant's disability? practice of the Respondent's (namely, to provide a stable working environment and the Respondent's keeping in touch during sickness absence requirements) put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled?[107]These two issues, which we have taken together, involve consideration of Section 19 of the Equality Act 2010.[108]In determining these issues, we have had regard to the evidence led before us at the Final Hearing, and both parties’ written closing submissions.[109]Ms Dingwall, at paragraph 13 of her written closing submission for the claimant, under “Indirect Discrimination”, stated that: “It is submitted that the practice implemented by the Respondent in terms of the communication the claimant was required to maintain whilst signed off work amounts to Indirect Discrimination as the policy unreasonably effects those with mental health issues, such as that suffered by the claimant, over those who do not suffer from such a condition.”[110]Thereafter, in developing her submissions on the indirect discrimination head of complaint, under Section 19, Ms Dingwall stated that: “15. The claimant gave evidence to the Tribunal that on 2nd August 2016, his last day of work, he was asked by his then manager Ms Fearon to keep in touch daily. In the evidence of Ms Fearon she stated that daily contact was required for the first week and following this contact required to be once to twice a week. When asked by the Tribunal if this was set out in the HMRC Absence Policy document at tab 82 of the Main bundle she stated that it was not but that it was their practice which applied to all continuous absences. This was confirmed by the second witness Ms Frances Findley.16. It is submitted that this practice comes within the definition of a PCP under s19.1(a) as the practice would have been applied to all absences regardless for whether the employee suffered from a disability.17. In relation to 19(1)(b) it is submitted that the PCP in question resulted in a substantial disadvantage, namely that the claimant was unable to effectively recover during his absence and thereby return to work as the practice caused his anxiety to worsen. It is noted that on 16th September 2016 during the Claimants final absence from work an Occupational Health report was issued which was communicated to the Respondent (tab 49 of the main bundle). It was the evidence of the Respondents first witness, Ms Fearon that the respondent would have received this within around 24 hours of the report being issued. On the first page of the report it is reported that the Claimant has stated that a period of two weeks without contact from the respondent would assist in his anxiety and the report confirms that in their opinion that would be the case.18. It was the claimants evidence that he had raised the issue of the practice with his line manager Ms Fearon over the course of telephone contact he had with her during his absence although this is not noted expressly in any of the notes of those telephone calls Ms Fearon did give evidence that she has been aware when speaking to the claimant that he seemed like he was not comfortable with the calls.19. The claimant then raised the issue of the effect the keeping in touch practice was having on his condition in a meeting on 6th October 2016, the notes can be seen at tab 56, at page 175. The respondent was therefore aware of the disadvantage which the policy was causing the Claimant and of the recommendation of the OH report however the policy of contact continued to be applied to the Claimant. 20. It is submitted that given the short period of time suggested in the report, namely two weeks, this would not have had any impact on the respondent given the further period of absence which followed and therefore that the application of the policy was not proportionate especially as it is submitted that the possibility of amending the policy in the case of the claimant was not considered by the respondent. Ms Fearon suggested in evidence that she had discussed delaying the Claimants formal meeting following the OH report but there was no evidence given that she had considered implementing a period of time whereby the claimant was not required to make contact.”[111]For the respondents, Dr Gibson, in his written closing submissions to the Tribunal, stated, in response to issue No.4, that: “In the Respondent's submission the Claimant has failed to show how the Respondent's keeping in touch during sickness absence requirements put him at a particular disadvantage when compared with persons with whom the Claimant does not share his disability. The keeping in touch requirements are a welfare provision which any responsible employer is encouraged to implement. It is not clear how the Claimant was "unreasonably effected" by any keeping in touch requirements. It was he who made the vast majority of calls. During August 2016 he called in nine times, during September 2016 he called in six times. There is no evidence that he found this process stressful at all. He is initiating the calls. It is not that he is getting pestered by management. The Respondent's keeping in touch during sickness absence requirements apply to non-disabled employees of the Respondent. In order to succeed with his claim the Claimant has to show that the Respondent's keeping in touch during sickness absence requirements puts, or would put, persons with whom the Claimant shares the characteristic at a particular disadvantage when compared with persons with whom the Claimant does not share it. He has failed to do so. There is no evidence that people with anxiety and depression are put at a particular disadvantage when compared with persons who do not have anxiety and depression because of the Respondent's keeping in touch during sickness absence requirements. I have actually defended a claim where the opposite argument was brought - the Respondent's failure to keep in touch with a person with anxiety and depression was discriminatory. Indeed that is the more common complaint of people with anxiety and depression - that they go off sick and are then ignored and forgotten about. The Claimant is saying that the Respondent's keeping in touch during sickness absence requirements put him at a disadvantage of increasing his stress levels. It does not follow from this that persons with anxiety and depression would feel the same way. Even if the Tribunal was not with me in this regard then the Respondent has most certainly shown that their keeping in touch during sickness absence requirements are a proportionate means of achieving a legitimate aim. The legitimate aim in question is to ensure that the employee does not begin to feel alienated and remote from the workplace whilst off sick, so that the employee is kept abreast of any changes in the workplace which will aid his smooth transition back to work and to ensure that the employer is kept abreast and is aware of the employees. The amount of calls were entirely proportionate and in keeping with achieving this legitimate aim.”[112]Further, in response to issue No.5, Dr Gibson’s written closing submissions for the respondents, further stated that: “The Respondent would deny that they did require the Claimant to work in an instable working environment in regards to job responsibilities, work team and management. There were some changes to his role in terms of responsibilities and management personnel during his employment, but it is a gross exaggeration to describe these as instability. They were the natural and ordinary change of business requirements and roles which any employee would be expected to undertake. They were not excessive. They were all necessary for business efficiency. Given that the Respondent deny that they applied such a PCP to the Claimant they deny that any duty to make reasonable adjustments arose. Even if the Tribunal are of the view that the Respondent did apply a practice of an unstable working environment to the Claimant it is the Respondent's position that the Claimant has failed to set out in what way this put him at a substantial disadvantage in comparison with persons who are not disabled.”[113]Having carefully considered both parties’ positions, we are not satisfied, from the evidence heard at this Final Hearing, that the respondents’ keeping in touch during sickness absence requirements put the claimant at a disadvantage. Indeed, had the respondents not sought to engage with him, the situation would simply have festered and been even more prolonged, which would have been in the interests of neither party.[114]We are satisfied that the respondents have shown that their keeping in touch during sickness absence requirements, which they apply to all employees, are a proportionate means of achieving a two-fold legitimate aim, reassuring the employee that the business is concerned about them and are not isolating them, and to allow the employer to explore any barriers which are preventing the employee from returning to work. We also agree with the respondents that the claimant has failed to show how this PCP of keeping in touch during sickness absence put him at a particular disadvantage.[115]Further, on the evidence before us at this Final Hearing, we cannot accept that the respondents applied an unstable working environment to the claimant. The respondents denied applying any such PCP to the claimant. We also agree with the respondents that the claimant has failed to show how this alleged PCP of an unstable working environment put him at a substantial disadvantage.[116]For these reasons, we have decided that the indirect discrimination complaint under Section 19 fails. The claimant has failed to prove his case on this head of claim. 6) If yes to 5, did the Respondent fail to take such reasonable steps?[117]This issue involves consideration of Section 21 of the Equality Act 2010. It provides that(1) “A failure to comply with the first, second or third requirements (of Section 20) is a failure to comply with a duty to make reasonable adjustments”, and(2) “A discriminates against a disabled person if A fails to comply with that duty in relation to that person”.[118]In determining this issue, we have had regard to the evidence led before us[119]Ms Dingwall, in her written closing submissions for the claimant, stated that: “21. It is submitted that the Respondent failed to make reasonable adjustments under s.20 (3) Equality Act 2010 in light of the Claimants disability. 22. S.20 (3) provides:…. [nor reproduced here, as replicated above under Relevant Law] 23. Reference is also made to the The Equality and Human Rights Commission: Code of Practice on Employment (2011) (“the Code”) provides:- “ … 6.23 The duty to make adjustments requires employers to take such steps as it is reasonable to have to take, in all the circumstances of the case, in order to make adjustments. The Act does not specify any particular factors that should be taken into account. What is a reasonable step for an employer to take will depend on all the circumstances of each individual case. 6.24 There is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask). However, where the disabled person does so, the employer should consider whether such adjustments would help overcome the substantial disadvantage, and whether they are reasonable. 6.25 Effective and practicable adjustments for disabled worker often involve little or no cost or disruption and are therefore very likely to be reasonable for an employer to have to make. Even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – for example, [text deleted by Judge: Case No: 2500750/2016 10.5 Reserved judgment with reasons – rule 62] compared with the costs of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make. … 6.28 The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take:• whether taking any particular steps would be effective in preventing the substantial disadvantage’• the practicability of the step;• the financial and other costs of making the adjustment and the extent of any disruption caused;• the extent of the employer’s financial or other resources;• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and• the type and size of the employer. 