Ms M Reilly v Maximus UK Services Ltd: 6001728/2023

EMPLOYMENT TRIBUNALS

Case No 6001728/2023

Between

Ms M ReillyClaimant

Maximus UK Services LtdRespondent

Before

Employment Judge

Date 26 September 2024

JUDGMENT

The judgment of the Tribunal is that:- the claimant was a disabled person by reason of dyslexia at all relevant times for the purposes of section 6 of the Equality Act 2010.

REASONS

[1]By a claim form presented to the Tribunals on 6 September 2023, the claimant (date of birth – 25/01/1961) brought complaints of unfair dismissal and disability discrimination. The claimant, who was at all relevant times a registered medical practitioner, states on her claim form that she was employed by the respondent between 20 September 1999 and 23 May 2023 as a functional assessor. The claimant subsequently confirmed at the hearing Case no 6001728/2023 2 that she contended that her employment with the respondent ended on 30 May 2023.

[2]The claimant commenced the ACAS Early Conciliation process on 28 July 2023 and the EC certificate was issued by ACAS on 29 August 2023.

[3]The claimant contended in her claim form that she was a disabled person for the purposes of section 6 of the Equality Act 2010 (“the 2010 Act”) by reason of dyslexia.

[4]The allegations are denied by the respondent including, in response to the disability discrimination claim, that the claimant was at any relevant time a disabled person for the purposes of the 2010 Act by reason of dyslexia. The case management hearing on 29 February 2024

[5]This matter was the subject of a case management hearing (“CMPH”) on 29 February 2024 and the associated Order is at pages 69 -83 of the bundle which was prepared for this hearing (“the bundle”). This matter was listed at that time for a final hearing for 5 days commencing on 18 November 2024 (including to determine any extant disability discrimination claim). The Tribunal also clarified the Issues in this case and listed the matter for a Preliminary Hearing to determine any ongoing dispute as to disability with associated directions.

[6]The Tribunal recorded in the Order that the claimant was bringing claims of disability discrimination pursuant to sections 15 and 20/21 of the 2010 Act (discrimination arising from the claimant’s disability and failure to make reasonable adjustments). The Order recorded that:-(1) The unfavourable treatment relied upon by the claimant for the purposes of section 15 of the 2010 Act is the claimant’s dismissal . The Order recorded that it was the claimant’s case that her dismissal arose in consequence of her disability of dyslexia as she was dismissed for poor performance which further arose because it was difficult for her to maintain the speed and quality of her written work because of her dyslexia.

(2) The Order further recorded, in respect of the claimant’s claim that the respondent had failed to make reasonable adjustments, that the PCP relied upon for such purposes was that the claimant had to deliver work within set time frames and of a set quality and that this placed her under a substantial disadvantage compared to someone without her disability as the claimant needed more time / adjustments/ assistance to deliver her work (because of her dyslexia). Case no 6001728/2023 3

[7]The claimant subsequently provided a Disability Impact Statement, which is at pages 84 – 86 of the bundle.

[8]The respondent subsequently confirmed its position on disability as stated in its email dated 11 April 2024 (at page 87 of the bundle) in the light of such statement. In summary, the respondent accepted that the claimant had dyslexia at all relevant times and that it was a long-term condition. The respondent did not however accept that the condition had a substantial adverse effect on the claimant’s normal day to day activities. The respondent confirmed at this hearing that its position continues to be that, on the evidence, the claimant’s condition is mild and that its effects on the claimant’s ability to carry out normal day to day activities are no more than minor or trivial.

[9]The purpose of this Preliminary Hearing is therefore to determine the Disability issue and to deal with any further case management issues. It was agreed, on the basis of the Issues as set out in the Order, that the relevant dates of the alleged acts of disability discrimination are from 31 January 2023 to 30 May 2023 (although, as confirmed above, the respondent accepts the long term nature of the claimant’s dyslexia). Documents

[10]The Tribunal has been provided with the bundle which includes the Disability Impact Statement from the claimant referred to above. This statement has been treated as the claimant’s witness statement for the purpose of this Preliminary Hearing and the claimant gave evidence to the Tribunal accordingly. The Tribunal has also had regard to the pleadings in this case which were not included in the bundle. The conduct of the hearing

[11]The claimant had difficulties connecting to the Preliminary Hearing which, with assistance of the Tribunal / her persistent, she was able to resolve. The technical difficulties delayed the start of this Preliminary Hearing and this Judgment was therefore reserved.

