Mr G R McEwan v Royal Mail Group Ltd: 4103485/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103485/2023Venue AberdeenHearing 11, 12 & 13 December 2023
Between
Mr G R McEwanClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge N M HosieDate 7 February 2024
JUDGMENT
[1]the respondent unlawfully discriminated against the claimant, in respect of his disability, in terms of s.15 and s.20 of the Equality Act 2010;[2]the claimant was unfairly dismissed by the respondent;[3]the claim of harassment, in terms of s.26 of the Equality Act 2010, is not well- founded and is dismissed; and[4]a Remedy Hearing should now be fixed. E.T. Z4 (WR)
REASONS
[1]The claimant, Gregor McEwan, brought claims of unfair dismissal and disability discrimination. The respondent admitted the dismissal but claimed that the reason was, “some other substantial one”, namely “unsatisfactory attendance”, or, in the alternative, capability, and that it was fair. Otherwise, the claims were denied. Disability[2]The claimant has had Epilepsy since 2002. The respondent had knowledge of his condition since at least 2015. The respondent accepted that the claimant was a disabled person, in terms of s.6 of the Equality Act 2010.
The evidence
[3]On behalf of the respondent we heard evidence from:-• William Lumsden, Operation Shift Manager• David Noble, Plant Manager, who took the decision to dismiss• Alan Rankin, Independent Case Manager, who heard the claimant’s appeal against his dismissal.[4]We then heard evidence from the claimant.[5]A Joint Inventory of documentary productions was also submitted (“P”), along with an agreed Chronology.[6]It was agreed that the issue of liability should be determined first and that if the claim was successful a Remedy Hearing would then be fixed.
The facts
[7]Having heard the evidence and considered the documentary productions, the Tribunal was able to make the following findings in fact, relevant to the issues with which we were concerned. The claimant commenced his employment as a Postman with the respondent on 15 February 1988. He worked at the respondent’s Aberdeen Plant. He was dismissed with effect from 27 January 2023 because of “unsatisfactory attendance”.[8]At the time of his dismissal, the claimant was employed as a “Late Shift Work Area Manager”. This was a supervisory role. The job was to supervise teams, manage machinery operations, process mail, manage people and keep duties equally dispersed. National Attendance Agreement[9]This was one of the documentary productions (P.213-280). This is an agreement between the respondent and the two recognised trade unions, CWU and Unite, about absence procedures. The claimant was a member of Unite. Attendance Policy[10]There was also included with the documentary productions the respondent’s Attendance Policy (P.281-289) which includes the process and the agreed attendance standards (P.288/289). However, the Agreement takes precedence in the event of any inconsistency between the Policy and the Agreement (P.282). If an employee has the level of absences detailed in the standards this prompts an Attendance Review (“AR”). The formal attendance process has three stages: 2 ARs and, in the absence of an improvement, consideration of dismissal.[11]On 13 January 2021, the claimant had a “consideration of dismissal meeting” with David Noble, Plant Manager.[12]On 29 January 2021, Mr Noble wrote to the claimant by way of what was referred to as the, “drawing a line in the sand letter”. He advised the claimant that he had decided to return him to the start of the attendance management process, but that going forward any future absences relating to the claimant’s Epilepsy, including part-day absences, “may be counted towards the formal attendance procedure” (P.58159). Until then, his disability related absences had not been counted by the respondent. The following are from excerpts from his letter:- “I have decided that from 1/2/2021 any future absences relating to your Epilepsy and associated absence, including part day absences may be counted towards the formal attendance procedure............................. ....... My decision to count your disability related absences will be kept under review and may be reversed if there’s a clear improvement in your attendance.”[13]On 17-19 February 2021, the claimant had a 3-day sickness absence, recorded as due to a headache.[14]On 8 June - 9 June 2021, the claimant had a 2-day sickness absence, recorded as due to Epilepsy.[15]On 6 September - 7 September 2021, the claimant had a 2-day sickness, absence recorded as due to Epilepsy.[16]On 5 October - 14 October 2021, the claimant had a 10-day sickness absence, recorded as due to Coronavirus.[17]On 15 October 2021, the claimant had a 1-day sickness absence recorded as due to Epilepsy. Attendance Review Meeting (“AR1”)[18]On 1 November 2021, William Lumsden, Operations Shift Manager, wrote to the claimant to invite him to an AR1 Meeting on 4 November 2021 as his, “level of absence is a cause for concern and has fallen below the Royal Mail Group attendance standards’1 (P.62).[19]Interview Notes of the Meeting were produced (P.64-67). The absences discussed included those relating to the claimant’s Epilepsy, in accordance with Mr Noble’s letter of 29 January 2021 (P.58/59); and also his 10-day sickness absence, in October, recorded as due to Coronavirus.