Ms J Crampshee v Dignity Funerals Ltd: 4102767/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102767/2019Venue AberdeenHearing 21, 22, 24 & 25 August, 8, 23 & 27 November 2023
Between
Ms J CrampsheeClaimantDignity Funerals LimitedRespondent
Before
Employment Judge N M HosieDate 20 February 2024
JUDGMENT
[1]the respondent unlawfully discriminated against the claimant, in respect of her disability, in terms of ss.15 and 20 of the Equality Act 2010; E.T. Z4 (WR)[2]the claimant was unfairly dismissed by the respondent; and[3]a Remedy Hearing should now be fixed.
REASONS
[1]Ms Janie Crampshee brought complaints of unfair dismissal (contrary to s.98(4) of the Employment Rights Act 1996); and disability discrimination (discrimination arising from disability, in terms of s.15 of the Equality Act 2010, being her dismissal; and a failure to make reasonable adjustments, in terms of s.20). The respondent admitted the dismissal but claimed that the reason was capability and that it was fair. The claimant was absent from work for a considerable period of time following a cancer diagnosis. The respondent accepted that she was a disabled person, in terms of the Equality Act 2010, but otherwise her discrimination complaints were denied in their entirety. In short, the principal issues between the parties were whether the dismissal was premature, unfair and discriminatory; and whether the claimant could have continued her employment with the respondent, had reasonable adjustments been put in place to enable her to do so.
The evidence
[2]On behalf of the respondent, we heard evidence from:-• Richard Cumming, Trainee Manager at the respondent’s Branch in Aberdeen where the claimant worked.• Annette MacDonald, the respondent’s Business Manager, at the relevant time.• Andrew Beveridge, the respondent’s Area Manager, at the relevant time, who took the decision to dismiss the claimant.• Gerald (“Gerry”) Boyle, the respondent’s Regional Manager, who heard the claimant’s appeal against her dismissal. The Tribunal then heard evidence from the claimant and, on her behalf, from her partner, Steven McCloud.[3]A Joint Bundle of documentary productions was also submitted (“P”), along with an agreed Chronology.[4]Having heard the evidence, parties were directed to make written submissions. On receipt of these submissions, the Tribunal reconvened, on its own, on 23 and 27 November 2023 to consider and determine the issues. Respondent’s Absence Management Policy and Procedure[5]This was included with the documentary productions (P.75-91). Funeral Director Job Description[6]This was included with the documentary productions (P362-365). Observations on the evidence[7]The claimant gave her evidence in a measured, consistent and convincing manner. The Tribunal was of the unanimous view that she presented as credible and reliable. She was an impressive witness. Her partner, Steven McCloud’s evidence was also credible and reliable. His evidence was consistent with and corroborated, to a limited extent, the claimant’s evidence.[8]While we were satisfied that the respondent’s witnesses were truthful, they were hampered by the lack of supporting documentary evidence and comprehensive, contemporaneous, notes. Understandably, they had difficulty recalling events which had occurred some four or five years previously.[9]Further, Richard Cumming, the respondent’s immediate Line Manager, was a Trainee Branch Manager at the time and had no experience of managing a disabled employee’s return to work. Much to the Tribunal’s surprise, there was no reference in any of the respondent’s documentation to the fact that the respondent was dealing with a disabled person, although there was some recognition of an obligation to make “reasonable adjustments”.[10]We are also bound to say that we were rather surprised that Steve Williams, the respondent’s Regional HR Advisor at the time, did not give evidence. He had a pivotal role in the case and attended, and was actively involved in, the formal meetings that led to the claimant’s dismissal. While we understand that he has now retired, there was no apparent impediment to him being called to give evidence, under a witness order, if required.
The facts
[11]Having heard the evidence and considered the documentary productions, we were able to make the following findings in fact. The claimant commenced her employment with Aberdeen Funeral Directors (“AFD”) on 25 August 201 4, as a Trainee Funeral Director. Her contract of employment was one of the documentary productions (P.405-407). She qualified as a Funeral Director in 2015.[12]The claimant was diagnosed with cancer on 26 January 2016. She then commenced a period of long-term absence due to that diagnosis, treatment and thereafter recovery.[13]On 3 March 2017, while the claimant was still signed off, the respondent acquired AFD. This was a so-called “TUPE transfer”. The respondent is a national firm of Funeral Directors, operating in the UK. It has approximately 4,500 employees. It is one of the UK’s largest providers of funeral services and pre-paid funeral plans. It has over 800 funeral locations and operates over 45 crematoria in the UK.[14]Although the respondent acquired the business of AFD in March 2017, it only become aware in September 2017 that the claimant was an employee of AFD, and one of the transferring employees to its employment, in terms TUPE.[15]On discovering that the claimant was an employee, Annette MacDonald, the respondent’s then Business Leader, and Gordon McGowan, its Area Manager, paid a “welfare visit” to the claimant at home, on 21 September 2017, when they apologised for not contacting her (P.104-105).[16]On 6 December 2017, the claimant visited the Aberdeen Branch to deliver Christmas cards. Whilst there, she had a discussion with Richard Cumming, a Trainee Manager at the Branch, at the time, about returning to work. The claimant said that she would speak to her Oncology Nurse and Oncologist about returning, which she did. She then telephoned Mr Cumming and advised him that she would be able to return to work provided it was a phased return, on “light duties”. Mr Cumming advised her that he would, “speak with HR', as he hadn’t dealt with anything like that before.[17]The claimant did not hear further from Mr Cumming, but when she visited the Branch again, she spoke with him and it was agreed that she would return to work on 29 January 2018, initially for 3 days per week, working 3 hours per shift. There was no discussion about the timescale of this. Nor was a Occupational Health Report obtained. As the claimant put it when she gave evidence, “it was just a case of seeing how it went”. A job was created for her. It was agreed that she would, “help out in the office”, not be required to do any lifting and that she would not be “on-call”. The respondent operates an “on-call” rota whereby Funeral Directors can be “called out” and required to attend for work at any time, day or night. This would normally involve a Funeral Director being on call one week in every 5. There was a requirement, in terms of para. 7 of their contract of employment, that they could be required “one week in three” (P.406).[18]On 6 March 2018, the claimant obtained a letter from her Oncology Nurse about her return to work which subsequently she provided to the respondent (P.420-421). By this time, the claimant had increased her weekly hours of work from 9 to 15.[19]On 8 March, as requested by her Oncology Nurse, the claimant suggested to Annette MacDonald that she be referred to Occupational Health. That referral was made. Occupational Health Report dated 12 April 2018[20]The report confirmed that the claimant was disabled for the purposes of the Equality Act 2010 and that she was fit to return to work, provided certain adjustments were made, including an extended phased return on amended duties (P.121-123). The report recorded that although the claimant was experiencing tiredness and shortness of breath, this was expected to improve and she was making “steady progress”. The report also recorded that Steven Williams, the respondent’s Regional HR Advisor, had indicated that the claimant’s phased return, “ is causing an operational and financial problem for the business”. The respondent did not discuss the report with the claimant. Claimant signed off work due to sickness.