[12]The claimant was asked whether she required any reasonable adjustments to assist her participation in the Preliminary Hearing but indicated that she did not require any specific adjustments other than that she might require matters to be clarified during the course of the hearing.

FACTS

[13]The following facts are made by the Tribunal strictly for the purposes of the Disability Issue. Case no 6001728/2023 4

[14]The claimant, who was at all relevant times a registered medical practitioner, worked for the respondent/its predecessors as a medical assessor completing benefit assessments from 1999.

[15]The claimant was first diagnosed with dyslexia in May 2018, at the age of 57, following a referral to occupational health by the respondent’s predecessors in the light of the difficulties which the claimant was experiencing at work as referred to in the claimant’s End of Year Review for 2017/2018. The End of Year Review, which is at pages 35 – 48 of the bundle, recorded that the claimant had been on a formal performance plan for quality and performance since November 2017 . It was further recorded that the claimant’s average case duration for a Workplace Capability Assessment (“ WCA”) was 90 minutes which was significantly outside business expectations and that notwithstanding the formal performance improvement plan which had been in place since November 2017 there was no indication that timings were being reduced. Dyslexia Diagnostic Assessment

[16]Pursuant to such referral, the claimant underwent an assessment by Lexxic (adult dyslexia and neuro differences psychological services) in April 2018. Their dyslexia diagnostic assessment report dated 4 May 2018 (“the Lexxic Report”) is at pages 5-31 of the bundle.

[17]The Lexxic Report advised that:- “Dyslexia is a specific learning difficulty that mainly affects the development of literary and language related skills. It is likely to be present at birth and to be life- long in its effects. It is characterised by difficulties with phonological processing, rapid naming, working memory, processing speed, and the automatic development of skills that may not match up to an individual’s other cognitive abilities (British Dyslexia Association)” and “Executive function is a set of mental skills that help get things done and are controlled by the frontal lobe in the brain. Executive function helps someone; manage time, pay attention, switch focus, plan and organise, and remember details”

[18]The Lexxic Report recorded that the claimant had advised that the assessment had been initiated because of the difficulties which she had experienced using a computer-based system to complete assessments and that her main area of difficulty was with the speed of working whilst maintaining accuracy as she reported taking longer to complete r tasks than her colleagues. The Lexxic Report also recorded that the claimant had reported a number of further difficulties including that she struggled to get her ideas down in writing at speed and had difficulties with time management. Case no 6001728/2023 5

[19]The claimant underwent a series of diagnostic tests for the purposes of the Lexxic Report. Details of the outcome of the tests which the claimant underwent are at pages 12 -18 of the bundle. In brief summary, the claimant was scored from average ( in 3 areas) to very superior/ Upper Extreme compared with her peers across the diagnostic tests (pages 12 -18 of the bundle).

[20]Overall, the Lexxic Report recognised that the claimant had very superior cognitive processing capabilities in verbal comprehension and superior cognitive processing capabilities in perceptual reasoning, working memory and processing speed in comparison with her peers. The Lexxic Report also advised however that in the light of the claimant’s performance on attainment tasks in comparison with the claimant's overall cognitive abilities, the claimant had a specific learning difficulty- namely dyslexia which it described as mild in severity. The Lexxic Report further advised that the claimant had also shown difficulties with executive functioning (page 8 of the bundle).

[21]The Lexxic Report advised that the claimant had shown what it described as “ a significant difference at the 0.05 level between her Verbal Comprehension ability, and with her Processing Speed and Working Memory. This shows that she has difficulties processing both auditory and visual information within her short-term memory”. The Lexxic Report further recorded that the claimant had reported difficulties with her visual short term memory including that she struggled to complete computer based assessments accurately at speed and that she had also reported difficulties concentrating with background noise (page 7 of the bundle).