[20]On 17 November 2021, Mr Lumsden wrote to the claimant to inform him that although he had discounted the 2 Coronavirus absences, including the one on 17 February 2021 which was recorded as a Headache, he had “still failed to meet the business standard” and he had decided to issue the AR1 (P.68- 69). Claimant’s subsequent sickness absences[21]On 14 - 17 December 2021, the claimant had a 4-day sickness absence, recorded as due to fludike symptoms. This absence was later discounted as being a Coronavirus related absence.[22]On 6-13 January 2022, the claimant had an 8-day sickness absence, recorded as due to a stomach upset.[23]On 18-21 January 2022, the claimant had a 4-day sickness absence, recorded as due to a stomach upset.[24]On 31 January to 7 February 2022 the claimant had an 8-day sickness absence recorded as due to Coronavirus. This was also discounted. AR2[25]On 16 February 2022, Mr Lumsden wrote to the claimant to advise him that he was required to attend an AR2 Meeting on 23 February 2022 (P.70-71). Notes of that meeting were produced (P.73-76).[26]On 28 February to 1 March 2022, the claimant had a 2-day sickness absence, recorded as due to stress.[27]On 15 March to 23 March 2022, the claimant had a 9-day sickness absence, recorded as due to Coronavirus.[28]On 31 March 2022, Mr Lumsden wrote to the claimant to advise him that he had decided to issue the AR2 (P.77). This meant that if the claimant had, “2 absences or 10 days in the next 6 months”, this would prompt a “consideration of dismissal”.[29]On 16 May 2022, the claimant had a part-day absence, recorded as due to Epilepsy.[30]On 14 June 2022, the claimant had a 1-day sickness absence, recorded as due to a stomach upset.[31]On 28 July 2022, the claimant had a 1-day sickness absence, recorded as due to Epilepsy.[32]On 2 September 2022, the claimant had a part-day absence, recorded as due to Epilepsy. Occupational Health Report[33]On 15 September 2022, the respondent obtained an Occupational Health Report (P.83-85). The Report contained the following “Disability Advice”:- “/n my opinion, disregarding the effect of treatment, Mr Gregor McEwan would be considered as disabled under the Equality Act The condition(s) this relates to is Epilepsy. It is for the employer to decide whether or not it wishes to accommodate any reasonable adjustment for him under the circumstances of this underlying condition. An example may be the acceptance of an increased and more frequent sickness absence record as a consequence of this significant medical condition. However, ultimately it is for his employer to decide whether this is a reasonable and acceptable accommodation to make for him under the circumstances." Consideration of dismissal meeting[34]On 30 September 2022, David Noble, Plant Manager, wrote to the claimant to invite him to attend a “consideration of dismissal meeting” (P.87/88).[35]The meeting was held on 17 October 2022. Notes of the meeting were produced (P.90-94). We were satisfied that they were reasonably accurate. The following are excerpts from the Notes:- “DN - Next I’d like to look at the Disability Notification letter of 29th January 2021 which was issued following a previous COD at that time (P.58-59). It states that a meeting was held to discuss your absences relating to disability, Epilepsy and associated absences including part day absences and that future absences may be counted towards formal attendance procedure. This letter details a discussion about your method of improving attendance at that time which included your diet and taking medication regularly. MM (trade union representative) - The key point in this document is the second paragraph which says that absences may be counted. GM - I wouldn’t say that I’m eating well. It’s still not the greatest. I don’t get home until 10:40 at night and don’t want to eat at that time. MM - The second last paragraph states that the decision to discount disability related absence will be kept under review and may be reversed if there is clear improvement in attendance. How has that been done? DN - I’d suggest that the attendance meetings since this letter have been a review of the absence. MM - I don’t think that is a demonstrable review of the absence and there is no evidence to show this has been done ............................ ..... . DN - The next thing I’d like to look at is the OH report dated 15th Sept. This has taken several weeks to arrive following some delays ............. . DN then proceeded to review the dates listed on the OH report broken down into the three categories - Epilepsy, Stomach and Covid. The report stating that Gregor has suffered from Epilepsy for many years and takes medication to prevent seizures. This goes on to suggest that Gregor is worried about being in a management role and having a seizure in front of his team. It confirms that Gregor is covered under the EA with Epilepsy and suggests that a reasonable adjustment is allowance of increased sick absence relating to this condition. The report continues on the next group of absences relating to stomach issues under investigation. Without diagnosis this is creating stress and anxiety for Gregor due to the ongoing stomach condition. Epilepsy and work related stress which may lower his seizure threshold. The report suggests the benefit of a workplace stress RA. GM - The stress assessment