24. It is submitted that the Respondent failed to make reasonable adjustments in the absence procedure for updating the Respondent during the claimant’s absence, namely the keeping in touch policy. It is submitted that the evidence led by the Respondents witnesses made it clear that as set out above there was a practice of requiring employees to keep in touch daily for the first week of absence and then at least once or twice a week following on from that. It is submitted as set out above that this practice had a substantial disadvantage to the claimant due to his disability. 25. It is submitted that the claimant gave evidence that he was told that he required to regularly update the Respondent by phone of his condition despite the fact that he was signed off by his doctor and provided the sick notes to the Respondent. He gave evidence that he felt he was pressured into maintaining constant contact despite him informing the Respondent that this was worsening his condition. This led to unnecessary pressure which ultimately added to his illness meaning he was never in a position to fully recover and return to work. 26. It is accepted that in order for a measure to be considered as a reasonable adjustment it would require to alleviate the disadvantage caused (as per the case of Salford NHS Primary Care Trust v Smith UKEAT/0507/10/JOJ para 49). It is submitted that the evidence before the respondent in terms of the OH report was that providing a period of two weeks would have benefited the claimant’s anxiety, which was also the position of the Claimant. It is submitted that implementing such an adjustment would have therefore led to the alleviation of the disadvantage caused by the practice. It is submitted that had the Respondent implemented reasonable adjustments to account for the condition that the Claimant would have been in a position to seek the help he required, and return to work accordingly. This was also addressed in the Occupational Health Report referenced above in which it was recommended that a period of two weeks would assist the claimant’s anxiety. It is submitted that other employees without the disability of the claimant would not have been effected in this manner. 27. It is submitted that the evidence led by the Respondent’s witnesses made it clear that this adjustment was not considered. Instead the Respondents proceeded to schedule a formal meeting with the Claimant which was due to take place on 21st September 2016 but which the Claimant could not attend due to his condition. The meeting then took place on 6th October 2016 (see Tab 56, page 172 of the Main Bundle). 28. It is submitted that the adjustment would have been a practical one and would not have had any significant financial impact on the respondent given the size of the employer and that the Claimant was already signed off from work at the point when the OH assist report was produced and therefore no additional disruption to the workplace would have been caused. 29. It is submitted that a further reasonable adjustment was open to the Respondent at that time, namely the implementation of a change in the claimants working environment to reduce as much as possible the changes to his work role and management. It is recognised that in accordance with the above code of conduct, the claimant is not under a duty himself to suggest an adjustment however when he does so it is the Respondent’s duty to assess whether the adjustment would help overcome the substantial disadvantage, and it is reasonable. 30. The Claimant did raise the issue of his working environment to the Respondent in the OH referral as reported by the report at Tab 49 of the main bundle, page 160. This report states that the Claimant reported that the constant changes in his working environment, namely the changes in his role and managers were impacting on his condition. The OH report recommends that an individual stress assessment takes pace following the report to assess the impact of these issues (page 161). The Claimant’s evidence was that he also raised this issue at the meeting which took place on 6th October 2016 (see tab 56, page 172-176 of the Main Bundle). At page 174 the Claimant was asked what he felt was contributing to his absence out with work related stress and he informed the manager, Mr McBrearty, that the change in roles and managers contributed. It is submitted that had the Respondent made adjustments to the Claimant’s workplace environment. It is submitted that the provision of a more stable working environment been put in place, a reasonable plan could have been implemented for his return to work and that the Respondent should have known that this adjustment would have been reasonable and would have overcome the disadvantage that the Claimant was placed at, namely the inability to return to work. It I submitted that this had the capability of alleviating the Claimant’s disadvantage and that the Respondent gave no consideration to such an adjustment being made and as such no evidence was available that the adjustment would have been unreasonable. 31. It is therefore submitted that the Respondent failed to make reasonable adjustments which were capable of alleviating the claimant’s disadvantage and which were reasonable in the circumstances.”