Ms Kirsten SouterClaimantDundee City CouncilRespondent
Before
Employment Judge I McFatridgeDate 18 February 2021
JUDGMENT
The unanimous judgment of Tribunal is that (One) The claimant was not unfairly dismissed by the respondent. (Two) The respondent did not unlawfully discriminate against the claimant on grounds of disability. The claims are dismissed. E.T. Z4 (WR)
REASONS
[1]The claimant submitted a claim to the Tribunal in which she claimed that she had been unfairly dismissed by the respondent and that she had suffered unlawful disability discrimination at their hands. The respondent submitted a response in which they denied the claim. It was their position that the claimant had been dismissed on grounds relating to capability and that the dismissal was procedurally and substantively fair. They accepted that the claimant was disabled in terms of the Equality Act but denied discrimination. The claim was subject to a degree of case management during which it was clarified that the discrimination claims were being made in terms of section 15 and section 21 of the Equality Act 2020. The issues in the case were set out in a note produced by EJ Cowan following a preliminary hearing which took place on 14 August 2020. The final hearing of the case took place over three days on 1, 2, 3 February 2021. It took place over CVP. Evidence was led on behalf of the respondent from Jane Barrie an HR Manager with the respondent who had been involved in managing the claimant’s absence, Susan Duncan a Social Worker and Team Leader who was the claimant’s line manager, Martin Dey an Operational Manager with the respondent in their Community Justice Section who made the decision to dismiss the claimant and Alison Leuchars Acting Service Manager Children and Families with the respondent who heard the claimant’s unsuccessful appeal against dismissal. The claimant gave evidence on her own behalf. All of the witnesses gave their evidence in chief through witness statements. The respondent’s representative was given consent to ask a number of supplementary questions of her witnesses to deal with matters which were raised in the claimant’s witness statement and had not been previously dealt with. The parties also agreed a joint minute of agreed facts which was lodged at page 194 of the hearing bundle. A joint bundle of productions was lodged which is referred to by page number in the judgment below. During the course of the hearing an issue arose regarding the claimant’s sick pay and the respondent’s representative sought and was granted consent to lodge additional documentation in the form of the claimant’s pay slips. On the basis of the evidence, the joint statement of facts and the productions the Tribunal found the following factual matters relevant to the claims to be proved or agreed. Findings in fact[2]The claimant commenced employment with the respondent on 15 September 2011. She was employed as a Social Worker and worked in the Community Justice section of the Children and Families Department of Dundee City Council. Her role involved preparing social work reports for the court and supervising people on community orders. It could be a high pressured job where reports required to be prepared within tight timescales. It was also a role where it was important for there to be some continuity of contact between a service user and the department so that social workers could develop a rapport with their service users. A social worker might require to make important decisions such as whether or not to declare an individual in breach and it was considered to be important that in order to make this decision the same social worker should be involved with the same service user over a period of time.[3]The claimant has had a lot of bad fortune due to her ill health in the past few years. In 2016 the claimant was diagnosed with stage 3 Hodgkin’s lymphoma blood cancer. She is now currently in remission for this. She required to undergo chemotherapy. She was absent from work for a considerable period of time as a result of this. She returned to work but on 31 March 2017 she required to be rushed to hospital and put on life support. She was diagnosed with lupus (SLE) and required to undergo various treatments. When she went to hospital she was around four months pregnant and unfortunately her pregnancy required to be terminated in order to save her life. She was also advised at this time that she had a problem with her heart caused by the intense chemotherapy she had received in 2016.[4]The claimant also suffers from PTSD and depression. It was a matter of agreement between the parties that the claimant is a disabled person under section 6 of the Equality Act 2010. The claimant’s disabilities are lupus, anxiety, depression and PTSD.[5]The claimant had been diagnosed with anxiety in 2011 at the same time as she was diagnosed with depression. She was diagnosed with PTSD in 2017. This was at the same time as she was diagnosed with lupus. She has stage 4 lupus which is the highest stage. This causes periods of extreme fatigue and extreme joint pain. The combination of these impairments effects the claimant’s ability to concentrate and can cause extreme fatigue. One feature of her condition is that she occasionally has periods where she becomes withdrawn and unable to face people. The claimant prepared a disability impact statement in or around September 2020 in preparation for these proceedings. This was lodged (page 14 and 15 of the joint bundle).[6]The respondent have a number of procedures regarding sickness absence and absence management. Currently the relevant policy is the “Health and Wellbeing Policy on Promoting Health and Attendance” which was lodged at page 149-154 of the bundle. The respondent also have a policy entitled Procedure for Retention and Redeployment (Medical Reasons) which was lodged (page 155-156).[7]The claimant’s absence record for her period of employment was lodged (page 76-77).[8]This policy was amended in or about 2017. The current policy is the one lodged and was applicable to the claimant from 2017 onwards.[9]The claimant had various absences in 2015 which included an absence for anxiety/depression. She was placed on a six month monitor on 7 December 2015. She commenced a lengthy absence due to her cancer treatment on 3 February 2016 which lasted 218 days. She was referred by the respondent to their occupational health advisers towards the end of this period. An occupational health report was produced on 21 November 2016 which was lodged (page 131). The report made recommendations for the council to make various adjustments to allow the claimant to return to work. The adjustments were made by the respondent. The claimant returned to work and on 5 December 2016 the claimant was placed on a 12 month monitor under the respondent’s policy. At that time the claimant had had been absent for 235 days on three occasions in the previous 12 months. The monitor was confirmed in a letter dated 5 December 2016 which was lodged (page 127). The respondent advised the claimant that her attendance record would be monitored on a monthly basis over the next 12 month period and the respondent hoped to see a significant and sustained improvement occurring during this time. As noted above the claimant unfortunately became extremely unwell in March 2017. The claimant was again referred to occupational health. At that point the claimant was having difficulties with her PTSD and her mental health. She was receiving a lot of medication to assist with this and also her lupus. The respondent’s occupational health providers provided a report to the respondent dated 28 September 2017 which was lodged. This set out a number of adjustments to her workstation as well as a phased return to work. These adjustments were carried out by the respondent. The claimant was placed on a new 12 month monitor from 5 November 2017 onwards.[10]The claimant having returned to work on a phased return in November 2017 then unfortunately hit another absence trigger in June 2018.