[22]The Lexxic Report further advised that the claimant “also shows a significant difference at the 0.05 level between her Verbal Comprehension ability and her Perceptual Reasoning. She had difficulty with tasks that assess nonverbal fluid reasoning and the ability to mentally organise visual information Performance on these tasks also may be influenced by visual spatial perception and visual perception – fine motor coordination, as well as planning ability”. The Lexxic Report further recorded that the claimant had reported life long difficulties with time management and organisation including that she was often late for events and struggled with losing items (page 7 of the bundle)

[23]The Lexxic Report further advised that the claimant showed difficulties with phonological processing and decoding of sounds in words that were unfamiliar and complex and with reading sight words at speed in comparison to her overall Verbal Comprehension ability level. Case no 6001728/2023 6

[24]The Lexxic Report made a number of recommendations going forward (page 19 of the bundle) including that the claimant should obtain a phone based Workplace assessment to identify the support she needed within her job role together with online training to assist the claimant in managing her difficulties, coaching to support the claimant in her job role, the provision of coloured overlays and text to speech software and training. The Lexxic Report further recommended considering giving the claimant (subject to the examining board’s discretion) the option of 25% extra time when completing examinations. The Occupational Health Report dated 25 June 2018

[25]The claimant was the subject of an associated occupational health report dated 25 June 2018 (“the OH Report”) which is at pages 32 – 33 of the bundle. The OH Report recorded that the claimant had been referred for an occupational health review in the light of her recent diagnosis of mild dyslexia. The OH Report, which was prepared by a Consultant Occupational Physician, also recorded that the referral had stated that the possibility of a possible diagnosis of dyslexia had been raised as a result of identified performance issues and that this had led to the diagnosis of mild dyslexia and associated recommendations for future working.

[26]The OH Report recorded a discussion with the claimant regarding the work being undertaken by her and the difficulties which she reported experiencing when undertaking WCA’s on the LIMA (computer) platform. The OH Report further recorded that it appeared that concerns had been raised regarding the claimant’s work on WCAs including that it was recognised that she was taking longer to complete the required assessments than was normally allowed and that after trying to work faster quality concerns were raised with regard to her output.

[27]The OH Report endorsed the recommendations for future working which had been made in the Lexxic Report and in addition, suggested the consideration of a possible permanent reduction in targets with respect to WCA work given that the claimant was suffering from a permanent condition which acted as a barrier to her achieving what had been requested in the time allocated together with the possibility of a reduction in workload/ the allocation of less WCA work in preference to other areas covered by her job role in respect of which the author of the OH Report was unaware of any performance concerns. The claimant’s End of Year Review for 2017/ 2018

[28]The claimant underwent an End of Year Review for 2017/2018. The associated review document, which is at pages 35-48 of the bundle, recorded concerns regarding the quality of the claimant’s WCA work and her referral for testing for dyslexia. Case no 6001728/2023 7 The claimant’s further work review

[29]The claimant underwent a further work review towards the end of 2018, the associated Review form dated 29 January 2019 is at pages 49 – 56 of the bundle. The review form recorded the ongoing difficulties which the claimant was experiencing completing WCA assessments including that although the claimant’s average case duration on WCA was 92 minutes ( 75minutes plus 25% accommodation for her dyslexia) she was still unable to achieve the reduced target of 5 cases a day and that the quality of her reports was below expectations. The review form also recorded that the claimant was reliably on time for her sessions and completed her mandatory training within required time scales. Workplace Assessment Review

[30]The claimant was the subject of a Workplace assessment and associated subsequent report (“the WA Report”) by a disability assessor from Ability First in January 2023. The WA Report, the copy of which is undated in the bundle but which the Tribunal understands is dated 31 January 2023, is at pages 57 - 61 of the bundle.