[21]On 17 May 2018, the claimant again commenced a period of long-term absence. She was signed off as sick by her G.P. However, the reason for her being signed off was not related to her cancer, but rather an acute reaction to stress. This related to a dispute about wages and the way the claimant perceived she had been treated by the respondent in relation to her return to work. When asked why she had become unwell the claimant said, “no one could explain why I wasn’t getting my proper wage. I never got the same wage twice. One month / only got £98". The claimant continued to be signed off work until her dismissal on 29 October 2018. The wages issue was not resolved for a number of months. Second Occupational Health Report[22]The respondent received a second Occupational Health Report, dated 13 June 2018 (P.115-117). The report confirmed that the “trigger” for her recent absence, due to stress, was “a management issue” (P.116); that she was disabled for the purposes of the Equality Act; and that she was fit for work with certain adjustments (including her hours being restricted to 25 per week and that she avoided shift work - i.e., the on-call rota). Claimant’s e-mail to Gerry Boyle[23]On 21 June 2018, the claimant sent an e-mail to Mr Boyle, the respondent’s Regional Manager for Scotland and Northern Ireland. It was in the following terms (.P.240):- “Dear Mr Boyle I am writing to you to ask for your help. I am an employee of Dignity in The Aberdeen Funeral Home, Mounthooly. We were taken over by Dignity in 201 7. / returned to work in January 2018 after being off long-term sick for 2 years (I was diagnosed with cancer). And to be honest and truthful it hasn’t gone very well. There was no phased return plan put in place, I requested for an occupational health assessment myself after a review with my oncology. I’ve had around 3K in money, plus taken off my wages, with no explanation to (sic) why. / have made several phone calls to Steven Williams at HR, and left messages but alas no callbacks. Therefore I contacted ACAS and Citizens Advice who sent Mr Williams 2 letters, with no reply to the second. So I now find myself on a last chance, to seek help from yourself I am at present off work due to stress of this matter, I look forward to your reply. Thank you.” Formal Welfare Meeting on 12 July 2018[24]By letter dated 28 June 2018 (P.241/242), the claimant was invited to attend a Formal Welfare Meeting on 12 July. The purpose of the meeting was to discuss the second Occupational Health Report dated 13 June (P.115-117). This was the first formal meeting since the claimant commenced her period of absence on 17 May 2018, and the first formal meeting since the respondent acquired AFD on 3 March 2017. The meeting was conducted by Steve Williams, HR Manager, and Andrew Beveridge, Area Manager. Mr Williams took the lead at the meeting and did most of the talking. His handwritten note was produced (P.243-246). Formal Meeting on 25 July 2018[25]By letter dated 20 July (P.247/248), the claimant was invited to attend a “Formal Meeting” on 25 July. The purpose of the meeting was, “to follow up on discussions that took place on 12 July 2018 regarding your payslips and your current job role, as well as to discuss the way forward.” No written record of that meeting was produced.[26]The Occupational Health Reports had advised that the claimant was fit to return to work, provided suitable adjustments were put in place. The claimant was continually pressed by the respondent to give an “end date”: when there would no longer be a requirement for reasonable adjustments. Claimant’s request for reasonable adjustments[27]As requested by Steve Williams, on 25 July the claimant sent an e-mail to him setting out a request for reasonable adjustments. Her e-mail was in the following terms (P.250):- “Regarding our meeting today, I am putting in writing my request for reasonable adjustments to my role as a Funeral Director on my return to work after illness. 1 - Not to work on-call Rota. I am unable to do this due to fatigue following Chemotherapy and Radiotherapy. 2- No heavy lifting or lifting of any height. This is due to weakness in arms after having Lymph Nodes and Tumors removed and weakness from Chemotherapy. I look forward to your reply within 7 days.”[28]Although the claimant gave no “time frame” in her e-mail, that was because she did not know how long it would take. However, she had been making progress and, as she put it, “getting better”.[29]On 27 July, Mr Williams acknowledged the request (P.251). He intimated that the claimant’s permission to contact her G.P. would be sought, and her request would then be considered.[30]On 7 August 2018, the claimant signed a mandate consenting to an Occupational Health Report from her “own G.P. and/or Specialist (P.133/134). However, the claimant never saw such a report.[31]On 5 September 2018, Mr Williams directed that certain steps be taken in relation to the claimant’s wages dispute, specifically that she be paid her full pay for the first four weeks of her phased return to work in February 2018 (P.252). Third Occupational Health Report[32]A further Occupational Health Report was obtained by the respondent on 5 September 2018 (P.118). The following are excerpts from the Report:- “Specific Questions 1. Likely date of return to work? My colleague’s professional opinion is that Mrs Crampshee is fit to work with adjustments. It was advised that she can return to work on a trial or phased return. She can start with 5 hours per day, which can gradually increase by 1 hour per day fora week, and continue to do so until she has resumed her normal working hours. It was also recommended that she should be offered assistance with any heavy manual-handling activities, as her physical resilience is low. My colleague also suggested that at the end of the phased return she could be put on a trial of “on-call duties” as a floater. It is understood that this minimises the frequency of on-call duties. It is also considered a reasonable adjustment for her to “sit-in” during funeral arrangement, to build her resilience. 2. Do any temporary or permanentrestrictions apply, and if so, for how long? As already indicated in this report, she would benefit from a restriction of physical, manual-handling jobs. I would recommend a manual-handling risk assessment is undertaken, based on finding, further decision can be made. Is the case covered by disability legislation, and if so, what adjustments should be considered? It is my and my colleague’s opinion that her medical condition is likely to be covered under the disability legislation of the Equality Act 2010, although the final decision is legal rather than medical. Management may take this into consideration while making the reasonable adjustment, flexible working hours and sickness targets for Mrs Crampshee. 3. Is the employee still likely to render reliable service and attendance into the future? The best predictor of future attendance is the employee’s past work record, especially over the last two to three years, which can be taken as a benchmark. Mrs Crampshee has a physical condition which is treated but 'which has led to her resilience being comprised. She also has unresolved work-related issues, and both of these can impact on her attendance in the future. 4. Does the employee have a health condition that could lead to impaired performance? If so, in what areas and for how long is it likely to continue? She suffers from stress and anxiety. If the pay dispute and working hours can be resolved, it is expected that it will not impact on her performance. If these issues remain unresolved it could impact her performance . 5. Is the employee fit to continue in their current post? It is my and my colleague’s opinion that with adjustments in the workplace, she is fit to continue in her current post. 6. Can the employee participate in the out-off-hours on-call rota? My colleague has recommended that to build her confidence and resilience, on her phased return she can trial “on-call duties” as a floater, as this will minimise the frequency of “on-call duties”. It will increase her confidence and resilience, and hopefully will help in her further reintegration in the workforce. The level of support provided for sickness absence is a management decision, and how much can be tolerated can be guided by the Company Policies regarding this matter.” Formal Capability Meeting on 3 October 2018[33]On 27 September, the respondent wrote to the claimant to invite her to attend a “Formal Meeting” on 3 October 2018 (P.259). The claimant had not heard further from the claimant since the previous meeting on 25 July.