[120]Dr Gibson, in his written closing submissions for the respondents, stated that: “If the Tribunal are not with me in this regard and believe that the Respondent was under a duty to "provide stability in the Claimant's job responsibilities, work team and management or implement any procedure to assess the effect of the instability" then the Respondent submits that they did take all such reasonable steps. Further, if the Tribunal are not with me in this regard and believe that the Respondent was under a duty to "make reasonable adjustments in the procedure for updating the Respondent during an absence" then the Respondent submits that they did take all such reasonable steps. The Respondent allowed the Claimant to call them at a time which was suitable to him. They required this at reasonable intervals. They only required him to attend meetings in line with their entirely reasonable and standard absence management process. They provided the Claimant with a chair and allowed him to sit where he wished. They made offers of a phased return, reduced hours or one day a week off which were not taken up. They were prepared to take him of telephony work on a temporary basis but he did not return to have this actioned. They drew up a stress risk assessment and were prepared to update this but the Claimant did not engage. They gave the Claimant regular screen breaks. These were not given to all staff as the Claimant stated. They began writing to him and emailing him to his personal email rather than contacting him by phone after the OH report. None of this secured a return to work.”[121]Having carefully considered both parties’ stated positions, we agree with Dr Gibson’s submission that the respondents did take all reasonable steps that they could, and, further, we have to comment that without an identified return to work date from the claimant, it simply would not have been possible for the respondents to make any other reasonable adjustments to the claimant’s job responsibilities, work team, or management, nor to have devised a return to work plan.[122]For these reasons, we have decided that the failure to make reasonable adjustments complaint under Sections 20 and 21 fails. The claimant has failed to prove his case on this head of claim. 7) What level of financial damages, if any, should the Claimant receive?[123]In Ms Dingwall’s written closing submissions, at paragraphs 49 to 53, she submitted that, in light of her principal submissions on liability, the claimant should succeed in his claim against the respondents, and that he is entitled to compensation in the form of loss of earnings, and injury to feelings, as per his Schedule of Loss.[124]Dr Gibson’s principal submission on remedy, on the other hand, for the respondents, submitted that the claimant’s claims should be dismissed, and no compensation awarded.[125]It is our unanimous Judgment that the respondents did not unlawfully discriminate against the claimant on grounds of disability in contravention of the Equality Act 2010, as alleged, and accordingly all of his complaints against the respondents fail, and the entire claim is dismissed by the Tribunal.[126]As we have not found for the claimant, on any of his heads of claim against the respondents, we do not require to address the competing submissions about what sums to award him by way of compensation.[127]Had we required to do so, then in light of our queries about how certain amounts had been computed in the claimant’s Schedule of Loss, for past loss of earnings to date of close of this Final Hearing, on 23 May 2019, we would have required to make further enquiry of the claimant’s solicitor, as well as hearing further from the respondents’ solicitor, before computing what amount of compensation to award.[128]We noted, from parties’ further written representations, joint agreement that if any sum was to be awarded for injury to feelings, then the amount of the Civil Service Compensation Scheme award paid to the claimant should be netted off by the Tribunal. Had we made any award for injury to feelings, we would therefore, on the basis of parties’ joint agreement, have deducted £480.48, the actual sum paid to him by the respondents on 30 November 2016, and not the sum of £450, wrongly stated in the respondents’ Counter Schedule.[129]While the claimant sought £10,000 for injury to feelings, where, at most, the respondents valued it at £1,000, if the claim was successful, which they disputed, we have to say that the claimant did not produce any independent vouching, from a family member, friend, treating physician or other medical practitioner, about the nature and extent to which his feelings were injured by the respondents.[130]Accordingly, on the limited evidence provided by only him to this Tribunal, we would not have been satisfied that this a case falling within the Vento middle band, and, had we been making any award to the claimant, we would have been inclined to consider an award at the lower end of the Vento bottom band, currently £900 to £8,800, and thus well below the £10,000 award suggested by Ms Dingwall on behalf of the claimant.[131]In that regard, we refer to the unreported EAT judgment of His Honour Judge David Richardson, in Esporta Health Clubs & Anor v Roget [2013] UKEAT 0591/12, which makes it clear that a Tribunal has to have some material evidence on the question of injury to feelings. Here, we had the claimant’s limited evidence, and the GP’s medical report, but not direct evidence from the GP or indeed any other person with knowledge of the claimant’s case about the nature and extent of the claimant’s injured feelings.[132]While, as per the claimant’s Schedule of Loss, it is asserted that the ongoing effects on the claimant’s mental health from his treatment by the respondents was “significant”, and that he believed his condition had “worsened” as a result of what he saw as discriminatory treatment of him, throughout his employment, and in their dismissal of him, the Tribunal is obliged to observe that the GP’s report of 14 May 2019 by Dr Laura Wylie, lodged on the claimant’s behalf, records that : “Over the last 2 years he has attended with persistent symptoms of low mood, poor sleep and struggles at times to get out and is clearly stressed regarding the ongoing Tribunal.”[133]From that GP report, whatever the impact on the claimant of the respondents’ actions, during the period of their employment of the claimant, his own GP recognised that he was “clearly stressed regarding the ongoing Tribunal,” and so, without the GP’s oral evidence to assist us, it would have been very difficult indeed for us to differentiate between any stressors caused by the respondents, any other stressors, and any stressors caused by the claimant’s decision to prosecute this claim before the Tribunal.