[31]In brief, summary the WA Report summarised the background to the claimant’s situation including that she was experiencing ongoing difficulties achieving work targets notwithstanding previous adjustments and was currently only achieving 2 assessments per day. The WA Report recorded that the claimant reported that the barriers centred round her typing speed and accuracy and that she spent excessive time editing reports. The WA Report further recorded that the claimant speculated that the impact of her dyslexia on her typing ability and thought to manual output processing speed might be the reason for her inability to achieve her targets and that she anticipated that if she was able to improve the speed of her written work then the spoken element of her assessment would also become more efficient as she would have momentum in her work.

[32]The disability assessor recommended that the claimant be provided with the text software Dragon Naturally Speaking to allow the claimant to dictate her written work in order to improve its efficiency. It was further recommended that the claimant be provided with two half day technical training sessions on Dragon and that the adjustment be reviewed after three to six months in order to determine whether additional support was required. The disability assessor also recommended the preparation of a disability passport for the claimant. In April/May 2023 the claimant discussed her work difficulties with the disability needs assessor during the training sessions during which he recommended to the claimant further strategies such as the use of mind maps/spider diagrams and colour coding to reduce the demand on her working memory. Case no 6001728/2023 8 Other matters

[33]The claimant described in her Disability Impact Statement / oral evidence the difficulties which she had experienced at work by reason of her dyslexia including, in particular during the last two years of her employment with the respondent, when she said that her work was focused on WCA work by telephone. The claimant further described that this activity, involved writing real time reports on the computer whilst talking with the client on the telephone and which meant that the information had to be processed quickly with the production of a typed live report. The claimant contended that this magnified the impact of her dyslexia as she found it difficult to undertake this process accurately at speed including as it involved the reading and processing of multiple and often lengthy documents at speed. The Tribunal accepts the claimant’s evidence regarding such matters which are consistent with the difficulties previously identified in the Lexxic Report including regarding the claimant’s processing speed and working memory and associated difficulties with processing auditory and visual information within her short-term memory.

[34]The claimant also described in her Disability Impact Statement / oral evidence the difficulties which she says she experienced in her non work related day-to-day life by reason of her dyslexia. The claimant described difficulties which she experienced sending text messages including that this had led to misunderstandings with people when arranging to meet and that she used emails in preference as she could compose and edit them more clearly. The claimant also described the difficulties which she had experienced with regard to reading and the management of administrative tasks. The claimant described how it typically took her two to three months to finish a paperback novel. The claimant also described how she undertook administrative tasks by telephone wherever possible, used a blackboard for keeping shopping lists (which she then photographed) and used different coloured pens and drew pictures on her calendar to help her to memorise things. The claimant also described difficulties with time management which she said had made her late for social arrangements and disrupted travel plans including missing a ferry because she had lost track of time. The claimant accepted however that she was able to attend for work on time including when it was necessary for her to travel to different venues. The Tribunal accepts that the claimant experienced the contended difficulties as described above which are consistent with the matters identified in the Lexxic Report including in respect of the claimant’s difficulties with executive functioning. SUBMISSIONS

[35]The Tribunal has had regard to the oral closing submissions of the parties which are summarised briefly below. Case no 6001728/2023 9 The respondent’s submissions

[36]The respondent confirmed that it accepted that claimant had dyslexia and that it was a long-term condition (including at the agreed relevant times of 31 January 2023 to 30 May 2023). The respondent also confirmed that it had had knowledge of the claimant’s dyslexia since May 2018. The respondent however disputed that the claimant’s dyslexia, which had been diagnosed as “mild dyslexia” had had, at any relevant time, a substantial adverse effect on her ability to carry out normal day to day activities for the following reasons:-(1) The claimant’s (mild) dyslexia does not meet the requisite substantial adverse effect for the purposes of section 6 of the 2010 Act as amplified by Section B of the Guidance on matters to be taken into account in determining questions relating to the definition of disability 2011 (“the Guidance”) and in particular, paragraphs B1 – B3 and B7 together with the examples of matters which it would and would not be reasonable to regard as having such an effect. The claimant’s difficulties do not for example, constitute a persistent and significant difficulty in reading or understanding written material. Further, minor problems with writing and spelling including, an inability to fill in a long detailed technical document and an inability to concentrate on tasks requiring application over several hours, are cited as examples in the Guidance of factors which it would not be reasonable to regard as having a substantial adverse effect on normal day to day activities.