[34]Once again, Mr Williams took the lead at the meeting and did most of the talking. Andrew Beveridge was also in attendance. Mr Williams’ handwritten note of the meeting was produced (P.261-263). The note is headed, for the first time, “Formal Capability Review Meeting Form”.[35]The claimant explained at the meeting that she wanted to, “build up to full time hours” as she was, “getting better all the time” (P.261).[36]However, the respondent’s position was that “on-call” was still a “sticking point”. Mr Beveridge, in particular, was greatly concerned as to how the claimant’s Funeral Director colleagues would react if she was not on the rota as this would mean that they would be required to be on-call more often. He also had a particular concern that the adjustments proposed by Occupational Health and the claimant did not have a fixed period. He said in evidence that this was critical, that he would have been happy, “to go over four weeks and perhaps several months, but I needed an end date”.[37]The respondent presented the claimant with three options at the meeting: a full time Funeral Director role; employment as a “Funeral Service Arranger/Administrator” on a four-week trial with a salary of £15,925.35 per annum; termination of employment on the ground of capability (P.263).[38]So far as the offer of alternative employment was concerned, this was at a io salary some £9,000 less than the claimant’s salary as a Funeral Director. She also enquired why there would be a four-week trial, when she had been, and still was, employed as a Funeral Director, only to be advised that, “everybody gets put on a trial”; and when she asked what would happen at the end of the trial if unsatisfactory or not to her liking, she was told she could apply for her job as a Funeral Director.[39]On 12 October, the claimant sent an e-mail to Mr Williams with reference to the “Capability Meeting on 3 October”. Her e-mail was in the following terms (P.264):- “Regarding the ability to work with reasonable adjustments. I do not accept that the company cannot accommodate the adjustment for me returning as a Funeral Director. I know this can be implemented and is in place within the funeral business that Dignity run. This adjustment can be 25 used when necessary, so why can it not be used to support my return to my position within the company? I also requested as a reasonable adjustment of no heavy lifting, this wasn’t mentioned in my capability meeting. This is fundamental in my Funeral Director role as is on-call duties?[40]The reference to the respondent being able to “accommodate the adjustment” was because the claimant had heard that another employee at the respondent’s “Gordon & Watson Branch” in Aberdeen, had been taken off “on-call”, as he was undergoing chemotherapy.[41]On 1 2 October, the claimant also sent an e-mail to Mr Williams declining the offer of alternative employment as it was “not suitable” (P.265), The claimant explained that she “could not live on the reduced salary” and that she was unhappy with the proposed trial as if it did not work out, as she put it, she was “gone”.[42]The claimant continued to be signed off. There was included with the productions a “fit note” dated 16 October 2018 which gave as the reason “acute reaction to stress” (P.266). Invite to further Capability Meeting[43]On 18 October, the respondent sent a letter to the claimant inviting her to a Capability Meeting on 23 October (P.267/268). Unlike the letter of 27 September, this letter gave notice that her employment might be terminated. The meeting was re-arranged for 29 October (P.269/270). Capability Meeting on 29 October 2018[44]The meeting was very brief. Mr Williams’ hand-written note of the meeting was produced (P 271-276). There was little discussion other than the claimant being asked if there had been any change in circumstances since the previous meeting. When she said that there had not been, she was advised that a decision had been made to terminate her employment, on the ground of capability. Dismissal letter[45]The following are excerpts from the letter which Mr Beveridge sent to the claimant on 31 October 2018, confirming the termination of her employment (P.277/278):- “ You have agreed that you are unwilling/unable to fulfil your full duties as a Funeral Director, namely carrying out on-call and transfers. You have agreed that arranging funerals is something that you may be able to undertake in the future with the necessary support to assist this, however you are still unsure whether you would be able to undertake full time work in the future. As discussed, the Company is unable to implement the suggested workplace adjustments highlighted in the Occupational Health Report, dated 12 April, 13 June and 5 September 2018, as this is not practicable and would have a detrimental impact on the performance of the Branch. Your e-mail dated 12 October 2018 disputes this and you mention that the Company has this in place within the funeral business. I can confirm that none of the Branches in my area operate without Funeral Directors performing on-call and transfer duties. At the formal capability meeting held on 3 October 2018, I discussed an alternative role with you. The role identified was as a Funeral Service Arranger/Administrator working 25 hours per week and alternative weekends. This role was offered on a four week trial basis. We also discussed that there would be no barrier in the future to you applying for a Funeral Director role should your health allow. However I note in your e-mail dated 12 October 2018 that you have declined the offer of the Funeral Service Arranger role as it is not suitable for you. I have taken into consideration all the matters covered during our meetings before reaching a decision in this matter, and regrettably I have concluded that your employment with the Company should now be terminated with effect from 29 October 2018 on the grounds of capability. In accordance with your contract of employment, your notice period is four weeks and we will pay your notice although you will not be required to attend work during this period. Any balance of untaken annual leave will be paid to you in your final salary and your P45 will be issued to you shortly.” Appeal[46]On 7 November 2018, the claimant wrote to the respondent to appeal against the decision to terminate her employment (P.404). The following are excerpts from her letter:- “I made a request for reasonable adjustments to enable me to return to Funeral Directors duties but I was told they could not because they were part of Funeral Director role. No on call - this is workable because there would be cover as colleagues require overtime. I would be the one to lose out on supplement payments - i.e. on call payment per removals. I would be on basic wage. The other dispute I am appealing is the job offer I was made in the ‘capability dismissal’ letter dated 31/10/18 of Funeral Service Arranger/Administrator 25 hours a week, with alternate weekend. This is not what was offered to me, I would have taken this job role.” Appeal Meeting on 28 December 2018[47]The appeal was conducted by Gerry Boyle. The respondent’s written record of that meeting was produced. It was not disputed that the record was reasonably accurate (P.279-300). Mr Boyle said in evidence that the appeal was not a “reconsideration” which we took to mean it was not a rehearing. He said, “it was to establish whether there were any additional facts...anything else Janie wished to bring which was relevant”. Appeal outcome[48]On 4 February 2019, Mr Boyle wrote to the claimant to advise her that her appeal had been unsuccessful and that he was upholding the decision to terminate her employment (P.301-303). The following are excerpts from his letter:- ‘7 have decided that your Termination of Employment on the grounds of Capability should stand and that your Appeal against that termination has been unsuccessful for the following reasons:• You were employed in the capacity of Trainee Funeral Director/Driver• Fundamental to the fulfilment of this role is your ability participate (sic) in the company’s “on-call” rota; to arrange and conduct funerals and to be physically able to lift deceased persons in the course of your employment with us. » Clearly, through no fault of your own, your illness has left you incapable of fulfilling the role in which you were employed and despite our willingness to make some adjustments in order to facilitate your return to work, the adjustments were not workable in the longer term, especially where there is no way of assessing how long these adjustments might be necessary and would, ultimately impact upon the operational effectiveness of the business.