Mr P Fisher v Arnold Clark Automobile Ltd: 4104696/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104696/2024Venue GlasgowHearing 26, 27 & 28 February 2025
Between
Mr P FisherClaimantArnold Clark Automobile LimitedRespondent
Before
Employment Judge P O’DonnellMs P Wild for claimantLay Representative for claimantMr G McQueen (instructed by Solicitor) for respondentDate 14 March 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claimant’s claim under the Equality Act 2010 is not well-founded and is hereby dismissed.
REASONS
[1]The claimant has brought a claim under the Equality Act 2010 alleging that the respondent had failed to comply with the duty to make reasonable adjustments.[2]The respondent conceded that the claimant was disabled as defined in s6 of the Act but denied that they had breached the duty. Preliminary issues[3]At the outset of the hearing, there was a discussion about the list of issues. A draft had been prepared but the respondent sought some clarification. The Tribunal expressed some concern about the framing of the provision, criterion or policy (PCP) relied on by the claimant. In particular, the Tribunal was concerned that the PCPs as set out did not, on the face of it, create the disadvantages relied on as engaging the duty to make adjustments. The Tribunal was conscious that the claimant and his representative were not lawyers; the Overriding Objective requires the Tribunal to ensure equality of arms between the parties and so, although the Tribunal cannot make the claimant’s case for him, it considered that it was appropriate to raise this issue.[4]After a discussion with the parties and the claimant and his representative having the opportunity to reflect on the matter, an agreed list of issues was produced. The list of issues set out the two bases on which the claimant said the duty to make reasonable adjustments was engaged:a. The respondent applied a PCP that the claimant was required to work the fixed hours of 8am to 5.30pm that were in his contract of employment. This was said to place the claimant at a substantial disadvantage as a disabled person because this prevented the claimant engaging in the necessary physical exercise which he uses to manage his disability.b. The respondent applied a PCP that their flexible working policy does not take account of the requirement of the armed forces covenant. This was said to place the claimant at a substantial disadvantage because the claimant was unable to attend his therapy sessions.[5]In respect of the first PCP, the claimant asserted that the reasonable adjustment which would avoid the disadvantage was allowing him to finish work one hour early on three days a week.[6]In respect of the second PCP, the claimant asserted that the reasonable adjustment which would avoid the disadvantage was to allow the claimant to attend his therapy session.
Evidence
[7]The Tribunal heard evidence from the following witnesses:a. The claimant.b. Philippa Wild, the claimant’s partner.c. Sophie Mars (SM), people assistant, who dealt with the claimant’s flexible working request.d. Charlotte Cunningham (CC), senior people adviser, who heard the claimant’s appeal against the refusal of his flexible working request.e. Lyndsey McMath (LMcM), people assistant, who held a welfare meeting with the claimant.[8]The parties had very helpfully produced an agreed statement of facts in relation to the events of the case. This significantly reduced the amount of evidence which had to be led from witnesses and allowed this to be focussed on the issues in dispute. The Tribunal wishes to express its gratitude to parties for the efforts they have made in relation to this.[9]There was an agreed bundle of documents prepared by the parties. A reference to a page number below is a reference to a page in that bundle.[10]This was not a case where the relevant facts were a matter of any real dispute. As noted above, there was an agreed statement of fact in relation to the sequence of events and the minutes of the various meetings were agreed to be accurate transcripts of what was discussed.[11]The Tribunal considered that all the witnesses sought to give accurate and truthful evidence and this was not a case which turned on any issue of credibility or reliability. Findings in fact[12]The Tribunal made the following relevant findings in fact.[13]The claimant commenced employment as a car valet on 10 October 2023. He worked at a number of the respondent’s branches and, at the time of the events giving rise to the claim, he was employed at Central Car Auctions.[14]The claimant’s hours of work were Monday to Friday starting at 8am and finishing at 5.30pm. The claimant worked as part of a team of 6 valets who were responsible for cleaning cars that came to the auction house each day to make them ready for auction the next day. The claimant worked in a bay washing the exterior of the cars.[15]Based on an analysis prepared as part of the consideration of the claimant’s flexible working request (p153), the number of cars coming to the auction house each day in March 2024 was between 124 to 225 cars each day.