(2) This case is distinguishable from the authority of Paterson in which it was accepted that Mr Paterson was placed at a substantial disadvantage compared with his peers with regard to his participation in the examination process for promotion and required 25% extra time.

(3) In this case the Tribunal should focus on the things that the claimant says that she can and cannot do as addressed below.

(4) Reading – the Lexxic Report found that although the claimant had difficulty in some areas her ability was average or above that of her peers. Further, it is stated in the Appendix to the Guidance that it would not be reasonable to treat minor problems with writing or spelling as having a substantial adverse effect on normal day to day activities.

(5) Again the Lexxic Report found no significant issues with regard to the claimant’s writing skills.

(6) The claimant’s evidence with regard to use of a shopping list – the claimant did not show how this was related to her dyslexia / how it had a substantial adverse effect on her normal day-to-day activities.

(7) The claimant’ s evidence regarding the use of a calendar - again, it was not clear how the claimant contended that this related to her Case no 6001728/2023 10 dyslexia and/or or how it had a substantial adverse effect on her normal day-to-day activities.

(8) The claimant’s evidence regarding her alleged difficulties with time management- the examples which the claimant gave did not relate to her day to day-to-day activities / only happened on limited occasions. It is clear from the review for 2017/2018 (at page 39 of the bundle) that the claimant was able to time manage in general terms. Further the manager’s comments in the subsequent disability assessment (at page 54 of the bundle) indicate that the claimant did not have any time management issues which could constitute a substantial adverse effect on the claimant’s normal day-to-day activities.

(9) The claimant’s evidence regarding the use of mind maps -the Lexxic Report does not support the claimant's evidence that she had a problem with her working memory. The Lexxic Report (at page 13 of the bundle) states that the claimant performed better than approximately 93% of her peers in this area.

(10) The claimant’s evidence regarding texts - the claimant has not explained how this relates to her dyslexia or how it amounts to a substantial adverse effect on their normal day-to-day activities.

(11) The main focus of the claimant’s case is on the completion of WCAs. The claimant contends that she was able to perform other benefits assessments well. The crux of the claimant’s difficulties with the WCA assessments relate to the difficulties which the claimant had in operating the LIMA computer platform which is not related to the claimant’s dyslexia / did not have a substantial adverse effect on the claimant’s normal day-to-day activities.

(12) It is not clear why the claimant was allowed to reduce the number of WCAs. The difficulties which the claimants encountered with regard to the WCAs were not because of her dyslexia including as the evidence does not substantiate the claimant’s contentions that the problems which she had in relation to the WCAs were related to speed.

[37]The respondent further contended that, in all the circumstances, the claimant had not established that her dyslexia had more than a minor or trivial effect on her normal day-to-day activities and had therefore failed to establish that her dyslexia had the necessary substantial adverse effect on her normal day to day activities as required for the purposes of section 6 of the 2010 Act. Case no 6001728/2023 11 The claimant’s submissions

[38]In summary the claimant made the following submissions:-(1) The Lexxic Report identified difficulties in the claimant’s working memory and made various recommendations including coaching to support the claimant with the management of her dyslexia.

(2) The Tribunal's attention is drawn to paragraph 68 of the Paterson case and in particular, that the proper basis for establishing whether the disadvantage was substantial is to compare the effect on the individual of the disability by considering how he/ she carries out the activity compared with how he/ she would do it if not suffering the impairment.

(3) The difficulties which the claimant experienced with regard to reading and writing is with respect to the processing of information at speed which is because of her dyslexia.

(4) Time management - the claimant would leave early in the morning to make sure that she got to any venues on time

(5) The Lima platform - the issue is not the computer system but the difficulties which the claimant experienced completing the assessments at speed by reason of her dyslexia as was recognised by the OH recommendations regarding the coaching and dragon software.

(6) The shopping list by way of the use of the blackboard/ colour coding on calendar – the claimant has been using these for a long time as they seem to help her to manage her dyslexia.