I have was just one I did myself - it doesn’t cover everything. DN - / looked at this and nothing jumps out as troubling. GM - No I agree. I have the option to take my break and stuff like that. DN - It mentions workplace stress in the OH report. What is the cause? GM - It’s difficult to identify stressing yourself. I take it home with me. I find myself clenching the chair. DN - What’s the cause? GM - 1 don’t really know. I’m a manager and having a seizure at work maybe. I spoke to Michelle McCabe (previous LM) years ago about stepping down from management but she spoke me out of it. I don’t want to lose my job but don’t want to have a seizure at work and come round with a load of people watching me. That stresses me. Panic in my head can affect me. ....... DN - I have to ask you about drinking. GM - I don’t go out much now. DN - What about at home? GM - I have a couple at the weekend and maybe one when I go home. I spoke to GP before and he said it was ok. I’ve not been out for years, maybe a meal with my daughter but that’s about it.” Dismissal[36]On 4 November 2022, David Noble wrote to the claimant to advise that he had decided to dismiss him “on the grounds of unsatisfactory attendance” (P.101-102). He gave the reasons for his decision in a “Conclusions” document which was attached (P.105-108). The following are excerpts:- “When asked about work place stress Gregor stated that he struggled to identify the cause. He suggested that his concerns over having a seizure at work, in front of his team, may be a factor. This led him to recount a discussion with his previous manager when he suggested stepping down from management because of this stigma ............................ From all of the above it is very clear that Gregor’s attendance continues to fall significantly below the agreed standards. This is the second COD within a 2 year period. The absences which led to the COD trigger accumulated over just 18 months. Gregor has made commitments to improve his attendance referred to in the notification letter of 29/1/21 with new medication and improved eating habits and diets. It’s clear that this has not happened. Gregor stated at interview that what (sic) he is still on Epilim and now on a reduced dose following a maximum dose some years ago ................. As far as improvement to the frequency of Epilepsy absence I have looked back at the past 10 years which average 6 absences each year. Some with slightly more and others with less. The most recent period since COD in January 2021 is a period of 18 months to the current COD trigger. This shows 6 reported Epilepsy absences giving an average of 4 per year. Whilst this may show a reduction in frequency his absence level remains well above the agreed standard. There are several other absence reasons which contribute to the process as well as covid absences which have been discounted... Based on all of the above it is clear that Gregor’s attendance continues to fall below the agreed standard. This has been the case for some time now and Gregor his (sic) faced dismissal previously. Gregor has a condition covered under the Equality Act and has had previous absences discounted at stage 1-3. There is a notification letter in file which advises Gregor that future absences may be counted. Following the dismissal case in January 2021 Gregor was clear of the process for a short period before triggering AR1 in October 2021. This was followed by AR2 in March 2022 and the COD trigger in August 2022. This clearly indicates that his attendance falls well below standard and has done for a long period of time. There are various causes for absence as well as the Epilepsy which is covered by EA. Stomach problems have appeared 3 times between January and June 2022 and there are 3 Covid absences due to SI and confirmed case headache, flu and stress all feature for single absences too. The above indicates that there is a wide variety of absence which has led to the dismissal stage of the process being triggered and that this is a long standing issue. Gregor avoided dismissal in 2021 and gave some commitments to improve his attendance through better diet and medications. This clearly has not delivered the desired change and he continues to fall below standard. It seems reasonable to conclude that Royal Mail has taken all practical steps to support Gregor having taken into account many absences in the past however, supported with flexibility of start times and as he states his line managers have also supported him in his day to day job. This is not sustainable. Gregor was notified this may be the case following the previous dismissal case in 2021. It is therefore my decision that Gregor will be dismissed on the grounds of failing to meet the agreed attendance standards.” Appeal[37]On 7 November 2022, the claimant intimated that he wished to appeal against his dismissal (P.109).