• That despite a phased return to work, Occupational Health Assessments and Capability Meetings, there does not seem to be any point in the foreseeable future where it is likely that you will be able to fulfil these duties.• Alternative employment role, specifically, that of Funeral Service Arranger/Administrator was offered to you (Welfare Meeting 3 October, £15925.35) which you refused on the basis that you did not feel it was suitable for you (e-mail 12 October). In reaching this decision, I have also taken account of our on-going duty of care to you in expecting you to potentially engage in activities which could harm your health further, e.g. lifting and on-call participation and our duty of care to other employees in AFD who would undoubtedly have increased obligations placed on them because of your incapacity to fulfill all aspects of your role. The decision to terminate your employment was reached only on an assessment of your capability to fulfill your contracted role; it was not, as you suggested during the meeting, based on the company’s estimation of your financial cost to the business. The business still requires to employ a funeral director to fulfill the duties previously carried out by you. I attach a further spreadsheet from HR in explanation of all of the deductions made; what you were paid; what you should have been paid and any differentials. There was, unfortunately, some confusion during the course of your employment with us in which you were wrongly paid, at some stages, full Company Sick Pay (May & June 2018) to which you were not entitled and this has resulted in an overpayment of wages to you. At the date of your termination, this gross overpayment of wages amounted to £2937.09. If we deduct from that figure, accrued holiday pay owed to you at the date of your termination amounting to £1730.00, the overpayment to you amounts to £1207.09; Dignity are not seeking reimbursement of this amount from you. During your meeting you said that you had not received one month’s pay in lieu of notice which we agreed to pay you in our termination later; I will now arrange to have this paid to you in full, notwithstanding the earlier overpayment to you of £1207.09. It was clear from the Appeal Meeting that, even if the decision to terminate your employment was reversed, you would not return to work for Dignity because of the way you felt you had been treated. I wholeheartedly refute any suggestion that we tried to do anything but the right thing by you. This is amply evidenced, in fact, by a goodwill payment of 15 months annual leave monies which we were not contractually obliged to pay you; the not seeking of the reimbursement of gross overpayment of wages made to you and, finally, our payment to you of a full month’s salary, in lieu of notice, despite the earlier overpayment. I appreciate that you will be disappointed by this decision but trust you will understand our reasons for it. This decision is consistent with the way in which our Dignity employees, in similar circumstances, have been treated in the past. Your right to Appeal your termination of employment on the grounds of 5 capability has been exercised and my decision is final. In closing, I thank you for taking the time to meet with me and I sincerely hope that your health continues to improve.” io Respondent’s submissions[49]The respondent’s solicitor made written submissions which are referred to for their terms. The following is a brief summary.[50]It was submitted that the respondent had established that “ill-health”, namely capability, was the reason for the claimant’s dismissal. She was no longer capable of, “doing what she was employed to do”.[51]In support of her submissions in this regard, she referred to the following cases:- Kumar v. DHL Services Ltd EAT0117/17; McAdie v. Royal Bank of Scotland [2007] EWCA Civ 806; Merseyside v. Taylor [1975] ICR 185.[52]The respondent had Occupational Health (“OH") and Oncology Reports to the effect that, “the claimant’s health could continue to pose issue affecting her ability to carry out her job for two years or more” (P.126). She could only work up to 25 hours a week with no heavy lifting or on-call work and these duties were fundamental to her job as a Funeral Director.[53]Nor was there any indication from either Oncology or Occupational Health that the claimant would ever be able to return to her full contractual role and, “while the respondent accommodated the claimant’s adjustments, explored alternative options and reviewed the avenues available to the parties while the claimant was absent, they were not able to wait indefinitely." 54. in support of her submissions in this regard, the respondent’s solicitor referred to Dunn v. Secretary of State for Justice [2019] IRLR 298.[55]She submitted that the respondent did not dismiss the claimant because she requested adjustments to her post. ult is the respondent’s position that a nondisabled person in the same set of circumstances would have also been dismissed and so the claimant’s dismissal cannot be said to be unfavourable treatment.... The claimant was - as Gerry Boyle explained in the appeal outcome letter (P.283) - through no fault of her own unable to continue carrying out the role of a Funeral Director."[56]She also submitted that the claimant’s pay issues were satisfactorily resolved.[57]In the alternative, it was submitted that were the Tribunal to find that the claimant’s dismissal was discrimination arising from her disability, that the dismissal was justified: it was, “a proportionate means of achieving a legitimate aim” namely "the need to have a workforce capable of carrying out their role and acting safely while doing so” ...... "they could not continue to employ her indefinitely without some indication that she was capable of carrying out her role or was open to the suitable alternatives offered to her".[58]In support of her submissions in this regard, the respondents solicitor referred to the following cases: - Salford NHS Primary Care Trust v. Smith EAT 0507/10 Needham v. Silverlink Train Service Ltd ET Case No 1202119/07 Romec Ltd v. Rudham UKEAT/0069/07[69]She referred to the provision, criterion or practice (“the PCP”) relied upon by the claimant: “a requirement for the claimant to lift heavy weights, lift at height and work on-call rota and no variation to this was permitted” (P.20). 60. She addressed the contention by the claimant’s contention that various adjustments should have been made (P.20/21): u• To provide assistance to the claimant for any work that included lifting heavy weights or lifting at height;• To not require the claimant to do this work involved lifting heavy weights or at a height or work on call;• Alternatively, to offer the claimant an alternative less demanding role that was available.” “Role during phased return” 61. It was submitted that the respondent did implement the adjustments relating to lifting heavy weights and lifting at height as part of her phased return from January 2018. The claimant returned to the role of Funeral Director, “minus the two core components of the role that she was not fit to do”: heavy lifting and work on-call, “The claimant returned to work as a Funeral Director with amended duties, not in a different administrative role” “Funeral Director - Adjustments made during phased return” 62. It was submitted that, “the claimant accepted in her evidence that the adjustments of a phased return, not working on call and no lifting were in place between January and May 2018”. 