(7) The claimant had been able to deal with face to face assessments. The claimant’s difficulties with the assessments intensified when she was required to undertake telephone assessments for WCA which were magnified because of her difficulties in processing information at speed. This was why the claimant was referred back to occupational health in 2023. This is supported by the fact that when the claimant undertook assessments by way of physical examinations she had no problems as the process proceeded at a slower pace because of the physical assessment and because a bigger percentage of time was allowed for the preparation of the associated report.

(8) The respondent’s comments regarding the claimant’s writing and reading are taken out of context.

THE LAW

[39]The Tribunal has had regard in particular to the following statutory and associated provisions: -(1) Sections 6, 15, 20, 21, 39 and Schedule 1 to the 2010 Act. Case no 6001728/2023 12

(2) The Guidance (including the list of factors contained in the Guidance which it would be reasonable/ not reasonable to regard as having a substantial adverse effect on normal day to day activities).

(3) The following legal authorities: - Goodwin v the Patent Office

[1999] IRLR 4

EAT. Paterson v The Commissioner of the Police for the Metropolis [2007]

UKEAT/0635/06

/ LA EAT.

[40]In summary, the Tribunal has reminded itself in particular of the following: -(1) It is for an applicant/ employee to establish that they were at the relevant time, a disabled person for the purposes of section 6 of the 2010 Act. The relevant time is the date of the alleged act/s of disability discrimination (in this case the agreed relevant period is 31 January 2023 to 30 May 2023 albeit that the respondent in any event accepts that the claimant’s condition was long term) and the evidence should be considered accordingly.

(2) Where disability is in dispute the Tribunal should adopt a structured approach to the issue namely: - (a) did the claimant have a physical or mental impairment at the relevant time (b) did the impairment have an adverse effect on the claimant’s ability to carry out normal day to day activities (which may include the claimant’s activities at work) (c) is the adverse effect substantial. Substantial for such purposes means more than minor or trivial (c) is the effect long term. In this case the respondent accepts that the claimant had (mild) dyslexia at all relevant times( and that it is therefore a long term condition) but disputes that it had a substantial adverse effect on the claimant’s normal day to day activities.

(3) The guidance contained in the Guidance including :- (a) A5 – a disability can arise from a wide range of impairments including dyslexia. (b) B1 (meaning of “substantial adverse effect” ) and B2 (the time taken to carry out an activity), B3 and B7/ B10 (modification of behaviour). (c) D3 ( day to day activities) together with D4, D8, D10 and D19. (d) The Appendix to the Guidance setting out matters which it would and would not be reasonable to regard as having a substantial adverse effect on the carrying out of normal day to day activities. Case no 6001728/2023 13

(4) The guidance contained in the EAT authority of Paterson including that although the Judgment predates the 2010 Act ( and therefore considers the provisions of predecessor Disability Discrimination Act 1995 ) and that there are factual differences between the cases, it nevertheless continues to provide useful guidance on the question of whether an impairment such as dyslexia had a substantial adverse effect on the ability to carry out normal day to day activities in the context of professional work activities. The Tribunal has had regard in particular to paragraphs 22,24, 26, 27,32, 68 and 70. (including that when assessing the adverse effect what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he/ she would carry it out if not impaired. THE CONCLUSIONS OF THE TRIBUNAL

[41]As stated previously, the respondent accepts that the claimant had, at all relevant times, the impairment of (mild) dyslexia) and that it was/ is a long term condition. The other elements of section 6 of the 2010 Act are however disputed.

[42]The Tribunal is therefore required to consider whether the claimant’s condition of dyslexia had an adverse effect on the claimant’s ability to carry out normal day today activities and if so, whether such adverse effect was substantial.

[43]When determining this issue, the Tribunal has considered the matter in accordance with the approach advocated in the Guidance and authorities referred to above. Did the impairment of dyslexia have an adverse effect on the claimant’s ability to carry out normal day to day activities at the relevant time?

[44]The Tribunal has considered first whether the claimant’s condition of dyslexia had an adverse effect on the claimant’s ability to carry out normal day to day activities.