[38]On 6 December 2022, the claimant gave the reasons for his appeal (P.1 54156). The following are excerpts:- ‘A/fy attendance has been of an expected standard given my known disability and the reasonable adjustments have been in place to help and support me throughout my career and help me manage my disability related condition. I feel that by removing or altering the adjustments that have been in place is unreasonable and could have a detrimental effect on my disability related condition. It is my contention that the removal of the existing adjustments could constitute discrimination and could create a situation that leads to my dismissal via the attendance procedure. The thought of existing adjustments being removed or altered has caused me a great deal of stress and anxiety, which is having an adverse effect on my health and the detrimental effect on my overall well-being and potentially my condition. The most recent OH Final Report carried out on me recommends that Management consider whether it would be beneficial to conduct a work place risk assessment. This has never been done and I think it would be of benefit both to myself and the Business .... ................ One of my absences has been recorded as a stomach upset from 18.01.2022 - 21.01.22 but the case manager has recorded this in both his decision notes as Epilepsy. I highlighted on receiving the notes that this was not an absence due to Epilepsy and my absent record states that it was a stomach upset but it has not been changed on his notes. I would like to see the notes reflect my true reasons for absence. The Disability notification letter states that my Disability related absences ‘may’ be counted against me. This does not state that they will be counted yet they clearly have. The Disability notification letter also states that the decision to count my disability related absences will be kept under review and may be reversed if there is clear improvement in my attendance. I believe that my Epilepsy has improved substantially but I have not been made aware of any review being carried out. .. ................... ...... .................. .. ......... ........ ................ During the Consideration for Dismissal interview my Union representative gave the Case Managers copy of an Epilepsy information document (P.209) which the case manager had never seen or has any other Manager discussed any of the content with me. This suggests that none of them had read it either. As a duty of care and to understand my condition better I would have expected this to have been carried out. Why has this not happened? Other points to consider:- 1. My length of service with Royal Mail is over 35 years. 2. The Line in the Sand letter I received (P.58-59) in the second paragraph clearly states that the absences “may” be counted. Yet every absence thereafter has been counted whether disability related or not. This is not in the spirit of the correspondence I would suggest? 3. The second last paragraph of the Line in the Sand letter states that the decision to discount disability related absence will be kept under review and may be reversed if there is clear improvement in attendance. How has that been done and when exactly by the author of the letter? 4. At the COD interview we asked for demonstrable evidence of point 3 above to be provided. This information was never supplied. I wonder why? I would suggest that the reason for this is that no review has taken place since, as per the outlined process. 5. COD Interview - Investigating Manager stated at interview that he accepted that my attendance had improved in recent times. Again, I ask if this was accepted to be the case why a Review was not undertaken as per the outlined process? 6. A copy of Epilepsy Guidance Notes for Managers (see attached) - Why has the guidance for Managers dealing with Epilepsy not been adhered to? 7. Royal Mail is a huge organisation as everyone is aware. I would therefore be interested to know how many Epilepsy suffering staff have been issued with a Line in the Sand letter, which consequently has led to dismissal? Am I being treated equally and fairly, particularly with regards to the Equality Act 2010- Disability?" Appeal hearing on 13 December 2022.[39]The appeal was conducted by Alan Rankin, Independent Case Manager. Notes of the Appeal were produced (P.158-164). We were satisfied that they were reasonably accurate, subject to the claimant’s comments (P.165).[40]Mr Rankin used the claimant’s Absence Record which was produced (P.152- 153).[41]After the appeal hearing Mr Rankin carried out further investigations with William Lumsden (P.170-171); and David Noble (P.178-179). Appeal outcome[42]On 16 January 2023, Mr Rankin wrote to the claimant to advise him that he had decided to reject his appeal (P.196). At the same time, he sent his “Attendance Appeal Decision Document” (P.197-208). Claimant’s submissions[43]The claimant’s solicitor made written submissions which are referred to for their terms. The following is a brief summary.[44]He advanced complaints of unfair dismissal and disability discrimination (a failure to make reasonable adjustments, in terms of s.s.20 and 21 of the Equality Act 2010 and discrimination arising from disability, in terms of s.15; and harassment, in terms of s.26).[45]In support of his submissions, in this regard, he referred to Project Management Institute v. Latif [2007] IRLR 579.[46]The “PCP” relied upon, was: “the requirement of the claimant to obtain a certain level of attendance failing which - applying the attendance management policy."[47]He submitted that as David Noble had advised in the “line in the sand letter” that the claimant’s disability related absences would be kept under review and these absences had decreased, a reasonable adjustment would have been, “a further review of the process, in light of the improved attendance and consideration of a lesser outcome than dismissal'.