63. While the respondent did not instruct an OH Report before the claimant’s return to work in January 2018, the claimant provided the respondent with a copy of her Oncologist’s Report (P.181). It was submitted that, “As cancer specialists, Oncologists have a better understanding of the claimant's health and her needs than OH." 64. In her e-mail of 25 July 2018, the claimant made a request for “reasonable adjustments” (P.250). However, it was submitted that these adjustments were already in place and that they were all fundamental to her role as a “Funeral Director” (P.130). 65. It was also submitted that the claimant “had no reasonable grounds” to reject the offer of a “25-hour Funeral Director Contract in April 2018. 66. It was further submitted, with reference to Salford, that even if the adjustments had not been made the claimant’s disadvantage would not have been alleviated fully as the claimant, “had issues with the working environment. 67. It was also submitted, with reference to Needham, that the respondent was unable to hire an additional staff member to take on the duties no longer performed by the claimant while she was still employed. “Extended phased return” 68. The respondent’s solicitor submitted that the respondent, “implemented the reasonable adjustment of a phased return. It further extended its policy of a four week phased return to the extent that the claimant was never required to return to work full-time, having regard to medical advice.” So far as the claimant’s contention that her phased return should have been extended further, it was submitted, with reference to Romec , there was no evidence that such a further extension would have made any difference. “Suitable alternatives” 69. It was submitted that, “two suitable alternative roles” were offered to the claimant at the Capability Review Meeting on 3 October 2018 (P.261) but were rejected by her. “The reality is that the claimant did not want to work for the respondent and this is the root of the reason why the claimant did not accept the suitable alternative roles offered to her. Claimant’s submissions[70]In support of his submissions in this regard, the claimant’s Counsel referred to the following cases:- Archibald v. Fife Council [2004] ICR 954; Fareham College Corporation v. Walters [2009] IRLR 991; Lamb v. The Business Academy Bexley UKEAT/0226/15; United First Partners Research v. Carreras [2018] EWCA Civ323; Environment Agency v. Rowan [2008] IRLR 20; Nottingham City Transport Ltd v. Harvey UKEAT/0032/12; Griffiths v. Secretary of State for Work & Pensions [20? ] IRLR 216; Noor v. Foreign Office [2011] UKEAT/0470/10; Leeds Teaching Hospitals NHS Trust v. Foster [2010] UKEAT/0552/10[71]The PCP relied upon was, “the requirement for the claimant to work the full duties of a Funeral Director, including(i) working on the on-call rota and(ii) heavy lifting/lifting at height” It was submitted that this PCP placed the claimant at a substantial disadvantage, because she was unable to do either at the date of her dismissal.[72]However, the claimant's evidence was that, “this was temporary, pending her building up her strength over time”, which was consistent with the report from her Oncologist on 6 March 2018. Further, this was understood by the respondent, “hence the focus on on-call duties being the barrier to return to work” (P.261-262).[73]The claimant had set out the specific adjustments she sought in her e-mail of 25 July 2018 to Steve Williams: “Not to work on-call rota. No heavy lifting or lifting of any height (P.250). A subsequent OH Report, dated 5 September 2018, confirmed that she required these adjustments and that with those adjustments, she would be fit to work (P.119).[74]According to Mr Beveridge, these adjustments were, “not practicable and would have a detrimental impact on the performance of the Branch'' . However, it was submitted, that the adjustments, “had a real prospect of ameliorating the disadvantage"-, and, so far as practicability was concerned, it was submitted that, “the respondent has provided the Tribunal with precious little evidence to assist with this assessment.[75]Counsel also drew the distinction in his submissions to, “a difference between being unable to make an adjustment at al! and being unable to implement it permanently" ; the claimant, “did not at any time suggest that she needed these adjustments indefinitely. Mr Beveridge’s concession, however, that adjustments could have been tolerated for a period of time is a tacit admission that there was a failure from 25 July 2018 onwards to comply with the duty to make reasonable adjustments. It is fatal to the respondent’s defence to that head of claim".[76]So far as the issue of alternative jobs was concerned, it was submitted that this is “a red herring. It is no answer to a complaint of a failure to make specific reasonable adjustments to say that the respondent otherwise acted reasonably by doing something completely different’. In any event, it was submitted that, “the claimant was perfectly entitled to refuse and to insist upon her own requested adjustments. She did so by e-mail dated 12 October 2018" (P.264). Nor were there any “barriers” to adjustment being made.[77]In support of his submissions in this regard the claimant’s Counsel referred to the following cases:- Basildon & Thurrock NHS Foundation Trust v. Weerasinghe UKEAT/039714; Pnaiser v. NHS England & Another UKEAT/0137/15/LA; Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL11; Hall v. Chief Constable of West Yorkshire Police UKEAT/0057/16; Homer v. Chief Constable of West Yorkshire Police [2012] UKSC15; Hensman v. Ministry of Defence UKEAT/0067/14; Land Registry v. Haughton & Others UKEAT/0149/14; Hardy & Hansons Pic v. Lax [2005] EWCA Civ846; Dominique v. Toll Global Forwarding Ltd UKEAT/0308/13[78]Counsel submitted that, this “head of claim is likely to stand or fall with the Tribunal’s decision on the reasonable adjustments claim, albeit the test is distinct’, Counsel then submitted:- “That being so, the claimant’s dismissal was unlawful in terms of s.15 unless the respondent is able to establish the objective justification defence. However, in circumstances where this respondent took no steps to explore the practicability of the adjustments; offered no reasonable adjustments that addressed the issue; and failed in the s.20 duty to make reasonable adjustments, the respondent cannot meet that threshold. Mr Beveridge’s concession that the adjustments could have been implemented for at least an (unspecified) temporary period means this defence cannot legitimately be relied upon.”[79]In support of his submissions in this regard, Counsel referred to the following cases:- Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439; Sainsburys Supermarkets Ltd v. Hitt [2003] IRLR 23; Newbound v. Thames Water Utilities Ltd [2015] EWCA Civ677;[80]Counsel accepted that capability, a potentially fair reason, was the reason for the claimant’s dismissal. In support of his submission that the claimant was unfairly dismissed and the issue of reasonableness, Counsel relied upon, “essentially the same reason as under the other heads of claim”. He submitted that there was a failure to investigate; that the decision to dismiss was substantively unfair, as it appears to have been determined by, “the claimant’s inability to give a fixed date on which she would have been able to return to her full duties” ; and, “the concessions made by Mr Beveridge that he had in his mind a period of time over which the adjustments would have been tolerable means that the respondent knew adjustments were practicable at the time it dismissed the claimant but nevertheless dismissed the claimant; and the appeal did not involve any offer of any re-engagement to the claimant. Nor was it in any way predicated upon the claimant’s unwillingness to return”. Responses[81]The respondent’s solicitor replied in writing to the claimant’s written submissions and the claimant’s Counsel did likewise in response to the claimant’s submissions. These are referred to for their terms. Discussion and decision[82]We agreed with the claimant’s Counsel that the correct approach was to address the claim for reasonable adjustments first and then the discrimination arising from disability and unfair dismissal claims. This was because all the claims are linked, to an extent; our decision as to whether or not the respondent had made reasonable adjustments proved to be pivotal to the other claims.