[45]In this case the relevant normal day to day activities relied upon by the claimant are principally work related activities namely, the undertaking of WCA assessments and the preparation of associated reports together with non-work related activities such as organising administrative tasks and shopping, sending texts, and attending social events/ departing for holidays on time. Case no 6001728/2023 14

[46]It is the claimant’s case that she struggled to complete computer-based assessments, which formed part of her normal day to day work related activities, accurately at speed because of difficulties in particular with her processing speed and working memory because of her dyslexia. It is also the claimant’s case that she has difficulties carrying out the other day to day activities identified above because of difficulties with her executive functioning by reason of her dyslexia. The respondent disputes that the claimant’s dyslexia, which was diagnosed as mild, was the cause/ in any event had an adverse effect on any of the claimant’s normal day to day activities as summarised in the above submissions.

[47]The Tribunal has considered first whether the worked related activities relied upon by the claimant namely, the undertaking of WCA assessments and the preparation of the associated reports can properly be regarded as a normal day to day activity for the purposes of section 6 of the 2010 Act. This is disputed by the respondent who says that this is a specialised activity which falls outside the ambit of the 2010 Act.

[48]After giving the matter careful consideration, the Tribunal is satisfied that the claimant’s normal day to day activities included her duties as a functional assessor undertaking telephone WCAs and preparing the associated reports.

[49]When reaching this conclusion, the Tribunal has taken into account that whilst the 2010 Act does not define what is to be regarded as a normal day to day activity, D3 of the Guidance states that day to day activities are “things that people do on a regular basis” with examples such as reading and writing. D3 of the Guidance further states that normal day to day activities can include general work-related activities such as using a computer and preparing written documents.

[50]Further, the Tribunal is satisfied that D8 of the Guidance (relating to specialised activities) does not preclude the work undertaken by the claimant from being considered as a normal day to day activity as notwithstanding the specialised subject matter of the assessments and reports, the activities involved in the undertaking of the assessments and preparation of the reports involve normal day to day activities such as using a computer/ telephone, reading/ reviewing and preparing written documents.

[51]The Tribunal has gone on to consider whether the claimant has established that her dyslexia had an adverse effect on her ability to carry out the day-today activities relied upon, including the work-related activities identified above, which is disputed by the respondent.

[52]The Tribunal has considered first whether the claimant has established that her dyslexia had an adverse effect on her work-related activities namely, on Case no 6001728/2023 15 her ability to undertake the telephone computer based WCA assessments / prepare the associated reports accurately at speed including, for such purposes. how she carried out the activity compared with she would have done so if not having dyslexia.

[53]Having given the matter careful consideration, the Tribunal is satisfied that the claimant has established that her dyslexia had an adverse effect on her ability to carry out the work-related activities identified at paragraph 52 above. The Tribunal is further satisfied that, in the light of the claimant’s high level of achievement recorded in the Lexxic Report in respect of the activities not effected by her dyslexia, she would, on the balance of probabilities, have been able to carry out the telephone computer based WCA assessments and associated reports to the required speed/ standards if she had not had dyslexia.

[54]When reaching this conclusion, the Tribunal has taken into account that the claimant’s dyslexia was diagnosed as mild in the Lexxis Report, together with the overall high scores/ level of attainment achieved by the claimant in the tests undertaken by Lexxis. The Tribunal has also taken into account that it was recognised in the Lexxis Report that the claimant had very superior cognitive processing capabilities in verbal comprehension and superior cognitive processing capabilities in perceptual reasoning, working memory and processing speed in comparison to her peers (pages 5-31 - including at page 8 of the bundle).

[55]The Tribunal has however balanced against the above, its findings concerning the nature of the difficulties experienced by the claimant when undertaking the work related WCA activities as described at paragraph 33 above which are consistent with the associated findings in the Lexxic Report. Further, it is stated in particular in the Lexxic Report (page 7 of the bundle) that the claimant showed significant differences (at the 0.05 level) between her verbal comprehension ability and her processing speed and working memory which indicated that the claimant had difficulties processing auditory and visual information within her short-term memory.