[11]The respondent’s policy includes a section on short term absence which starts at the bottom of page 151. It notes that “2.1 An employee will be called to a return to work/support and monitoring meeting to discuss his/her absence record(i) when the employee has been absent on three or more separate occasions or for a total of six working days over a rolling six month period;(ii) when the employee has been absent on four or more separate occasions, or for a total of 10 working days over a rolling 12 month period.” Section 2.6 goes on to state “Should absence not improve to a satisfactory level and hit a further trigger within the period of monitoring a second meeting will be arranged. This meeting will follow the same format as the first meeting and will result in the employee’s absence being subject to a further period of monitoring note (i) a maximum of two successive period of monitoring may be put in place before a final opportunity to improve attendance is considered. For the purposes of this policy a successive period of monitoring is defined as: a further monitor which is applied before the current period of monitoring has expired. (ii) Where an employee has been subject to two individual monitoring periods within the previous two years and hits a further trigger, a longer period of monitoring may be considered appropriate.” The policy then states “2.7 Should absence not improve to a satisfactory level and hit a further trigger during a second successive period of monitoring a final opportunity to improve attendance may be given and a formal support and monitoring meeting will be arranged by a manager with the relevant authority to issue a final opportunity to improve. The employee will have the right to be accompanied by a trade union representative or fellow employee at this meeting. This may then result in a further period of support and monitoring which may be a final opportunity to improve attendance to a satisfactory level however prior to issuing a final opportunity the manager should be satisfied that the procedures were followed and that where necessary all reasonable supports have been implemented. Where a final opportunity to improve attendance is issued the employee will be advised that if no such improvement is forthcoming dismissal will be considered. The employee will have the right of appeal against a final opportunity for improvement. 2.8 Where absence has not been of a satisfactory level over a number of years or hits a trigger following conclusion of a period of monitoring the employee may be granted one further and final opportunity for his/her absence record to improve to a satisfactory level over a period of 12 months or longer if appropriate and be advised that if no such improvement is forthcoming dismissal will be considered. The employee will have the right of appeal against a final opportunity for improvement. …… 2.11 Where an employee is absent for a long term period during a final or extended final opportunity to improve attendance a support and monitoring meeting will be held to consider dismissal at the point of the trigger being hit unless there are exceptional circumstances.”[12]By June 2018 the claimant had had three further absences on 5 January, 28 February-4 March and 15-17 June. She had thus hit the trigger of having three absences within six months. She was already on a 12 month monitor which had been put in place the previous November. At that time she had been on a monitor put in place from the previous December.[13]The three absences at that time were due to the claimant having one day off for a hospital appointment, one day off due to fatigue and three further days off due to pains. All of these were disability related.[14]Ms Duncan the claimant’s Line Manager wrote to the claimant on 18 June 2018 confirming that she was on a further 12 month monthly monitor. She was told that the respondent hoped to see a significant and sustained improvement during this time (page 113).[15]Unfortunately the claimant had a further period of absence when she was off for four days in September 2018 and an additional day off in October. She was then off for a lengthy period of absence of 28 days from 3 December 2018 to 16 January 2019. The cause of the last lengthy period of absence was anxiety/stress and was related to the claimant’s disability.[16]The claimant returned to work in January 2019. The claimant advised her manager Ms Duncan that she found working in a busy open plan office was not good for her concentration so she asked for a quiet room. This was provided for her. This was in addition to the various adjustments to her workstation which had been provided in 2017 and also in 2018 following a further workplace assessment. Ms Duncan also provided additional support to the claimant in other ways. The claimant had indicated following her return to work that she was having difficulty with writing her reports. She was also having difficulty scheduling things. Ms Duncan arranged with the claimant that the claimant would have formal supervision with Ms Duncan more often than usual. At the supervision sessions she would try to assist the claimant with managing her workload. She provided the claimant with templates to assist her. She also made suggestions about timetabling so that the claimant was not in a position where there was a last minute rush to meet a deadline.[17]The claimant attended a further absence meeting with Ms Duncan in January 2019. This was attended by the claimant, Ms Duncan and Ms Barrie. The claimant was advised that since the last meeting concerning her absence on 18 June 2018 her absences totalled a further 37 days over three occasions. The claimant had already been placed on a six month monitoring period and two previous 12 month monitoring period before the latest 12 month monitoring period had been imposed in June 2018. The letter goes on to state “At the meeting you advised that you had over the last three years experienced a number of serious health issues, cancer, systemic lupus and a miscarriage which culminated in a mental breakdown. Prior to this you had indicated you had not really accepted your health issues and had tried to work through but then recognised that it was impacting not only in your health but your practice also. From this you are now receiving support from the medical services including psychology and believe it has helped you to come to terms with the events over the past three years. Throughout the meeting you did state that you had received a lot of support from CJS and that the service had done all it could to provide you with the support you required. I reaffirm that referrals had been made to OH and resources put in place to ensure you had what was required to support you to remain at work. This included a workstation assessment where headphones etc were provided, a quiet room and remote access to allow working from home when necessary. Having given careful consideration to all the information presented and whilst it is accepted that over the past three years you have experienced a number of health issues it is my view that your absence record continues to give cause for concern and as a result I am issuing you with a final support and monitoring period of 12 months. I must remind you that this is a final support and monitoring period to assist you to improve your absence to a satisfactory level. If no such improvement occurs and your absence continues to give cause for concern during the monitoring period a further meeting will be arranged which may result in consideration being given to your dismissal. During this period of monitoring we will have regular discussions regarding any supports required to improve and maintain your health and wellbeing and your attendance at work. You should however raise any issues you have in respect of your health and wellbeing at any time with myself as your manager in order to ensure that required reasonable supports are available as soon as possible.” The claimant was advised of her right to appeal this. The claimant did appeal and attended an appeal meeting on 13 February 2019. The appeal meeting was conducted by Michael Holligan who was accompanied by Jane Barrie. The claimant’s appeal was not successful and on 21 February 2019 Mr Holligan wrote to the claimant confirming this. (page 102-103). He stated “…. Ms Duncan explained that her decision to issue a final monitoring and support period was based on the number of overlapping monitors that had been in place from December 2015. She also set out the reasonable adjustments and ongoing supports that had been agreed over that period in order to promote your attendance. You agreed that since your return to work on 17 January 2019 there have been no further absences and that the adjustments that have been put in place are helping your attendance and you have seen an improvement in the quality of your work and your ability to meet deadlines. Having examined your absence record and considered the supports that are in place I conclude that it is a fair decision to issue you with a final support and monitoring