[48]He also submitted that a “proper risk assessment" should have been carried out and if it had been that would have helped identify, “triggers and proposed supports to assist the claimant in maximising his attendance" .[49]The claimant’s solicitor also submitted that the respondent should have considered moving the claimant to an OPG (Operational Postal Grade), as an alternative to dismissal.[50]Finally, so far as this complaint was concerned, the claimant’s solicitor submitted that a reasonable adjustment would have been an occupational health referral under the respondent’s Ill-health Policy and Procedure.[51]In support of his submissions in this regard the claimant’s solicitor referred to: Williams v. Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC65.[52]He submitted that the respondent accepted that subjecting the claimant to attendance management and dismissing him was unfavourable treatment. “Justification defence”[53]In this regard the claimant’s solicitor referred to:- Loxley v. BAE [2008] IRLR 853 Buchanan v. Commissioner of Police of the Metropolis UKEAT/0112/16/RM[54]The legitimate aim relied upon by the respondent was, “that they wished to ensure adequate attendance levels across the business and to improve employee attendance levels, through the application of an Attendance Management Policy[55]He submitted that, for the reasons he advanced in support of the failure to make reasonable adjustments complaint, the respondent had failed to discharge the burden on it in this regard. In particular, they failed to review their decision not to discount the claimant’s Epilepsy related absences and failed to carry out a review and an individual risk assessment.[56]This related to a comment by Alan Rankin in his “Appeal Decision Document” that: “Whilst Gregor has stated that he couldn’t do anything about his Epilepsy, Gregor has continued to indulge in drinking alcohol despite being aware of the associated risk of increased seizures" (P.202). Unfair dismissal[57]In support of his submissions, in this regard, the claimant’s solicitor referred Abernathy v. Mott Hay and Anderson [1974] ICR 23 Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439[58]The claimant’s solicitor was critical of the respondent’s procedures. He submitted that the decision to dismiss was premature. Respondent’s submissions[59]The respondent’s solicitor also spoke to written submissions which are referred to for their terms. The following is a brief summary. Unfair dismissal[60]In support of his submissions in this regard, the respondent’s solicitor referred Wilson v. Post Office [2000] EWCA Civ3036 Ridge v. HM Land Registry [2014] UKEAT/0485/12 International Sports Co. Ltd v. Thompson [1980] IRLR 340 Lyncock v. Cereal Packaging Ltd [1988] ICR 670[61]It was submitted that the claimant was dismissed for, “persistent short-term absences best characterised as a dismissal for some other substantial reason’1. In the alternative, it was submitted that the reason was capability.[62]So far as the reasonableness of the respondents actings was concerned, it was submitted that, “the pattern of absences and the reason for them have been fairly reviewed’'. When the respondent issued the “drawing the line in the sand letter”, on 29 January 2021 (P.58-59), the claimant’s attendance had already triggered the consideration of dismissal stage.[63]However, despite “appropriate warnings", the claimant’s level of absences did not improve and, “he still breached the trigger points at each stage. The claimant knew the standard of attendance expected of him. He has been subject to this process on many occasions during his employment. Not all his absences were related to his disability. He had a pattern of non-disability related absences also. There was really little to no prospect of his attendance improving at air.[64]It was submitted that it was not reasonable to continue discounting the claimant’s disability related absences. “The impact on the business could not be absorbed up to the date of the claimant’s retirement'. Further, significant costs were being incurred by the business as the claimant was paid full pay every day he was off. The respondent’s solicitor also submitted that the claimant would never have been eligible for ill-health retirement as he had never been on long-term sick.[65]Finally, in this regard, it was submitted that there was no basis for a finding that the claimant’s dismissal was procedurally unfair.[66]The respondent’s solicitor accepted that the claimant’s dismissal amounted to unfavourable treatment and that that was because of his short-term absences, in consequence of his disability.[67]It was also accepted that had the respondent continued to discount his disability related absences during 2021 and 2022 he would not have been dismissed. Objective justification[68]However, it was submitted that, “/t was a proportionate means of achieving a legitimate aim to subject the claimant to the attendance management process and subsequently dismiss him when they did. The legitimate aim of the respondent was to have employees working for them who were able to maintain a satisfactory attendance record. Subjecting the claimant to the attendance management process (we use this phrase as short hand for the various detriments alleged at paragraph 62 of the claim) and dismissal of the claimant, was a proportionate means of achieving that legitimate aim because he had manifestly shown that he was not that employee and was never going to be that employee."