[83]The relevant, statutory provisions are ss.20 and 21 of the Equality Act 2010 (“the 2010 Act”):- 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 the 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 . ............... ............................. 21. Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with the duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of sub-section (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.1’[84]When considering this claim, we had regard not only to these statutory provisions, but also the EHRC Code of Practice on Employment (2011) (“the Code”). We also remained mindful that the s.20 duty only arises in respect of those steps that it is reasonable for the employer to have to take to avoid the disadvantage experienced by the claimant. However, the onus was on the respondent to put in place reasonable adjustments to ameliorate any disadvantage. Disability status[85]It was accepted that the claimant was a disabled person, in terms of s.6 of the 2010 Act, in respect of her cancer. Provision, Criterion or Practice (“the PCP”)[86]The PCP relied upon was, “the requirement for the claimant to work the full duties of a Funeral Director, including(i) working on the on-call rota and(ii) heavy lifting/lifting at height.”[87]It was not disputed that the claimant was subjected to the PCP. It was clear that the application of the PCP put the claimant at the substantial disadvantage of being dismissed, in comparison with other employees who were not disabled.[88]The respondent was under a duty, therefore, to make reasonable adjustments which would have avoided the claimant’s dismissal.[89]It was surprising that there was so little reference in the respondent’s documents to the fact that the respondent was a disabled person and of the respondent’s duties under the 2010 Act. Nor was there any reference to the claimant’s disability in the dismissal letter (P.277). While the issue of adjustments was considered by the respondent, that was mainly because it was raised by the claimant.[90]When the claimant returned to work on 29 January 2018, her return was somewhat haphazard and unstructured. Although she did some Funeral Director duties, she did not return as a Funeral Director, with adjustments. It was to a role which was unclear. Nothing was recorded in writing. Mr Williams said in his email of 27 July 2018 it was, “in a role that had been created for her”(P. 130); both Ms MacDonald and Mr Cumming also said that a job had been created for her. Their response it seems to the duty to make reasonable adjustments was to change her job. No Occupational Health Report was obtained and nor was there a phased return plan. It was the claimant who was proactive in this regard. It was left to her to request a Report from her Oncology Nurse after she returned to work. She provided the Report dated 6 March 2018 to Mr Cumming and he took a photocopy (P. 420). The claimant was simply left to decide what work she could or couldn’t do on her return and how may days and hours she felt she would be able to work each week.[91]We were left with a strong sense that the respondent was not as aware of its obligations under the 2010 Act in respect of a disabled person as it should have been. We had sympathy for Mr Cumming who was only a Trainee Branch Manager, at the time. He was an honest witness and tried to do his best but he was left to deal with the claimant’s initial return in January 2018. He was inexperienced and got little support. He had received no training or guidance on how to deal with a disabled employee’s return to work. There was no discussion about the implications of the claimant being disabled. He did not discuss with the claimant a return to work with adjustments. Nothing was committed to writing. Mr Cumming had little involvement in the events leading to the claimant’s dismissal, from July 2018. However, Mr Beveridge, who took the decision to dismiss the claimant, accepted in cross-examination that there was no discussion about the claimant being disabled and the additional legal requirements that would entail. Also, Mr Boyle said in evidence, “from the beginning it was not handled properly, and I admit that It was not surprising, therefore, that the respondent accepted that, “they would now approach disability cases differently" Reasonable adjustments[92]In her e-mail of 25 July 2018 (P.250) to Steve Williams, the claimant requested two specific adjustments: “Not to work on-call rota. No heavy lifting or lifting of any height”.[93]It is significant, in our view, that the claimant only regarded those proposed adjustments as temporary measures, until such time as she was able to build up her strength. This was consistent with the Oncology Nurse’s Report on 6 March 2018 (P.420), . There was also further evidence of the claimant’s aim to get back to full time employment, in due course, without adjustments. For example, after she returned to work, she had been able to increase her hours of work; when she first returned in January 2018 she only worked 9 hours each week; when she was signed off due to stress in May she had worked 30 hours; the OH Report of 12 April 2018 advised that she was “fit for work with adjustments” and advised that she was “making steady progress” (P.122); the OH Report of 5 September 2018 confirmed that the claimant was “fit to work with adjustments" and recommended, “a return to work on a trial or phased return" (P.119); it also recommended that she could, “trial on-call duties as a floater as this will minimise the frequency of on-call duties. It will increase her confidence and resilience, and hopefully will help in her further reintegration in the workforce" (P.120). The respondent had clear evidence, therefore, that, over time, the claimant was likely to regain her strength and resume the full duties of a Funeral Director, or at least that was her aim. All she wanted, as she put it, was to be “given a chance to get back to my Funeral Director role”.[94]However, no temporary period of employment with adjustments in place was ever offered.[95]When the claimant was signed off work in May 2018 it was not because she wasn’t able to cope with her workload. She had been making progress, in terms of hours and capability. It was due to stress caused by a dispute about her wages, which had caused her serious financial difficulties, and the manner in which she felt she had been treated by the respondent, in relation to her return to work.[96]The respondent was fixated on requiring the claimant to give an “end date" and “time scale" for these adjustments. But the nature of the claimant’s disability was such that it was not reasonable, to require her to determine an “end date" with any precision. It was simply not possible. However, it was significant that when Mr Boyle, who heard the claimant’s appeal against dismissal, was cross-examined he said that if the claimant had told him she wanted these adjustments in place for 1 2 months he would have, said “yes”; and when he was asked what his response would have been if she had asked that the adjustments be put in place for 2 years, he replied, “I’d have looked at that.[97]As it transpired, when she failed to give an “end date” the claimant was dismissed on 29 October 2018, less than two months after the respondent had received the OH Report on 5 September which had recommended a phased return to her Funeral Director job, with adjustments. “On-call”[98]We agreed with the claimant’s Counsel that the “on-call” issue was, “the principal barrier to the claimant returning to work”. This is clear from the Notes of the “Formal Capability Review Meeting” on 3 October 2018 (P.261-263). The issue of heavy lifting was never discussed at that meeting (P.264).[99]The respondents position was that the adjustments requested by the claimant were “not practicable” and would have a detrimental impact on the performance of the Branch. However, the Branch had been able to function and cover on-call duties for some 2 years when the claimant was off work undergoing her cancer treatment, until her return in January 2018; from that date, with adjustments until May 2018; then when she was absent until her dismissal on 29 October 2018; and there was no financial detriment to the respondent as the Funeral Directors were paid a fee for being on-call.