period of 12 months beginning on 17 January 2019. There is good evidence of a continuing dialogue between yourself and your team manager with regard to support arrangements. The solution of focused discussions remain as part of the supervising and support arrangements to promote your attendance. You have re-evaluated your work life balance and intend to seek flexible working arrangements to reduce your working week to four days which (if and when agreed) should also support your attendance in work. We discussed briefly the ability of Dundee City Council to vary the working year if a pattern of flare-ups becomes established but any discussion of that would only be relevant if there is a pattern that becomes evident. This final period of support and monitoring remains at 12 months’ duration from 17 January 2019. We all hope that the period will conclude with an improvement of your attendance to a satisfactory level. If that improvement does not occur and your absence continues to be of cause for concern during the monitoring period a further meeting will be arranged where consideration will be given to your dismissal. During this period of monitoring there will be regular discussions with you regarding any supports required to improve and maintain your health and wellbeing and attendance at work. You should raise any issues you have in respect of your health and wellbeing as soon as you become aware of them to ensure that required reasonable supports are available as soon as possible.”[18]During discussions with Ms Duncan and Ms Barrie at this time the claimant was offered counselling. She did not take it up as she was accessing support through the NHS. Following her meeting with Mr Holligan the claimant advised Ms Duncan at a supervision meeting on 14 February that because she was still easily fatigued as a result of her illness she wished to reduce her working hours from 37 per week to 30 hours. Ms Duncan processed this request and it was confirmed that the claimant’s contract was altered so that she would work Mondays, Tuesdays, Thursdays and Fridays with every Wednesday as a non-working day. This commenced from 4 March 2019. The claimant was also advised at this time that in order to assist her the respondent would permit her to work from home when she felt fatigued. At that time this was an unusual adjustment for the respondent to make. When the claimant was working from home she required to sign out documentation to enable her to do this. The claimant signed out documentation to enable her to work from home on around six or seven occasions. In addition to this there were occasions where the claimant would telephone in in the morning to say that she was feeling fatigued and she would be working from home that day. Ms Duncan permitted this. Generally, the claimant required to obtain Ms Duncan’s consent before she worked from home or if Ms Duncan was not available she had to obtain consent from another manager.[19]The claimant was still struggling with managing her time and getting the reports in. There were a number of work performance issues relating to timekeeping and keeping clients waiting. These were addressed with the claimant in supervision by Ms Duncan. An issue arose where the claimant tended to forget to take a copy of her diary appointments home and then would forget what appointments she had. Ms Duncan worked on these issues with the claimant and some progress was being made.[20]Unfortunately, despite these supports the claimant went off again on 13 August 2019 initially reporting this as due to sickness and diarrhoea. On 16 September 2019 the claimant e-mailed Ms Duncan to say that she would be putting in another medical ceritificate. Ms Duncan tried to phone the claimant but there was no answer. Ms Duncan then decided that it would be appropriate to refer the claimant to the respondent’s occupational health providers again. She e-mailed the claimant to advise her of this. The e-mail was lodged (page 101). The claimant e-mailed Ms Duncan on 16 September stating “Just to let you know the doctor signed me off for another two weeks in relation to my mental health … This has to be fully stabilised before I can move on with my life this time. Will hand in Meds Cert this afternoon.”[21]The following day the claimant sent an e-mail to Ms Duncan stating “Sorry to bother you I was also wondering if you had a spare hour if it would be possible to meet with me at home. You’ve always said if there was things I wanted to discuss I should and I haven’t properly. If you can’t due to time restraints and how busy you are I fully understand I would accommodate whatever suits you.” (page 97) Ms Duncan e-mailed the claimant to advise she would come out the following day. Ms Duncan duly attended the claimant’s home but got no response. She was aware that the claimant had just moved house so went to the other address she had for the claimant. The claimant did not respond at either address. Ms Duncan then e-mailed the claimant stating “I did come out to try to visit you for a home visit but unfortunately you were not available. We do need to organise a visit and if you do not feel comfortable in attending Friarfield we can arrange to meet either at Dudhope or Claverhouse. I also need to get a copy of your medical certificate your previous one ran out on 15 September so if you could get that to the office as soon as possible it would be appreciated. In regarding to scheduling a meeting I am free Thursday 26 September at 9:30 and can arrange a room – can you please confirm you can attend this date/time and I will then confirm venue.” (page 96) Ms Duncan’s purpose in fixing the meeting at somewhere other than the claimant’s workplace was that she felt that the claimant would not know anyone at Claverhouse. Also Claverhouse is nearer to her home than the other alternatives.[22]The claimant failed to attend the meeting nor did she contact Ms Duncan to advise she would not be coming. Ms Duncan then undertook a visit to both the claimant’s houses again but there was no-one home. On 26 September Ms Duncan e-mailed the claimant again stating “I waited until 9:45am for you to attend the meeting that was scheduled today at Claverhouse. I had scheduled this meeting to enable you to discuss the matters you said you wanted to talk about with me in your earlier e-mail when you requested a home visit. I did the home visit to both your old and new address but couldn’t make contact with you. I therefore sent the letters to you advising that I was scheduling the meeting today as I realised how important it was for you to be able to discuss the concerns you may have. However I was disappointed that you did not attend or even make contact. I then tried to undertake another visit to get you at home again but got no response. There are other meetings scheduled which you will need to attend and I was going to give them to you but I could not even put them through your letter box so they have now been posted. I will provide details of the meetings below. Monday 30 September at 10.15 – Pam O’H (you will receive notification directly from them but is just to confirm) Wednesday 2 October at 10am long term absence review at Friarfield House (letter with details has been sent) I also enclosed a stress discussion document in the letter issued which I was going to go over with you today however I would ask you to look over it and bring it back with you to the absence review meeting.” (page 91)[23]The letter referred to in that e-mail was lodged (page 92). It is dated 23 September 2019 and states “Policy on Promoting Health and Attendance Absence Management Review: trigger hit within a 12 month monitor with a final opportunity to improve I refer to your sickness absence record and in accordance with the Council’s policy on promoting health and attendance you are requested to attend a meeting on 2 October 2019 at 10.00am at Friarfield House Room G18, Jane Barrie HR Officer will also attend the meeting. The meeting has been arranged to review your absences since the meeting on 17 January 2019 when you were issued with a final support and monitoring period and advised that if your absence did not improve to a satisfactory level over a 12 month period, consideration would be given to your dismissal. I can confirm therefore that consideration will be given to terminating your employment at the meeting. This meeting will consider your current period of absence that began on 22 August 2019 and will also consider the medical advice from your appointment on 30 September 2019. You may be accompanied at the meeting by a trade union representative or fellow employee during the meeting, but it is your responsibility to ensure that any such representative attends.”