[16]For a period of time, the valeting team was short-staffed and so agency workers or employees on loan from other branches were used to fill the gap. This was not wholly successful as some of these stand-ins had earlier contractual finish times leaving periods where the full-time valets such as the claimant had to absorb extra work. This was a temporary position and the respondent recruited full-time valets working the same contractual hours as the claimant.[17]The claimant has post-traumatic stress syndrome (PTSD) stemming from his time serving in the Army. He informed the respondent of this when he was recruited. One manifestation of the claimant’s PTSD is that he has difficulty being in crowded and busy places where there is a lot of noise. Such environments can trigger the claimant’s PTSD and he avoids them as far as possible.[18]One of the means by which the claimant copes with the symptoms of his condition is by way of physical exercise. He regularly attends the gym to exercise and describes this as beneficial to his mental health as it allows him to process events that may have affected him.[19]The armed forces covenant (pp243-244) is the commitment by the government to those who serve in the armed forces. The respondent has signed up to the covenant. Paragraph 1.1 of the covenant sets out the principles that no member of the armed forces should face any disadvantage in the provision of public or commercial service compared to other citizens and that, in some circumstances, special treatment may be appropriate.[20]An occupational health report (pp99-104) was obtained by the respondent in January 2024 about the claimant’s PTSD. The trigger for this were events prior to the claimant moving to Central Car Auctions. The report confirmed that the claimant had PTSD but was fit for work. It suggested adjustments such as a stress risk assessment, a mentor/buddy who could provide support to the claimant and additional breaks or timeouts.[21]The claimant met with a people adviser, Rebecca Bailey, on 15 February 2024 to discuss the report. A transcript of the meeting is at pp105-111 and parties agree this is an accurate record of the meeting. During the course of the meeting, the claimant asked whether it would be possible for him to finish work an hour earlier to allow him more time to attend the gym. He explained that, as matters stood, by the time he got home and had his dinner, he was struggling to get to the gym. He explained that exercise was an important thing to him in terms of managing his mental health. The claimant was directed towards the process for making a flexible working request.[22]On 25 February 2024, the claimant submitted a flexible working request (pp112-114) asking to finish at 4.30pm each day.[23]The claimant met with SM on 5 March 2024 to discuss his flexible working request. A transcript of the meeting is at pp130-135 and parties agree this is an accurate record of the meeting.[24]At the meeting, the claimant explained the importance of exercise in managing his mental health and that his request was being made to help him attend the gym for this exercise. He explained that, by the time he would drive home and have his dinner, he was not getting to the gym until 8.30pm and when he got home he was showering and going to bed. He described this as “draining”. SM asked if the claimant felt he was not getting much work-life balance and he agreed explaining that with this routine there was “not really much scope for anything else”.[25]The meeting also discussed whether there were any other options that would suit the claimant. For example, whether a later start time would allow him to go to the gym before work. The claimant explained that the gym would be too busy at this time and that this could trigger his PTSD. Similarly, the claimant was not looking to move to another branch as he felt settled at central car auctions.[26]There was also a discussion about whether an earlier finish on three days a week would be possible. Although he was initially reluctant to agree to this, the claimant subsequently indicated by email (p139-140) that he would be prepared to compromise on finishing early on three days a week.[27]SM discussed the claimant’s request with the operations manager at Central Car Auctions, Scott Sneddon, who had been present at the meeting with the claimant. In an email of 5 March 2024, Mr Sneddon set out the reasons why he did not consider the claimant’s request could be accommodated as follows:a. The reasons were split into three headings; detrimental impact on ability to meet customer demand; detrimental impact on quality and inability to reorganise work among existing staff; detrimental impact on performance. Mr Sneddon set out more detail under each of these headings which is summarised below.b. The cars coming into the auction house need to be cleaned as they come in each day to avoid work carrying over into the next day and the cars not being ready for auction the next day. The volume can be unpredictable with an increase from 3pm onwards.c. A reduction of staff from 4.30pm would put additional pressure on valet staff to get the work done. The claimant worked with a partner in the wash bay and if the request was granted then this employee would be left alone to do the work. If someone was moved from another bay such as interior cleaning then this would leave that bay short a worker creating the same issues in getting through the volume of work.d. It was expected that the wash bay would clean two cars every five minutes and this expectation would have to be halved when the claimant left early. It would lead to a reduced output of 12 cars a day, 60 a week and 240 per month which the business could not accommodate.