[100]Nor were we persuaded by the evidence of the respondent’s witnesses that having other employees cover the on-call rota for the claimant was only a “short-term fix” and that the claimant’s absence made the workload of others very stressful. There was no clear and compelling evidence of this. The only evidence we heard from the respondent was that there had been “grumblings” from the claimant’s colleagues about having to do the on-call rota without her, evidence which we considered to be anecdotal. Mr Cumming was unaware of any such “grumblings”. There was no evidence of the respondent investigating this with the other Funeral Directors.[101]In any event, Funeral Directors were required under their contracts of employment to be on-call one week in every three (P.406) and, even in the claimant’s absence, that requirement was less onerous.[102]The Job Description for a Funeral Director also provides that out of hours work will only be required, “where necessary and within reason” (P. 364).[103]The claimant, a credible and reliable witness, gave evidence that she’d spoken to some of her Funeral Director colleagues about covering the on-call rota in her absence, they didn’t have an issue with, “mucking in and helping out”, and she was not aware of any “grumblings”.[104]Also, at another Branch in Aberdeen the respondent had made adjustments for another employee’s on-call rota duties because he was receiving chemotherapy.[105]Further, the Code states at Para 6.35, under the heading “What is meant by ‘reasonable steps?” that: “In some cases, a reasonable adjustment will not succeed without the cooperation of other workers. Colleagues as well as Managers may therefore have an important role in helping ensure that a reasonable adjustment is carried out in practice. Subject to considerations about confidentiality, employers must ensure that this happens. It is unlikely to be a valid defence to a claim under the Act to argue that an adjustment was unreasonable because staff were obstructive or unhelpful when the employer tried to implement it. An employer would at least need to be able to show that they took such behaviour seriously and dealt with it appropriately.”[106]The claimant also gave evidence about the Funeral Director duties which she could have done, had the adjustments been put in place. She could have attended the mortuary which is a “one person job”; “setting-up” the premises such as the Church and Chapel for the funeral service; contacting the deceased’s family and making the funeral arrangements; driving; arranging flowers; arranging orders of service; arranging music for the service.[107]However, that was not acceptable to the respondent without an “end date” and no offer of even a temporary period with the adjustments in place was offered. The dismissal letter makes it clear the respondent was unwilling to make the adjustments at all (P.277-278). Alternative employment[108]We agreed with the submission by the claimant’s Counsel that this was something of “a red herring” and that: “it is no answer to a complaint of a failure to make specific reasonable adjustments to say that the respondent otherwise acted reasonably by doing something completely different. An offer that the claimant give up her job and accept a lesser position is entirely different to making adjustments to the claimant’s existing duties to allow her to continue in her existing role.”[109]In any event, in our view, a reasonable employer would only have been considered alternative employment after the claimant’s phased return as a Funeral Director, with the adjustments she had proposed, proving to be unsuccessful. In any event, the claimant was entitled to reject the proposals which were made at the meeting on 3 October 2018. The claimant was given three options at that meeting (P.263): “1. Full F/D role. 2. FSA/Admin (4 wk trial). 3. Termination on grounds of capability”[110]The respondent was well aware that the claimant was not in a position, at least at that time, to fulfil the role as Funeral Director without adjustments; so far as the FSA/Admin role was concerned, the salary was some £9,000 less per annum than that of a Funeral Director; there was to be a four week trial and when the claimant asked what would happen if the trial proved to be unsuccessful, or if the job proved not to be suitable, she was told that she could re-apply for her Funeral Director job. This confused the claimant : she asked why she would have to apply for a job she already had. 111. it was not surprising, therefore, that the claimant rejected these options (P.265); at the same time sent an e-mail to Steve Williams regarding the “capability meeting” on 3 October as follows (P.264):- “Regarding the ability to work with reasonable adjustments I do not accept that the company cannot accommodate the adjustment for me returning as a Funeral Director. I know this can be implemented and is in place within the funeral business that Dignity run. This adjustment can be used when necessary, so why can it not be used to support my return to my position within the Company? I also request there is a reasonable adjustment of no heavy lifting, this wasn’t mentioned in my capability meeting. This is fundamental in my Funeral Director role as is on call duties." The appeal[112]The appeal was not a re-hearing. Mr Boyle who heard the appeal, said, “it was to establish whether there were any additional facts, anything else Janie wanted to bring which was relevant”, and a disproportionate period was spent discussing the claimant’s unpaid wages and holiday pay. We found favour with the submissions by the claimant’s Counsel in this regard that: “The appeal procedure does nothing to change the foregoing. The failure to make adjustments resulting in dismissal had already occurred. The assertion that there was a willingness to make “some adjustments” (P.302.3) is unsupported by the evidence”. 11 3. We arrived at the unanimous view, therefore, that the respondent had failed in its duty to make reasonable adjustments and that this claim was wellfounded. In doing so, we were mindful that the Code says this at para. 6.29: “ultimately, the test of the reasonableness of any step an employer may have to take is an objective one and will depend on the circumstances of the case”.[114]S.15 of the 2010 Act is in the following terms:- “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) Sub-section (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."[115]The first requirement of this section is that a disabled employee must have been treated “unfavourably”, not “less favourably”, which means there is no need for a comparator. We found favour with the submissions by the claimant’s Counsel in this regard, applying the guidance in Pnaiser. The unfavourable treatment was the claimant’s dismissal.[116]The discriminatory treatment must be as a result of something arising in consequence of the claimant’s disability, not the disability itself: there must be something that led to the unfavourable treatment and this ‘something’ must have a connection with the claimant’s disability.[117]The claimant’s dismissal was allegedly because she was, “unwilling/unable to fulfil her full duties as Funeral Director" (P. 277); there was no question, whatsoever, of the claimant being “unwilling". \Ne cannot understand why that was alleged. The claimant loved her job and took pride in it; she said it was her “dream job" and that she had, “left a long career in retail to fulfil her dream”; she was determined to return to her full duties as a Funeral Director.