[24]The referral to occupational health made by Ms Duncan on 16 September was lodged (page 99-100). She sought advice as to the claimant’s current fitness for work, the effect her condition would have on her ability to carry out her duties and whether there were any modifications/adjustments which would alleviate the condition or assist or aid rehabilitation.[25]The claimant duly attended the occupational health appointment on 30 September 2019. They produced a report which was lodged (page 85- 90). Under Current Issues (page 85) it states “As you are aware Kirsten has been on sickness absence leave since 22 August 2019 due to SLE and anxiety and depression. She advised of reduced concentration and anxiety regarding mistakes she was making at work. She advised of an accumulation of mental health related symptoms and found it increasingly difficult to cope with work. She advised that she had a change in medication for her mental health around 4-5 weeks ago and she is now starting to feel some therapeutic benefits. She advised that she was finding it difficult to leave the house, socially interact and undertake activities of daily living, however she advised that this is now improving. She advised that support measures have been put in place for her at work but she advises that ongoing anxiety related to work. Kirsten advised that she is due a GP review today and does not yet feel ready to return to work. OH Opinion Kirsten continues to experience symptoms relating to her mental health that are impacting on her ability to attend work. She is likely to be signed off for at least another two weeks when she is reviewed by her GP today. She has completed a validated mental health questionnaire which indicates elevated mood related symptoms. She is starting to feel the therapeutic benefits of her medication and it is likely to be another 2-3 weeks before the full benefit to be realised. We have discussed counselling and she has agreed to a referral which I have made on your behalf.” The report then goes on to answer the questions posed. It confirms that the claimant remained unfit for work due to her mental health. It advised that “Kirsten is still to feel the full benefit of her medication and she appears to be now experiencing some improvement in her symptoms. These need to improve further for a return to work to be feasible. I am hopeful that she will be able to return to work within the next four weeks.” In answer to the question what effect will this condition have on the employee’s ability to carry out his/her duties the report states “Kirsten advised of reduced concentration due to SLE and this is likely to be ongoing and will fluctuate. She also advised that she can experience pain due to SLE which can also impact on concentration. She is likely to benefit from ongoing support around this.” The report goes on to recommend a phased return together with regular dialogue during the claimant’s phased return. It advised that the claimant might need more time to complete tasks and a modified workload due to reduced concentration.[26]The claimant did not attend the sickness absence meeting arranged for 2 October. Ms Duncan telephoned the claimant but the claimant did not answer her. Ms Barrie who was supporting Ms Duncan then also telephoned the claimant. The claimant did not answer Ms Barrie’s call either. The claimant did however telephone Ms Barrie’s phone a few minutes later presumably because she had not recognised the number. Ms Barrie then passed the telephone to Ms Duncan. The claimant advised that she was not aware of the meeting as she had not opened any mail as she was ‘not in a good place’.[27]Ms Barrie then arranged to reschedule the meeting which was eventually fixed for 11 October. The claimant indicated that she still felt unable to attend personally but she was represented by her trade union representative Jim McFarlane.[28]The meeting was conducted by Martin Dey who was Ms Duncan’s Line Manager and was responsible for the Community Justice Service. Mr Dey was very much aware of the requirements of the claimant’s role. He was familiar with the claimant’s situation and the difficulties caused due to her absence through supervising Ms Duncan and other managers in the service. He had also on occasions required to attend meetings and answered correspondence from the Sheriffs in relation to the service they were receiving from the Community Justice Service particularly in relation to reports. Ms Barrie also attended the meeting to provide HR support to Mr Dey. Ms Barrie produced a note of the meeting which was lodged (page 72-73). The Tribunal considered that this was an accurate summary although not a verbatim note of what took place at the meeting.[29]Mr McFarlane claimed not to be aware that there was a risk of dismissal at the meeting albeit this was very clearly stated in the letter dated 2 October calling the meeting. In addition to this Mr McFarlane knew that the claimant was on a final opportunity to improve and the implications of any further absence. Mr McFarlane advised that the claimant was not attending as she couldn’t face people. She said that getting out was a problem and she had asked Mr McFarlane to represent her in her absence. He said that the claimant appreciated the support which she had been given but felt that she was not able to come back to work as a Social Worker. She wished to be redeployed as a Support Worker.[30]Both Ms Barrie and Mr Dey were somewhat surprised at this. Both were surprised that if this was something the claimant was considering then she had not mentioned it at any point before and indeed had not mentioned it at the occupational health meeting a week or so earlier. Ms Barrie was aware that the terms of the respondent’s redeployment policy redeployment would only be considered if there was a recommendation to that effect from occupational health. If redeployment was authorised then what would happen is that the claimant would go on a redeployment register however it was by no means certain that a suitable post would exist and there was a likelihood that the claimant would be dismissed. In any event both were also aware that the post of Support Worker is also a high pressured stressful role where the employee requires to be present and work to tight deadlines. Support Workers do have a caseload and have to interact with service users. Both were of the view that even if the claimant qualified for redeployment in terms of their policy, which she did not, and even if there had been a role available it would have provided absolutely no assistance to the claimant.[31]In addition, Ms Barrie’s understanding was that the claimant had mental health difficulties and PTSD which were not specifically work related. They were related to her lupus and her general health condition. There was no evidence that the claimant’s absence was caused by work related stress or in any way linked to a role as a Social Worker. Ms Barrie considered that the comments in the occupational health report about the claimant’s work were about the effects of her mental health on her work rather than work being the cause.[32]Ms Barrie was aware that in any event the position in terms of the respondent’s policy was that the meeting was convened in terms of paragraph 2.11 of the policy on promoting health and attendance (page 149). In her view the meeting was not about giving the claimant a date to return. The meeting was to give consideration to dismissal because the claimant had hit a trigger while on a final opportunity to improve.[33]Ms Barrie was aware of the way the respondent’s policy had developed over the years. She was aware that section 2.11 had been inserted in a revision of the policy a few years previously to deal with what had been seen as an anomalous effect of the previous policy. Previously, if an employee was on a final opportunity to improve and then went off on long term absence the absence would be dealt with under the respondent’s long term absence policy which placed emphasis on giving the employee a date to return to work. What tended to happen was that the employee would eventually return to work once the reason for their long term absence had abated and the respondent would then require to deal with the fact that they had hit a trigger by holding a further absence management meeting after their return to work. When this resulted in dismissal because the respondent considered that the possibility of that employee providing regular attendance in future was low the respondent would often be criticised for having dragged matters out.