[28]SM had further discussions with Mr Sneddon about whether any alternatives could be offered and by email dated 12 March 2024 (p142) Mr Sneddon set out his reasons why he could not identify any alternative. These reasons are fundamentally the same as those he had set out previously but he gives more information about the volume of cars being received; there were 985 cars received at the auction house in the week commencing 26 February 2024 and 1054 in the week commencing 4 March 2024 which amounted to an average of 204 a day. Mr Sneddon provided SM with updated figures on the number of cars received each day in March 2024 by email dated 26 March 2024 (p153).[29]SM also discussed the claimant’s request with Mark Stewart who was the commercial director at Central Car Auctions. Mr Stewart considered that the respondent could offer the claimant a later start time on two days a week. SM was aware that the claimant had indicated this would not be suitable but decided to put it to him so that he was aware that this was an option.[30]SM decided to refuse the claimant’s flexible working request and set out her decision in a letter dated 27 March 2024 (pp154-156). She effectively adopted the reasons given by Mr Sneddon in his earlier emails. She set out the offer of a later start time. The letter also set out the claimant’s right of appeal.[31]The claimant went on sick leave on 28 March 2024 and was absent from work until he resigned by email dated 30 August 2024 (p237).[32]The claimant appealed the decision to refuse his flexible working request by email dated 28 March 2024 (p169-170). The email sets out the following grounds of appeal:a. The claimant had been asked to compromise during the meeting to discuss his request and he had agreed to do so but the respondent had then compromised his compromise (a reference to the offer of a later start time).b. The claimant had informed the respondent that a later start time was not possible because the gym was busy at that time but no-one had listened to him.c. The occupational health report had advised that a flexible working request needed to be granted or he would have high absence.[33]CC was appointed to hear the claimant’s appeal and she met with him and his partner, Ms Wild, on 15 April 2024. A transcript of the meeting is at pp176- 180 and is agreed to be an accurate record of the meeting. The claimant explained why exercise was important to him and why he could not attend the gym in the morning. However, other than in one respect, the transcript does not record the claimant disputing the respondent’s reasons for refusing his request. The one issue which he did raise was the fact that other employees working as valets had finished early in the past. This was a reference to the agency staff and staff on loan from other branches who had been used to cover shortfalls in the staffing at the auction house.[34]After the meeting, CC carried out further investigations with SM and Mark Stewart which are recorded at pp181-183 and p184, respectively.[35]CC issued her decision by letter dated 9 May 2024 (pp185-190) and confirmed that the appeal had not been upheld. The reasons for this are not relevant to the issues to be determined in this case and so, for the sake of brevity, the Tribunal does not propose to set out the detail of this.[36]At the same time as the appeal process was taking place, LMcM had been appointed to carry out welfare meetings in relation to the claimant’s absence. She met with the claimant and his partner on 16 May 2024. A transcript of the meeting is at pp206-225 and it is agreed that this is an accurate record of the meeting.[37]The transcript is lengthy and much of what is said is the claimant setting out his view of how the respondent was treating him. It goes over ground already covered in the flexible working process and appeal with the claimant repeating many of the points he had made in that process (for example, that he was offered a later start time when he had explained that this was not suitable).[38]The relevant discussion begins at p220 when it is explained that the claimant has been in contact with a veterans organisation who were helping to organise in person therapy appointments for the claimant to help with his PTSD and that he would need time off for these appointments. LMcM clarifies with the claimant that no appointment has been arranged yet (p221) and asks him (or his partner) to provide the date when it is received so that the respondent can look at what support they can provide (p222 and a repeat request on p223).