[118]Her dismissal arose in consequence of her disability and, in particular, her inability to lift heavy objects and/or at height and her inability to work on-call. While, as we recorded above, we were surprised at the lack of reference to the respondent’s obligations in respect of a disabled person in the 2010 Act, the respondent was aware of the claimant’s disability, long before the date of dismissal. Objective Justification[119]This meant that the respondent could only rely on the objective justification defence. The “legitimate aim”re\ied upon was, “the need to have a workforce capable of carrying out their role and acting safely while doing so”[120]S.15 is silent to what amounts to a “legitimate aim”, but the Code states that for the aim to be legitimate it must be “legal, would not be discriminatory in itself, and must represent a real objective consideration (para. 4.28)” Link between S.20 and S.15 claims[121]The case law has established that the failure to make reasonable adjustments provisions in the 2010 Act and objective justification under s.15 are closely linked. In Dominique, to which we were referred by the claimant’s Counsel, for example, the EAT held that where there is a link between the reasonable adjustment said to be required and the disadvantages or detriments being considered, in the context of discrimination arising from disability; any failure to comply with the reasonable adjustment duty must be considered “as part of the balancing exercise in considering questions of justification ” The EAT commented that it was difficult to envisage how a disadvantage that could have been addressed or prevented by a reasonable adjustment that has not been made can, in reality, be justified.[122]We were also mindful of the Judgment in Griffiths, to which we were also referred, and, in particular the Judgment of Lord Justice Elias when he said:- “An employer who dismisses a disabled employee without making a reasonable adjustment which would have enabled the employee to remain in employment - say allowing him to work part-time - will necessarily have infringed the duty to make adjustments, but in addition the act of dismissal will surely constitute an act of discrimination arising out of disability. The dismissal will be for a reason related to disability and, for potentially reasonable adjustment which might have allowed the employee to remain in employment has not been made."[123]It was clear, therefore, that the respondent, in the present case, would have great difficulty establishing objective justification, in light of our finding of a failure to make reasonable adjustments.[124]Further, even if the respondent had a legitimate aim, we were not satisfied that the claimant’s dismissal was “proportionate”. In this regard, we were assisted by the guidance in Homer, to which we were also referred, where Baroness Hale stressed that: “To be proportionate a measure must be both an appropriate means of achieving a legitimate aim (and reasonably) necessary to do so.” We were also minded of the guidance in the Code about ‘What is proportionate?" (paras. 430-432) and the, “balancing exercise which has to be carried out”.[125]As we recorded above, it was reasonable for the claimant to refuse the “alternative roles” which were offered, such as they were; no reasonable adjustments were made; there was no question of the respondent having to employ the claimant “indefinitely”, as the respondent’s solicitor submitted, with the adjustments remaining in place.[126]We were also mindful that “the greater financial cost of using a less discriminatory approach cannot, by itself provide a justification for applying a particular provision, criterion or practice. Costs can only be taken into account as part of the employer’s justification for the provision, criterion or practice if there are good reasons for adopting that’ (the Code para. 4.32).[127]The onus was on the respondent to establish justification. They failed to discharge that onus. We arrived at the unanimous view, therefore, that this claim was also well-founded.[128]In every unfair dismissal case where dismissal is admitted, s.98(1) of the Employment Rights Act 1996 (“the 1996 Act”) requires the employer to show the reason for the dismissal and that it is an admissible reason, in terms of s.98(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.[129]It was common ground between the parties that capability, an admissible io reason, was the reason for the claimant’s dismissal.[130]The remaining question which we had to determine, therefore, under s.98(4) of the 1996 Act, was whether the respondent had acted reasonably in treating that reason for dismissing the claimant as a sufficient reason and that question had to be determined in accordance with equity and the substantial merits of the case,[131]Once again, we found favour with the submissions by the claimant’s Counsel in this regard. The investigation into the claimant’s ability to perform the duties of a Funeral Director was flawed; “no manual handling assessment was carried out re-the issue of heaving lifting. No steps were taken to ascertain to what extent the Branch in question could tolerate a Funeral Director who did not do on-call nor over what time period.”[132]The decision was also substantively unfair. As we recorded above, the respondent was fixated on requiring the claimant to give an “end date” but, as Counsel submitted, “that demand of the claimant is tantamount to a demand that she waive her right as a disabled person to receive reasonable adjustments. The dismissal of the claimant in the face of acceptance that adjustments could be made for a period of time, without any actual offer to do so and at a point before any attempt had been made to do so, is axiomatically unfair. Further, as we recorded above, Mr Boyle accepted that he would have been prepared to accept the adjustments which the claimant proposed for a period of 12 months and he would have considered a period of 2 years.[133]As we recorded above, it was reasonable for the claimant to reject the offer of alternative roles, such as they were.[134]Nor was the appeal a re-hearing. It made no difference.[135]In our unanimous view, a reasonable employer acting reasonably would be expected to wait longer, not insist on her giving an “end date” and, as she put it, “give her a chance”.[136]We arrived at the unanimous view, therefore, having regard to Iceland Frozen Foods, to which we were referred, that the claimant’s dismissal in all the circumstances, and having regard to the respondent’s, “size and administrative resources”, was not within the band of reasonable responses which a reasonable employer might have adopted, particularly when dealing with a disabled employee. The claimant’s dismissal, therefore, was unfair.
Remedy
[137]The remedy sought by the claimant was compensation. There was included in the Joint Bundle a “Quantification of Loss” (P.369-370).[138]On 6 December 2023, the Tribunal sent a Note to the parties to advise that the Tribunal had decided to award the claimant a total of £60,940.62. The Note is referred to for its terms. However, as the award was in excess of the tax free element of £30,000 the parties were invited to make representation in relation to “grossing up". The following are excerpts from the Tribunal’s Note:- “4. As the Tribunal understands it, each of these awards are taxable under sections 401-416 of the Income Tax (Earnings and Pensions) Act (ITEAR) 2003. The injury to feelings award is taxable as the award is being made for a termination of employment after 6 April 2018 and is therefore captured by s.406 ITEAP. 5. Payments, subject to tax under sections 401-416 ITEAP are only taxable to the extent that they exceed a £30,000 tax free threshold. 6. The award requires to be grossed up so that the claimant receives the full net amount of the award. 7. As this will depend on the claimant’s personal financial circumstances, parties are directed, in the first instance, to liaise with a view to agreeing the grossing up sum which will require to be added to the award. 8. In the event that parties are unable to reach agreement within the next 14 days, they are directed to make written submissions to the Tribunal within 7 days thereafter and to comment on the other parties’ submissions within 7 days of receipt of them.”
award.
[139]The claimant’s Counsel responded by way of a “Grossed up Schedule of Loss”. However, the respondent’s solicitor advised that she wished to consider the Judgment and Reasons before making submissions. That was understandable.[140]In these circumstances, the Tribunal has decided that, it is in accordance with the overriding objective in the Tribunal Rules of Procedure and in the interests of justice, to fix a one day, in-person, Remedy Hearing when the Tribunal will reconsider the award of compensation and determine the grossing up element. The respondent’s solicitor may wish to submit her own “Grossed up Schedule”, in advance of the Hearing.