[69]In support of his submissions in this regard, the respondent’s solicitor referred Homer v. Chief Constable of West Yorkshire [2012] UKSC 15 Land Registry v. Houghton & Others UKEAT/0149/14 Hensman v. Ministry of Defence UKEAT/0067/14 Department for Work and Pensions v. Boyers [2022] EAT 76 Naeem v. Secretary of State for Justice [2017] UKSC 27 The Trustees of Swansea University Pension & Assurance Scheme & Another v. Williams UKEAT/0415/ 14 Gray v. University of Portsmouth [2021] 6WLUK 702[70]So far as redeployment was concerned, it was submitted that the claimant had advised that he did not wish to return to an OPG role and, in any event, there was nothing to suggest that doing so would have led to an improvement in his attendance.[71]It was accepted that a duty to make reasonable adjustments was incumbent upon the respondent.[72]The respondent’s solicitor then addressed the claimant’s allegations that the respondent had failed to take a number of steps to avoid the disadvantage at which the claimant was placed, namely dismissal. “(a) Discounting completely or allowing greater disability related absence before initiating/applying the attendance management policy/attendance agreement”[73]The respondent’s solicitor referred to Mr Noble’s evidence about the impact that the claimant’s absences was having on the business and it was clear the claimant was going to continue to have a poor attendance record in the future; “they dismissed this employee due to an extensive and long-term history of absence and it would not have been a reasonable step to allow that state of affairs to continue any longer1’. “(b) Removing the claimant completely from being the subject of the application of the attendance management policy and the attendance agreement”[74]It was submitted that this would not have been a reasonable step for the respondent to take. The claimant had other absences which were nondisability related; “to remove him entirely from the process would have been favourable treatment which other non-disabled employees did not receive. It would essentially mean all his absences, whether disability related or not, would be disregarded. Discussions around what was causing the absences and what the respondent and the claimant could both do to minimise the absences would be lost. It is not reasonable to expect the respondent to do this”. “(c) Not progressing the attendance management policy/attendance agreement to stages 1, 2 and 3”[75]It was submitted that if (a) had been implemented matters would not have progressed to stages 1, 2 and 3. The respondent’s solicitor submitted that, “this proposed reasonable adjustment was superfluous in light of the claimant’s position in relation to step (a)”.[76]In support of his submissions in this regard, the respondent’s solicitor referred Reed & Another v. Stedman [1999] IRLR 299 Thomas Sanderson Blinds Ltd v. English UKEAT/0316/10 It was submitted that Mr Rankin’s comment in his appeal decision document (P. 202) had to be considered in context. “He has made his remark for a reason. It is a good reason and it is a justified reason”.[77]Further, it was submitted that the comment could not reasonably be said to have the proscribed effect. “It was a fair and relevant comment for Mr Rankin to make”. Discussion and Decision[78]We addressed this claim first as the reasonable adjustments, discrimination arising from disability and unfair dismissal claims were inter-related and our decision as to whether or not the respondent had made reasonable adjustments was pivotal to the other claims.[79]The principal, 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 a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 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." The “provision, criterion or practice” (“the PCP”)[80]The PCP relied upon was the respondent’s requirement that the claimant attain a certain level of attendance failing which, applying the attendance management policy (“the Policy”).[81]It was accepted that the claimant was a disabled person, in terms of s.6 of the 2010 Act, in respect of his Epilepsy; it was accepted that the application of the Policy put the claimant at the substantial disadvantage of being dismissed. It was accepted by the respondent that it had a duty to make reasonable adjustments which would have avoided the claimant’s dismissal.[82]When considering the claim of a failure to make reasonable adjustments, we had regard not only to the relevant statutory provisions, but also the EHRC Code of Practice of 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 the disadvantage.[83]In our unanimous view, a reasonable adjustment would have been to continue to discount the claimant’s disability related absences. The respondent had been doing so until Mr Noble advised in his “drawing a line in the sand letter” of 29 January 2021 (P.58/59), “that, as from 1 February 2021 any future disability related absences may be counted towards the formal attendance procedure.”[84]Further, although Mr Noble only said that such absences “may be counted”, they were routinely counted.