[39]LMcM sent a letter dated 24 May 2024 (pp226-227) to the claimant summarising what was discussed at the meeting. At p227 at the second bullet point, she records that the claimant was on a waiting list for psychology sessions and that she had asked him to let her know once he received an appointment. She then sets out the following at the third bullet point: “I discussed with you next steps, however you advised that if you were to return to work you would require a half day to attend your psychology session as this will be in an in person appointment, as well as the acceptance of your original flexible working request. However, I did advise during our call that due to business requirements this request could not be accommodated.”[40]There was no immediate reply to this letter. On 20 June 2024, LMcM emailed Ms Wild (the claimant had asked for all correspondence to go through her) asking if the claimant had received an appointment for his psychology sessions. Ms Wild replied the same day saying that there was a waiting list of 18 weeks for psychology appointments. She raised the issue of the claimant’s flexible working request. LMcM replied on 21 June 2024 explaining that the flexible working process had concluded and that she was looking to facilitate his return to work and what support could be provided. Ms Wild replied later that same day stating that all requests for support had been refused and that “we have it in black and white you won’t even allow him to attend his therapy”. This is a reference to the third bullet point in LMcM’s letter of 24 May 2024. The email exchange between LMcM and Ms Wild is at pp228-230.[41]On 21 July 2024, LMcM emails Ms Wild (p234) asking for up-to-date information about the claimant’s health. In this email she states that there had been a discussion about the therapy appointments and that this was something that the respondent could look at once the dates of the appointments had been confirmed. She refuted the suggestion that she had said that the claimant could not attend these appointments and that this could be discussed as part of any return to work.[42]The claimant resigned with immediate effect by letter dated 30 August 2024 (p237). The reason given by the claimant for this resignation was that the respondent had allegedly taken no effective measure to accommodate his needs despite repeated requests for reasonable adjustments. Submissions[43]Both parties produced written submissions and supplemented these orally. For the sake of brevity, the Tribunal does not intend to set out the submissions in details. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.
Relevant Law
[44]Disability is one of the protected characteristics covered by the Equality Act 2010 and section 6 of the Act defines disability as a physical or mental condition which has long-term, substantial adverse effects on a person’s dayto-day living activities.[45]The duty to make reasonable adjustments is set out in s20 of the Equality Act with s21 making a breach of the duty an unlawful act. The relevant provisions of s20 are: 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 (PCP) 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.(4) …(5) …(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.[46]The test of reasonableness in relation to adjustment is an objective one and it is the Tribunal’s view of what is reasonable that matters (Smith v Churchills Stairlifts plc 2006 ICR 524, CA).[47]The Equality and Human Rights Commission’s statutory Code of Practice on Employment sets out the following factors which can be taken into account when considering the reasonableness of any adjustment:a. the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step);b. the extent to which it was practicable for the employer to take the step;c. the financial and other costs that would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of its activities;d. the extent of the employer’s financial and other resource;e. the availability to the employer of financial or other assistance in respect of taking the step; andf. the nature of the employer’s activities and the size of its undertaking.[48]In relation to the duty to make adjustments, the degree to which any adjustment would overcome the disadvantage to the claimant is relevant to whether the adjustment is reasonable (HM Prison Service v Johnson [2007] IRLR 951). Further, the duty is intended to integrate disabled people into the workplace and this is also relevant to whether any adjustment is reasonable (O'Hanlon v Revenue and Customs Comrs [2007] IRLR 404).[49]The Tribunal will deal with each of the PCPs relied on by the claimant in turn. Before doing so, the Tribunal considers that some preliminary comments might assist in clarifying what issues the Tribunal is deciding and, more importantly, what it is not deciding.[50]It was clear from the evidence that there had been issues arising with the claimant’s employment prior to the events giving rise to this claim and that he still had concerns about these during the process relating to his flexible working request (and, indeed, at the present hearing). These issues had clearly affected his view of the respondent’s subsequent actions which are the subject of his claim.