[34]During the course of the meeting Mr Dey raised with Mr McMillan the fact that although the information which Mr McMillan was passing on from the claimant was to the effect that the claimant was unable to interact with people Mr Dey had been personally shown facebook posts from the claimant by other employees. These showed that the claimant appeared to be running a make-up business. Mr Dey was aware from having had a previous meeting with the claimant that the claimant wanted to set up business as a beautician. This had been mentioned at a meeting which Mr Dey had had with the claimant in or about July 2019 to go over the various adjustments which were being offered to her at this time. Mr Dey had told the claimant that if she was taking on other work she would require to fill out a form so that the respondent had that information and could ensure that her work for the respondent was not impacted negatively. Mr Dey was aware that the claimant had not completed such a form. The point which Mr Dey was making was that the claimant did appear to be able to interact with people online in relation to her beautician work. In particular, he had been advised by another member of staff that the claimant had posted a photograph of a beautician’s chair alongside the caption ‘just about to start work for the day’ at a time when she had indicated to her representative that she was entirely unable to deal with any personal interactions.[35]Mr Dey adjourned the meeting. Ms Barrie advised Mr Dey in relation to the policy. Mr Dey required to consider whether the final opportunity to improve had been appropriately given and he concluded that it had. He noted that the claimant had appealed the final opportunity to improve and that appeal had been considered and dismissed. Mr Dey also noted that the claimant could in fact have been put on a final opportunity to improve much sooner in terms of the policies. Somewhat unusually she had been given three separate and sequential 12 month monitors after an initial 6 month monitor.[36]He considered whether the respondent had made all reasonable adjustments to support the claimant at work and he concluded that they had. He was very aware that Ms Duncan had been an extremely supportive manager to the claimant and he felt that the respondent had done everything they possibly could to assist her. He felt that the suggestion of a demotion to Support Worker was not one which could be pursued. It was made outwith the respondent’s policy since it had not been part of any occupational health recommendations. He was also of the view that there was no real explanation of why that would be of any assistance to the claimant given the nature of the role and the occupational health advice regarding the claimant’s mental health difficulties.[37]Mr Dey was aware of the effect on the Community Justice Service of an employee who had frequent lengthy unplanned absences. He considered that in many ways an unplanned absence was much harder to deal with than a situation where the service was simply short staffed. He knew that work was allocated to an individual worker and that the individual worker was then expected to provide the report to a timescale. If that worker then went off ill, another worker would require to take up the slack and might require to do some of the work all over again. In addition he considered that it was important that there be a continuity of contact in that service users would get to know the social worker allocated to them and a degree of trust would build up. Similarly, it was essential that the social worker get to know the service user over a period of time so that they could decide on the most appropriate interventions particularly if there was any risk of that service user being declared in breach of their community based order. He considered the claimant’s absence record to date. He noted that in his view all the appropriate supports had been provided. He saw that the respondent were faced with another 30 days’ absence and felt that despite the points made in the occupational health report there was no clear end in sight. He felt that even if the claimant returned within a few weeks this was very unlikely to be the last absence which the claimant would have. He felt that based on the terms of the report the respondent were likely to be faced with further frequent unplanned absences in future. In those circumstances, given that the claimant was on a final opportunity to improve he considered that the appropriate step to take was to dismiss the claimant.[38]Mr McMillan was advised of the decision on the day and communicated it to the claimant. The respondent wrote to the claimant confirming her dismissal in a letter dated 11 October 2019 which was lodged (page 70- 71). The claimant was dismissed on grounds of capability due to her unacceptably high level of absence. She was paid six weeks’ pay in lieu of notice. Her effective date of termination of employment was 11 October 2019.[39]In the meantime an appointment had been made for the claimant to attend counselling which was due to take place on 15 October. It is unclear whether this referral was made by PAM occupational health on behalf of Ms Duncan or whether Ms Duncan herself was involved in making the appointment for counselling. In any event Mr Dey was unaware that an appointment had actually been made at the time of the meeting on 11 October.[40]The claimant’s letter of dismissal had advised her that she had a right of appeal. The claimant duly appealed. The appeal letter sent by the claimant was a one line letter simply indicating that she wished to appeal and gave no grounds of appeal. At some point the claimant submitted a fairly lengthy statement giving her grounds of appeal on a form which she forwarded to her trade union. (p60-69) This was part of the process by which the trade union approved her continued representation. This form was only used internally by the union and was not at any time presented to the respondent or indeed referred to.[41]The claimant attended an appeal hearing on 14 November 2019. The hearing was conducted by Alison Leuchars who is the Acting Service Manager in Children’s and Families Department within the respondent which includes the Community Justice Section. She is Martin Dey’s Line Manager. She had not met the claimant before having only just taken over her role in August 2019. Ms Leuchars was accompanied by Jane Barrie who provided her with occupational health support at the meeting. The claimant was represented at the meeting by Mr McFarlane her union representative.[42]Both Mr Dey and Ms Duncan also attended the meeting to give evidence to Ms Leuchars. They outlined the various supports which had been put in place for the claimant over the years. Ms Duncan also indicated the additional efforts she had made including visiting the claimant and keeping in touch with her. The claimant raised the issue of counselling. Ms Leuchars’ view was that it was clear that counselling had been offered to the claimant on numerous occasions in the past most recently in January 2019 but that the claimant had decided not to avail herself of this. The claimant confirmed that she had been told in January 2019 that counselling was available for her if she ever needed it.[43]The claimant also raised the issue again of redeployment. Ms Dey considered that this would not have been helpful. She was aware that as a service the issues faced by the respondent are the same both for social workers and support workers. The claimant’s ability to attend the workplace would be an issue in both roles. She would still as a support worker require to prepare reports, attend meetings and support clients. She considered that the roles were substantially very similar albeit the social worker carried more responsibility and was paid more. She was aware that the job of social worker and support worker both involved working with the public and could be unpredictable. She considered that if one has an appointment with someone in crisis there is only so much you can do to rearrange or manage that and support was often required with a level of immediacy. A support worker has the same office environment, accountability and there is a same vulnerability of service users. She also considered it to be a stressful fast paced job where one has to ensure that up to date accurate information is passed on appropriately. She was aware that people’s liberty can depend on social workers and support workers carrying out their role appropriately. Ms Leuchars was aware of the issue regarding the make-up posts on facebook. She understood from Jane Barrie that if the claimant returned to work then there might require to be a separate disciplinary investigation relating to this however this did not form any part of her decision. The matter had not yet been investigated by the respondent and she was well aware that it would be entirely inappropriate for this to feature.