[85]He also said that the claimant’s disability related absences would be, “kept under review" but this was not done.[86]In arriving at the view that the respondent had failed to make reasonable adjustments, we were also mindful that the respondent’s Attendance Agreement states that “Absences arising from disability will normally be discounted when deciding whether the standards have been mef (P.217); also, “part-day absences will not normally be discounted1 (P.217) and yet his part-day absence on 16 May on 2022 was counted (P. 198). In our view, with its size and resources, the respondent having to deal with the absences of a disabled employee was a “normal” situation.[87]Also, on 15 September 2022, shortly before the decision to dismiss on 4 November, the respondent had obtained an Occupational Health (“OH”) Report which contained advice that a possible reasonable adjustment might be, “an acceptance of an increased and more frequent sickness absence record as a consequence of this significant medical condition” (P. 85). Absence records[88]We are bound to say that we found the respondent’s absence records difficult to follow and this was complicated by the fact that there was delay, after a “trigger” had been identified, before inviting the claimant to a meeting, during which the claimant had other absences. No dismissal if disability related absences not counted[89]However, it was common ground between the parties that if the claimant’s disability related absences had not been counted after 1 February 2021, he would not have been dismissed. The “consideration of dismissal” meeting would not have been triggered (P.236).[90]Moreover, we noted that, in terms of the respondent’s “Consideration of Dismissal Guide”, dismissal was not automatic. There were two other possible options (P.260): “The employee remains under review at Attendance Review 2 and receives a new Attendance Review 2 notification; the Attendance Review 2 should not have been prompted.” Risk Assessment[91]There was a recommendation in the OH Report of 12 November 2020, which was discussed at the dismissal meeting on 13 January 2021, that a “stress risk assessment should be done to mitigate any undue stress which can trigger his Epilepsy"’ (P.54); there was also reference to the need for a “specific risk assessment" in the OH document on Epilepsy which was provided by the claimant to the respondent (P.209). However, this was not done by the respondent. It was left to the claimant to complete his own risk assessment. No triggers for his Epilepsy were identified. A proper risk assessment might have done so. OPG role[92]We did not consider that offering the claimant the OPG position would have been a reasonable adjustment or an alternative to dismissal. The claimant had not expressed any willingness to work as an OPG and there was no medical evidence to suggest that this would have reduced his seizures and improve his attendance record. In our view, the submissions by the respondent’s solicitor in this regard were well-founded. Ill-health retirement[93]For the sake of completeness, we also wish to record that we were not persuaded that this was a suitable alternative to dismissal, or a reasonable adjustment. As his absences were all short-term, he did not satisfy the eligibility criteria. The submissions by the respondent’s solicitor in this regard were well-founded.[94]However, we arrived at the unanimous view, that the claim of a failure to make reasonable adjustments was well-founded.[95]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) Subsection (1) does not apply A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.’'[96]The first requirement of the section is that a disabled employee must have been treated “unfavourably”, not “less favourably””, which means there is no need for a comparator. The claimant’s dismissal was unfavourable treatment.[97]The respondent’s solicitor accepted that subjecting the claimant to the attendance management process and subsequently dismissing him, amounted to treating him unfavourably. He also accepted that this unfavourable treatment was “because of his poor short-term absence record which had arisen, in part, if not exclusively, in consequence of his disability.”[98]The respondent’s solicitor relied on the “objective justification defence”. The legitimate aim relied upon was, “to have employees working for them who were able to maintain a satisfactory attendance record".[99]S.15 is silent on what may amount 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[100]The case law has established that the failure to make reasonable adjustments provisions in the 2010 Act and justification under s.15 are closely linked. In Dominique v. Toll Global Forwarding Ltd EAT 0308/13, 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 as the balancing exercise in consideration 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.[101]We were also mindful of the Judgment of the Court of Appeal in Griffiths v. Secretary of State for Work & Pensions [2017] ICR 160 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”[102]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[103]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 referred by the respondent’s solicitor, 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 mindful of the guidance the Code about “What is proportionate?” (Paras 4.30-4.32) and the “balancing exercise” which has to be carried out.