[51]However, the Tribunal is not dealing with a claim about these earlier matters and is only determining the substantive issues set out at the beginning of this judgment. Further, these earlier matters had no bearing on the actions and decisions of the respondent giving rise to this case. The Tribunal has not, therefore, made any findings of fact about these earlier matters and come to no conclusions about them.[52]With all that being said, the Tribunal will now address the issues which it does have to determine.[53]In respect of the first PCP, the Tribunal is satisfied that the respondent did apply a PCP that required the claimant to work his contracted hours. This is the term of the claimant’s contract with the respondent and, unless and until both parties agreed to vary that term, these were the hours which the respondent required the claimant to work.[54]Mr McQueen sought to argue that the respondent did not apply the PCP because they had proposed a later start time for the claimant on two days a week in response to the claimant’s flexible working request. However, the Tribunal considers that this proposal is more properly seen as an adjustment being made (or proposed) to the PCP which had been applied up to that point; it does not retrospectively remove the PCP. The question is then whether that adjustment overcame the disadvantage to the claimant. If it did not then the PCP and the consequent disadvantage still apply to the claimant. The Tribunal will address below the issue of whether the proposed adjustment overcame the disadvantage.[55]In terms of the substantial disadvantage, there was some confusion about this in the evidence. At the time of the events giving rise to the claim (in particular, during the internal process dealing with the claimant’s flexible working request), the disadvantage described by the claimant was one of work-life balance. He set out a position that by the time he got home from work, had something to eat, went to the gym and returned home then he was going straight to bed rather than spending time with his partner. The discussion around his flexible working request that this would allow him to finish work earlier and so attend the gym earlier giving him more time at home.[56]However, in his evidence at the present hearing, the claimant stated that he was not attending the gym at all because, at the time of the evening when he was able to attend, the gym was busy and that one of the manifestations of his PTSD is that he struggles to cope with busy environments.[57]The Tribunal does not consider that the claimant was seeking to be dishonest about the issues he faced in maintaining his exercise regime or that he was changing his position. The Tribunal considers that it is more likely that the true position, as is often the case, lies somewhere in the middle and that the claimant was, at times, unable to attend the gym at all and, at others, was attending at times which meant that he had little time at home.[58]In any event, in relation to the issue of disadvantage, it is not a question of whether the claimant was wholly prevented from attending the gym or not. Section 212(2) of the 2010 Act states that the word “substantial” means more than minor or trivial and the Tribunal considers that the disadvantages which the claimant describes (either being unable to attend the gym or any such attendance restricting his time at home) to be more than minor or trivial matters in the circumstances.[59]The question of what disadvantage the claimant faced is relevant to the question of whether the proposed adjustment was reasonable and the Tribunal will address this further below.[60]The Tribunal is satisfied that the claimant was disadvantaged as a disabled person; his attendance at the gym to exercise was one of the ways in which he sought to cope with the effects of his disability and so there is a clear link between this and his status as a disabled person in terms of the Equality Act.[61]In these circumstances, the Tribunal is satisfied that the duty to make reasonable adjustments was engaged in respect of the first PCP.[62]The question is then whether the respondent failed to engage with the duty. The respondent did propose to adjust the claimant’s start times on two days to allow him to attend the gym before work. They did, therefore, seek to make an adjustment but this did not overcome the disadvantage because the claimant maintained that this would not allow him to attend the gym because it was too busy in the mornings to the extent that it could trigger the symptoms of his PTSD.[63]The question then becomes whether there was any other adjustment which it was reasonable for the respondent to make which would have overcome the disadvantage to the claimant. The claimant relies on the adjustment of reducing his finish time by one hour on three days of the week.[64]It is in relation to this issue that the question of the disadvantage which the claimant faced becomes relevant. There is no question that an earlier finish time would allow the claimant to attend the gym earlier and give him more time at home afterwards.