[44]She noted that whilst there had been some improvement in the claimant’s attendance on the basis that the claimant had not had the same lengthy periods of absence as she had had in 2016/17 she considered that the claimant’s level of attendance was still quite clearly unacceptable. The claimant had gone off for a lengthy period of absence at the end of 2018 which had led to her being put on a final opportunity to improve in January. Since then she had hit the trigger and had now been off for a lengthy period again. Her view like that of Mr Dey was that it was quite clear to her that this was not going to be the last such absence which the respondent would require to deal with if they allowed the claimant’s employment to continue. She considered looking forward that there was no realistic possibility of the claimant providing an acceptable level of attendance. She considered that all possible adjustments had been made to the claimant including allowing home working which she was aware was somewhat unusual at that time. With regard to counselling she considered that there had been opportunities within the process to obtain this beforehand. There was absolutely no suggestion that it would result in any improvement in attendance. Similarly, although she noted the claimant was on new medication she was not at all convinced that that would make any difference. She decided to uphold the decision.[45]At the hearing the claimant advised Ms Leuchars that she had applied for a new role with Fife Council as a Social Worker. She had made this application in September/October during the period when she was off ill from the respondent and indicated that she was not in a position to interact with anyone. The claimant had been successful in obtaining this role subject to references and Ms Leuchars considered that the claimant was fairly upbeat at her appeal meeting as a result of this.[46]Ms Leuchars conveyed her decision to the claimant in a letter dated 18 November which was lodged (page 49). The claimant was advised that she had a further right of appeal to the respondent’s special appeals committee. This is a committee composed mainly of councillors who provide the third and final level of decision making in cases such as this. The claimant did not lodge an appeal to the special appeals committee. The claimant’s understanding was that her union representative would be lodging this on her behalf and by the time she discovered that he had not done this it was too late to lodge the appeal.[47]As part of the pre-employment procedures with Fife Council Ms Duncan as the claimant’s previous line manager was asked for a reference. Ms Duncan provided a factual reference. The claimant was subsequently advised by Fife Council that they were withdrawing their offer of employment since the reference they had received was not acceptable to them.[48]Following her dismissal the claimant’s depression and anxiety were heightened. She felt like a failure to herself and that she had lost her identity as a professional. She was also worried about her financial situation. She applied for a number of jobs including the job at Fife Council. Following the withdrawal of the offer of employment from Fife Council she took some time out from this because of her mental health. She claimed benefits. Subsequently the claimant applied for a role in a nursery and obtained it. She started to work for Flexible Childcare Service on a sessional basis for six months. Thereafter she began working for another nursery as a sessional worker. She has also enrolled in Dundee College evening online classes to obtain her National 5 qualification in Maths. Once she passes this she intends to apply to university for a postgraduate course in teaching to become a primary school teacher. Although the claimant was initially seeking re-engagement or reinstatement by the time of the hearing she indicated she was only seeking compensation. Matters arising from the evidence[49]There was very little way of factual dispute between the various witnesses. Most facts in the case were agreed. There were a couple of evidential matters which arose mainly in relation to the cross examination of the respondent’s witnesses and it is probably as well that the Tribunal set out its view regarding these. First of all it was suggested that Ms Duncan had referred the claimant for counselling on 30 September. This was put to Ms Duncan in cross examination and Ms Duncan accepted that she had probably done so. Ms Duncan was not re-examined on the matter but the following day the respondent’s representative raised the issue at the outset of the claim and referred the Tribunal to various documents. It was her position that Ms Duncan had been confused the day before.[50]The documentary evidence would suggest that Ms Duncan did not in fact make the referral to counselling but that this was done by PAM OH, the respondent’s occupational health providers. The reason for this is that they say that they are going to do this on page 85. They then say on page 89 that they have made the referral and page 90 which bears a typed signature of Ms Duncan appears to be part of the paperwork for the occupational health consultation prepared by PAM OH. In addition the circumstantial evidence at the time was that Ms Duncan was not actually in contact with the claimant at any point around the 30 September. The Tribunal accepted Ms Duncan’s evidence about the various attempts she made to contact the claimant by going to her home but the fact is that Ms Duncan had not been in touch with the claimant. It would seem to be quite bizarre at that point for Ms Duncan to have made the reference to a counsellor without checking with the claimant that she did indeed wish to go to counselling. At the end of the day the Tribunal decided that this was not a matter on which we could come to a final conclusion. On the one hand we had Ms Duncan’s agreement in her evidence that she had made the referral, on the other hand the documentary evidence suggested this was very unlikely. At the end of the day the Tribunal considered that it did not matter a great deal and we deal with the issue in our discussion below. The only other area of potential conflict was in relation to home working. The claimant’s position was that she had generally been permitted home working when she asked for it. She did however refer to one occasion when she had asked Mr Dey if she could work from home and Mr Dey had refused. She had not previously indicated this in her pleadings and in her evidence did not give any time frame as to when this might have happened. In evidence it was the claimant’s position that what ought to have happened was that the respondent should have set up a regular system where she automatically worked from home on certain days. The evidence from Ms Duncan was that the arrangement was that the claimant could work from home on days when she was feeling particularly stressed or ill and that she required to have her request approved by Ms Duncan or one of the other managers. We also accepted Ms Duncan’s evidence that on occasions the claimant would phone in in the morning to say that she would be working from home on that day. At the end of the day the Tribunal accepted Mr Dey’s evidence that he had at no time told the claimant that she was not permitted to work from home certainly from the time when this adjustment was agreed in early 2019. The Tribunal also noted that the claimant accepted that whilst at the Tribunal hearing she was saying that she ought to have had a fixed arrangement to work from home on set days per week she had never at any point previously raised this with the respondent. Even at the stage of her appeal against dismissal she never raised the issue that she was unhappy with the way the working from home adjustment had been implemented. In her evidence the claimant accepted that she could have asked to work from home at any point and gave no real explanation as to why she couldn’t have done this more often.