[104]Further, in our view the submission by the claimant’s solicitor that there were, “less discriminatory means of achieving the stated legitimate aim”, such as reviewing the decision to count the claimant’s disability related absences and carrying out a proper risk assessment, as advised by Occupational Health, with a view to establishing the cause of his stress and what triggered his Epilepsy, was well-founded.[105]The onus was on the respondent to establish justification and, as the claimant’s solicitor submitted, with reference to Buchanan, “the demands of an employer’s attendance management policy are not mandatory and the employer should be required to justify specific treatment”.[106]While, as we recorded above, returning the claimant to an OPG role was not a reasonable or practical option, when carrying out the “balancing exercise”, referred to in the Code, we were not persuaded that the financial costs and the alleged disruption to the respondent’s business and the risk of “OFGEM sanctions” justified the claimant’s dismissal, particularly having regard to the respondent’s size and resources. Further, “The greater financial cost of using a less discriminatory approach cannot, by itself provide a justification for applying a particular provision, criterion or practice. Cost can only be taken into account as part of the employer’s justification for the provision, criterion or practice if there are other good reasons for adopting it” (the Code Para 4.32).[107]We arrived at the unanimous view, therefore, that this claim was also wellfounded.[108]In our unanimous view, the respondent’s submissions in this regard were well-founded. The context in which the comment founded upon was made was crucial. It was in Mr Rankin’s “Appeal Decision Document” (P.202): “Whilst Gregor has stated that he couldn’t do anything about his Epilepsy, Gregor has continued to indulge in drinking alcohol despite being aware of the associated risk of increased seizures.”[109]Mr Rankin’s comment was based on a OH document on Epilepsy which the claimant’s trade union representative had provided to the respondent (P.209). The evidence he had about the likely impact on the claimant of drinking alcohol was flimsy, had not been fully investigated and the claimant had told him his Doctor had said it was not likely to exacerbate his Epilepsy.[110]However, the claimant did admit to drinking alcohol and he was aware of what the OH document said. Considering the context in which the comment was made, we accepted the respondent’s submission that this was, “a fair and relevant comment for Mr Rankin to make. It is a comment arising from undisputed and relevant facts of the case. It had it’s foundation in the Epilepsy Document which the claimant himself had produced (P.209).”[111]This claim is not well-founded, therefore, and it is dismissed. Unfair dismissal[112]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,[113]It was common ground between the parties that there was a potentially fair reason for dismissal, namely that of “some other substantial reason”.[114]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.[115]Our decision that the claimant was unlawfully discriminated against because of something arising from his disability, in terms of s.15 of the 2010 Act, was relevant to our consideration of the unfair dismissal claim.[116]We found the Court of Appeal decision in O’Brien v. Bolton St Catherine’s Academy [2017] EWCA Civ 1 45 to be of assistance, notwithstanding the fact that it was a case involving long-term absence. Lord Justice Underhill at paragraph 53 stated that while the language of the two relevant statutes is different, a finding that a dismissal for the purpose of s.15 of the 2010 Act meant also that it was not reasonable for the purpose of s.98{4) of the 1996 Act, was, “entirely legitimate”. He said that: “It would be a pity if there was any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act."[117]The respondents decision to take account of the claimant’s disability related absences, its failure to review these absences and to carry out a risk assessment, as recommended by OH and which might have identified the triggers for his Epilepsy, were not the actings of a reasonable employer, particularly when considering the respondent’s size and administrative resources. Also, as we recorded above, the respondent had obtained an OH Report shortly before taking the decision to dismiss the claimant and that Report contained “advice” that discounting the claimant’s disability related absences might be a reasonable adjustment (P.85).[118]In our unanimous view, a reasonable employer acting reasonably would be expected to wait longer. The decision to dismiss was premature.[119]We arrived at the unanimous view, therefore, having regard to Iceland Frozen Foods, that the claimant’s dismissal, in all the circumstances, was not within the band of reasonable responses which a reasonable employer might have adopted, particularly when dealing with a disabled employee, in a promoted position with almost 35 years’ service. The claimant’s dismissal, therefore, was unfair. Remedy Hearing[120]A Remedy Hearing should now be fixed to assess the award of compensation. Meantime, parties are encouraged to liaise io explore the 5 possibility of an extra-judicial settlement.