[65]However, in relation to the gym being too busy at the times when he was able to able to attend, there was no evidence led by the claimant that the gym was less busy at earlier times to the extent that he could attend. The Tribunal is aware that people are more likely to attend the gym in the evening after work and it is not obvious, on the face of it, that there would be less people attending the gym an hour earlier when this would still fall after the end of the working day.[66]In these circumstances, there is no evidence from which the Tribunal could draw any inference that the proposed adjustment would overcome the disadvantage of the claimant not being able to attend the gym at all.[67]Further, there was no evidence led by the claimant as to how often he was unable to attend as compared to when he did attend but had less time at home. It was his evidence at the Tribunal that he used an app that indicated how busy the gym was at any given time allowing him to decide if he would attend or not. The Tribunal infers from this that his attendance was decided upon in an “as and when” basis with no real pattern or predictability.[68]This makes it impossible for the Tribunal to assess the degree to which the proposed adjustment would have avoided the disadvantage of the claimant being unable to attend at all. There is, therefore, a question mark over the issue of whether the adjustment would have avoided the disadvantage to the claimant and so whether it was reasonable.[69]In any event, the Tribunal is persuaded by the evidence from the respondent that allowing the adjustment would have had an adverse effect on its activities. Although they ostensibly advanced three reasons for this, the Tribunal considers that this is, in fact, the same reason labelled in three different ways. At its core, the respondent’s position is that reducing the claimant’s hours would have an adverse impact on their ability to get cars coming into the auction house cleaned and ready for the next day.[70]The Tribunal notes the evidence (p153) produced by the respondent (which was not disputed by the claimant) about the numbers of cars being brought to the auction house each day in the weeks after the claimant made his flexible working application. This showed numbers ranging from 124 to 231 cars needing to be cleaned which is a considerable number. There was no suggestion by the claimant that these weeks were outliers or in some way unusually busy.[71]There were 6 employees working on the process of cleaning the cars and the respondent is correct that reducing the number of employees would have a consequent effect on the number of cars which can be cleaned. The Tribunal considers that it would axiomatic that this would increase the work on the other valets and would be likely to lead to them being unable to complete their daily tasks.[72]There was also evidence from the respondent that the number of cars coming to the auction house increased in the afternoon and so a reduction in staff at the end of the day would have a greater impact than it would earlier in the day (this being why an earlier start time could be accommodated). As noted above, it would place greater pressure on the other staff to wash the cars being received and lead to a backlog or cars not being washed ready for the next day.[73]The claimant sought to dispute this in his evidence and asserted that his bay would become quieter by 4.30pm and that it would be closed up by 5pm. However, he had never raised this point during the internal process and it has always been the respondent’s position that they were busier in the afternoon. If this was incorrect then the Tribunal considers that the claimant would have raised his position in his appeal but he did not.[74]Further, the claimant’s evidence was not that he simply ceased work at 5pm and was doing nothing until he could leave at 5.30pm. He stated that he was sent to carry out other tasks by his supervisor once there were no more cars to wash.[75]It was common ground that, for a period, the valeting team was not fully staffed and the work was being covered with agency workers or staff from other branches who had earlier finish times. It was also common ground that this position was not sustainable because it put undue pressure on the fulltime valets such as the claimant and was a temporary fix whilst the respondent recruited additional full-time staff.[76]The Tribunal is, therefore, satisfied that there was a real business need for the respondent to have all 6 employees available up to 5.30pm in order for the valeting work to be carried out and all the cars made ready for auction the next day.[77]Further, the Tribunal agrees with the respondent that the adverse impact on the valeting work could not have been avoided by other means such as using agency staff or staff loaned from other branches. The Tribunal, in its industrial knowledge, considers that it would be very difficult to find people to work for one hour in the late afternoon on three days a week. There is also the issue which the respondent had previously with loan staff where they had earlier finish times.