Issues
[51]The claimant claimed that she was unfairly dismissed. She also claimed that she had been unlawfully discriminated against; the claims made being a claim of discrimination arising from disability in terms of section 15 of the Equality Act and a claim of a failure to comply with a duty to make reasonable adjustments in terms of section 20 and 21 of the Equality Act. Both parties made full submissions but rather than attempt to summarise them here these submissions will be referred to where appropriate in the discussion below. Discussion and decision Unfair dismissal[52]The right not to be unfairly dismissed is contained in the Employment Rights Act 1996. Section 98 states “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” In this case it was the respondent’s position that the reason for the dismissal was related to the capability of the claimant which is a potentially fair reason for dismissal falling within section 98(2)(a). The Tribunal accepted that that was the reason for the claimant’s dismissal. The respondent’s decision makers in the person of Martin Dey and Ms Leuchars formed the view that, looking forward, the claimant would not be capable of giving sufficient regular attendance so as to allow her to carry out the role for which she was employed. Having established that the claimant was dismissed for a potentially fair reason the Tribunal then required to consider the terms of section 98(4) which states “(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[53]The respondent’s representative noted that although the claimant was absent for a number of weeks prior to her dismissal the decision to dismiss was not based on that final absence but on the whole history of the claimant’s employment. The respondent’s representative referred to the case of Lynock v Cereal Packaging Ltd [1988] ICR 670. In that case it was suggested that an employer had to have regard to the whole history of employment and take into account a range of factors including the nature of the illness and the likelihood of its recurrence, the length of the absences compared with the intervals of good health, the employer’s need for that particular employee, the impact of the absences on the rest of the workforce and the extent to which the employee was made aware of their position. In this case the respondent’s representative referred to the lengthy process which had gone on in respect of managing the claimant’s absences. In this connection it is as well to state that in determining the question of whether or not the claimant was unfairly dismissed and indeed the question of whether or not the claimant was unlawfully discriminated against the Tribunal requires to apply the law of the land. The Tribunal is only indirectly concerned with whether or not the respondent have properly applied their agreed internal processes. The question of the internal processes is relevant since both claims involve the Tribunal determining the issue of reasonableness and it is trite law that a reasonable employer will follow their own internally agreed processes. Albeit, there is also authority (R Kelly v Royal Mail [2019] EAT 26) for the proposition that it will be unusual if the respondent’s conduct in line with the policy agreed with the trade union is later discovered to be unfair. What we would reiterate however is that it is entirely possible that the Tribunal could make a finding that an employer has followed their own internal processes but that the dismissal is still unfair and/or an act of discrimination.[54]In this case we were satisfied that the respondent had indeed followed their own processes to the letter. The claimant had been given a final opportunity to improve at the beginning of 2019. This followed a period over a number of years where the claimant’s attendance had fallen far short of what the respondent required. The Tribunal considered that the claimant had been left in no doubt that if she failed to meet the employer’s standard then she was very likely to be dismissed. The Tribunal noted that the claimant had applied for another job immediately prior to dismissal and indeed the fact that the claimant seemed to be reluctant to engage with Ms Duncan during her final absence tended to demonstrate that the claimant was well aware of the position.[55]The Tribunal noted that the claimant had been referred to PAM OH on various occasions and that the adjustments which had been recommended had been made. The Tribunal noted and accepted Ms Duncan’s evidence that over the years she had made numerous attempts to assist the claimant to improve her attendance including working from home.[56]With regard to the nature of the illness the respondent had obtained a report from occupational health in September which noted that the claimant was currently said to be unfit for work but might be fit for work within a period of a few weeks. The occupational health report set out the background to the claimant’s current health situation. With regard to the likelihood of recurrence and the length of the absences when compared to periods of good health the respondent were entitled to take into account that this was the second lengthy period of absence within 12 months and that there had been other absences in addition to this. The claimant’s whole absence record was lodged at p76-77.[57]The respondent’s representative was also critical of the claimant’s engagement with the respondent during her final period of illness. The Tribunal accepted that it was clear that the claimant was avoiding interactions with Ms Duncan. That having been said the Tribunal had considerable sympathy for the position in which the claimant found herself.[58]The situation here was that the claimant was ill through no fault of her own. It was clear from her evidence that she valued her job and over a period of years had been working hard to try to keep her job despite suffering ill health. Unfortunately, despite the efforts of the claimant and the efforts of the respondent the fact of the matter is that by September 2019 the claimant was again off for a lengthy period. The Tribunal accepted the claimant’s evidence that she was suffering severely from anxiety. No doubt the imminent prospect of losing her employment did not assist. In those circumstances given that she is ill the Tribunal saw her failure to engage with Ms Duncan as a symptom of that illness and not at all as wilful behaviour on her part.[59]With regard to the respondent’s need for the claimant and the impact of the absences on the rest of the workforce the Tribunal accepted the clear evidence of Mr Dey that the claimant’s role was one which made irregular unplanned absences extremely difficult to cope with. We noted the point made by the claimant that the claimant’s specific role had not been replaced but we accepted Ms Leuchars’ explanation which was that often resourcing was dealt with in a way which was different from simply replacing like for like. Our understanding of the matter was that whilst the claimant’s role may not have been directly replaced the work she was doing was reallocated amongst others and that somewhere in the organisation this new allocation was balanced out either by hiring someone new in a different role or re-allocating tasks. At the end of the day the Tribunal accepted the point made by Mr Dey that in the role the claimant carried out it was important that the respondent be able to plan resourcing in advance and allocate jobs.[60]At the end of the day I considered that the question which required to be looked at was indeed the one mentioned both by Mr Dey and Ms Leuchars. They required to look at the claimant’s absence record in the round. The question was whether there was likely to be a recurrence and they both concluded that there almost certainly would continue to be recurrences of the extremely unsatisfactory level of attendance which had occurred over the past number of years. The Tribunal accepted their analysis. At the end of the day there was really nothing to suggest that the claimant’s attendance was going to improve to a level where it would be acceptable to the respondent.[61]The Tribunal considered the points made by the claimant. A principal point made by the claimant was that there were a couple of new matters which were raised in the latest occupational health report and the respondent ought to have waited longer to see if these had any effect. The first of these was that the claimant had started on new medication for her anxiety and depression. The occupational health report notes that she is not yet receiving any clinical benefits from this but hopes that it will kick in within the next three to four weeks and that she would benefit from this.