[78]For all these reasons, the Tribunal considers that the proposed adjustment was not one which it was reasonable for the respondent to have made; there is not sufficient evidence that it would have avoided the disadvantage to the claimant; it would have disrupted the respondent’s activities to such a degree that it would be unreasonable for the respondent (and its employees) to accommodate.[79]The claimant has not suggested any other adjustments and the Tribunal has not identified anything else from the evidence which could have been done by the respondent that would have overcome the disadvantage to the claimant.[80]The Tribunal, therefore, considers that, in relation to the first PCP, there were no adjustments which would have overcome the disadvantage to the claimant which it would have been reasonable for the respondent to make.[81]Turning to the second PCP, it was clear to the Tribunal that the claimant, throughout the case and the events giving rise to it, placed great reliance on the armed forces covenant.[82]The Tribunal considers that it would be of assistance to set out some preliminary comments about the armed forces covenant. The covenant is aspirational in nature and does not place any legally enforceable obligations on any employer who signs up to it (for example, no claim can be founded in the Employment Tribunal in relation to an alleged breach of the covenant unless that also amounted to a breach of any employment legislation such as the Equality Act). Further, the covenant does not set out any specific actions that an employer must take but, rather, sets out broad principles that members of the armed forces should not face any disadvantage as a result of their service and that some special treatment may be appropriate in certain circumstances.[83]The Tribunal does not consider that, in the wider policy context, there was any evidence that the respondent’s flexible working policy does not take account of the covenant. The Tribunal was not taken to the policy in evidence, either in the statement of agreed facts or in the oral evidence at the hearing. It cannot, therefore, make any finding in fact about whether the policy itself fails to take account of the covenant.[84]In relation to the claimant’s specific circumstances, there was no evidence that the respondent failed to take account of the covenant in relation to the claimant having time off to attend therapy. The reason for this is because no decision about this had been taken by the respondent prior to the claimant’s resignation.[85]The fact that no decision had been made is a fundamental flaw in the claimant’s case in relation to the second PCP. He relies on a disadvantage (that is, not being able to attend therapy) which simply did not apply to him. At the relevant time, the date and time of his therapy appointments had not been confirmed to him and so there was no time off required.[86]The claimant’s position that time off for therapy was being refused is based on a single sentence in Ms McMath’s letter of 24 May 2024 at p227; the previous sentence sets out the claimant explaining that he would need time off for therapy as well as acceptance of his flexible working request; the relevant sentence says that “this request” could not be accommodated.[87]Taken on its own, this sentence is, at best, ambiguous. The Tribunal can see how the claimant could read the phrase “this request” as meaning everything that the claimant had asked for as set out in the previous sentence. However, it can also be read as a reference to the flexible working request (emphasis added).[88]However, this sentence has to be read in the wider context of what was discussed at the meeting of 16 May and what else was said in the letter of 24 May 2024. It was quite clear from those matters that Ms McMath was asking the claimant for the date of his appointment in order to see what the business could accommodate. When considered in this context it was clear that a decision was still to be made about time off for therapy appointments.[89]In the Tribunal’s view, the position is placed beyond doubt by Ms McMath’s email of 12 July 2024 (p234) sent in response to emails from the claimant and his partner in which they say that it had been said that the claimant would not be given time-off to attend his therapy sessions. In her reply, Ms McMath expressly states that she had not said that the claimant could not attend therapy appointments during working hours and that, once the date of any appointment was confirmed, there would be a discussion as to what the respondent could help to facilitate.[90]In these circumstances, the Tribunal does not consider that the duty to make reasonable adjustments was engaged in respect of the second PCP; there is no evidence that the respondent actually applied the PCP to the claimant and, in any event, the claimant was not actually subjected to the disadvantage he relies on.[91]For all these reasons, the Tribunal considers that the claims under the Equality Act 2010 are not well-founded and these are hereby dismissed.