[62]In addition to this, the claimant was referred to counselling. The claimant was dismissed prior to the first appointment for her counselling and the claimant’s position was that counselling ought to have been given a chance of working before the respondent decided to dismiss. The Tribunal agreed with the respondent’s representative that at the end of the day both of these points were not particularly relevant to the decision which the decision makers required to make.[63]This was not a case where an employee was on long term sick leave and the decision was whether to dismiss them or to let things wait for a few more weeks to see if their health would improve to the extent that they could return to work. The problem in this case was that whilst the occupational health report was quite clear that they expected the claimant would become fit enough to work within a period of two to four weeks what the decision makers were looking at was the long term prognosis. The long term prognosis based on the whole history of the claimant’s absences over the previous four years was that whilst the claimant would return after this absence there would be further additional absences going forward. The respondent’s decision makers looked at the adjustments which had been made. Both described Ms Duncan as being an extremely supportive manager. The claimant had a vast number of supports in place yet despite this she was still unable to provide regular attendance. There appeared to be nothing in the offing which would be likely to change this. At the end of the day whilst the Tribunal had considerable sympathy for the claimant the Tribunal considered that the decision to dismiss was well within the range of reasonable responses. It was carried out in line with the policy, The claimant was well aware of the attendance target she had to meet and failed to do so. At the end of the day we considered that the dismissal was fair in terms of the Employment Rights Act. Equality Act section 15[64]Section 15 of the Equality Act 2010 states “A person(a) (A) discriminates against a disabled person(b) (B) if - (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”[65]In this case the respondent accepted that the claimant was disabled. The respondent’s understanding was that the PCP was the respondent’s policy on promotion health and wellbeing lodged at page 149. In addition to this we accepted the claimant’s point that the respondent had also applied a PCP of requiring the claimant to attend work on a regular basis. In any event, the Tribunal were entirely satisfied that the terms of section 15(1)(a) were met. The claimant was dismissed because of her absence record over a period of years. It was clear that most of this absence was related to the claimant’s disability. It is therefore clear that the claimant was treated unfavourably because of something arising from her disability. The issue in this case was whether or not dismissing the claimant was a proportionate means of achieving a legitimate aim.[66]We were referred by the respondent to the well-known recent case of O’Brien v Bolton St Catherine’s Academy [2017] EWCA civ 145 which indicated that although a Tribunal weighing up proportionality is carrying out an entirely different legal test from the test for unfair dismissal it is generally desirable from the point of view of consistency that the end result of the two tests is similar. In that case it was suggested that where the Tribunal has decided that the dismissal on grounds of capability was fair then it is likely that the test of proportionality will also be met.[67]Although the Tribunal considered this to be good law we also considered that we required to carefully examine the issue of proportionality in this case since there are subtle differences. In carrying out our task under section 15 the Tribunal is not concerned with the state of mind of the individual decision makers. The Tribunal was looking at the facts objectively and deciding whether on these facts the disadvantageous treatment of the claimant on grounds of her disability was justified.[68]With regard to the aim of the treatment the Tribunal accepted that the respondent have a legitimate aim in ensuring that their employees attend regularly. We accepted the evidence of the respondent’s witnesses that this is particularly the case given the role which the claimant carried out. We accepted the general point made by the respondent that this means that the Tribunal is entitled to look at evidence of the claimant’s health post dismissal. The respondent’s representative pointed us to the impact statement which was lodged and had been prepared a few months prior to the date of the Tribunal. Although the Tribunal accepted that this was evidence we could take into account the Tribunal placed little weight on this evidence since we accepted the point made by the claimant that the claimant’s dismissal had been a traumatic event for her and had itself led to a deterioration in her health. We did accept however that even leaving this aside, it was quite clear to us that if the claimant had not been dismissed then it was extremely unlikely that she would be able to achieve the level of attendance required by the respondent going forward.[69]The claimant’s representative indicated that there were alternatives to dismissal in that the respondent could have waited for the result of the claimant’s change in medication and waited to see whether the effects of counselling would have helped. The respondent could also have redeployed the claimant. The Tribunal did not accept this. The position was that the respondent had been doing everything they could to try to get the claimant to attend regularly over a period of years. They had carried out all the adjustments which were suggested. Ms Duncan had set up additional supervision for the claimant. She allowed the claimant to work from home. She provided the claimant with templates and assistance with timetabling her cases. Despite all that the claimant was still unable to achieve a satisfactory level of attendance. Redeployment, even if an additional post was available as a support worker, would not have avoided dismissal. The claimant would have still required to attend work and the tribunal entirely agreed with the analysis of Mr Dey and Ms Leuchars in this respect. In those circumstances, the Tribunal’s view was that the claimant’s dismissal was justified. It was proportionate in that there was really nothing else that the respondent could do which would have the effect of getting the claimant to attend regularly. Even if the claimant’s new medication had worked and the claimant had returned to work the Tribunal agreed with the respondent’s decision makers that further absences were extremely likely. The claimant had been offered counselling and not taken it because she was already receiving assistance elsewhere the Tribunal could see nothing to suggest that waiting a little longer would in any way have achieved the respondent’s legitimate aim. The claim under section 15 therefore fails.[70]With regard to the claim of failure to make reasonable adjustments the claimant’s position was that the policy should have been adjusted to give the claimant more time to return to work on her new medication. The claimant’s position was that giving the claimant more time by extending the final opportunity to improve would have removed the disadvantage suffered by the claimant in being dismissed. The Tribunal’s position was that this would not have been a reasonable adjustment essentially for the reasons given above. The respondent had a need for the claimant to attend work regularly. It was abundantly clear by the time of dismissal that this was something which the claimant could not do. The Tribunal’s view was that whilst it was permitted in terms of the policy to extend the period of final review this was not something which it was reasonable for the employer to do. In any event we were not at all convinced that this adjustment would have had the effect of removing the disadvantage suffered by the claimant other than temporarily. Clearly if the claimant was not dismissed when she was, she would have remained in work for another period of time however in the view of the Tribunal her inability to regularly attend would have manifested itself again and the claimant would have again been dismissed.[71]Insofar as it was suggested that offering counselling or redeployment would have been reasonable adjustments the tribunal rejected this argument. For the reasons set out above neither of them would have avoided the disadvantage. The tribunal did not accept that redeployment to a support worker role would have caused the claimant’s attendance to improve to an acceptable level, nor did we accept that counselling would have done so. We agreed with the analysis of the respondent’s decisionmakers in this respect.[72]For the above reasons both the claim of unfair dismissal and the claim under the Equality Act fails. The claims are dismissed.