[56]The Tribunal has also taken into account the associated recommendations / adjustments which were made by the respondent in respect of the claimant’s work related WCA activities in recognition of such difficulties. These included the increases in time allocation / reduction in the number of assessments (including the suggestion in the OH Report ( page 33 of the bundle) that the respondent should consider a permanent reduction in the claimant’s targets with respect to WCAs given that the claimant had a permanent condition which acted as a barrier to what was being asked of her in the time allocated together with a possible reduction in the number of allocated cases ). Both of these adjustments were implemented by the respondent ( 25% extra time Case no 6001728/2023 16 allocations per assessment to accommodate the claimant’s dyslexia and reduced target from 6 cases to 5 case per day – page 52 of the bundle).

[57]Further, the Tribunal rejects, in the light of its findings at 55- 56 above, the respondent’s contention that the claimant’s difficulties with the WCA9 assessments arose because of her inability to operate properly the LIMA computer system rather than her dyslexia. The Tribunal has taken into account for such purposes, that no specific LIMA related difficulties are identified in the documentation including that there is no reference to any LIMA related training being requested or offered to the claimant in the OH Report (page 33 of the bundle) or in the subsequent WA Report (pages 57 – 59 of the bundle).

[58]The Tribunal has gone on to consider the effect of the claimant’s dyslexia on the claimant’s remaining day to day activities identified above. The Tribunal is satisfied on the evidence, that the claimant’s dyslexia had at all relevant times an adverse effect on the claimant’s day to day activities identified at paragraph 34 above (including compiling and sending texts, the undertaking of administrative tasks and attending social events/ holidays). When reaching this conclusion, the Tribunal has taken into account its findings at paragraph 34 above which are consistent with the findings/ conclusions contained in the Lexxic Report that including that the claimant showed difficulties with executive functioning (page 8 of the bundle).

[59]In all the circumstances the Tribunal is satisfied that the claimant’s dyslexia had an adverse effect on her ability to carry out normal day to day activities for the purposes of section 6 of the 2010 Act. Were such adverse effects substantial ?

[60]The Tribunal has therefore gone on to consider whether such adverse effects (or any of them) were also substantial for the purposes of section 6 of the 2010 Act.

[61]When determining this matter, the Tribunal has reminded itself in particular that “substantial” is defined in section 212 (1) of the 2010 Act as “more than minor or trivial”.

[62]The Tribunal has also had regard to the associated guidance contained in section B of the Guidance/ the Appendix thereto and the guidance contained in the authority of Paterson referred to above.

[63]The respondent disputes that the claimant’s dyslexia had (in any event) more than a minor or trivial effect on her normal day to day activities as referred to above including by reference to the examples contained in the Appendix to the Guidance of factors which it would not be reasonable to regard as having a substantial adverse effect on normal day to day activities such as minor Case no 6001728/2023 17 problems with writing or spelling / the inability to fill in a long, detailed, technical document in a person’s native language without assistance.

[64]The Tribunal has considered first the claimant’s work-related activities.

[65]Having given the matter careful consideration, the Tribunal is satisfied that the claimant’s dyslexia had a substantial, that is more than minor or trivial, effect on the claimant’s ability to carry out her normal day to day work related activities relating to WCAs/ reports which as explained above involved normal day to day activities such as using a computer and reviewing and preparing written documents.

[66]When reaching this conclusion, the Tribunal has taken into account the submissions of the respondent/ the matters referred to at paragraph 54 and 63 above.

[67]The Tribunal has however balanced against such matters/ submissions that it was recognised in the OH Report (in the light of the findings and recommendations of the Lexxis Report ) that the claimant’s dyslexia was acting as a barrier to what was being requested of her in the time allocated in respect of the WCAs which formed an important aspect of her normal day to day work related activities. Further, the claimant was accordingly permitted a 25% increase in time allocation and a reduction from 6 to 5 cases a day in recognition of such difficulties ( paragraphs 27and 29 above and pages 33 and 50 of the bundle). Moreover, notwithstanding such adjustments the claimant was still unable to meet the respondent’s requirements (page 50 of the bundle) and it is recorded in the subsequent WA Report dated 31 January 2023 (paragraph 30 above and page 59 of the bundle)that the claimant was currently achieving only 2 WCAs a day which was significantly outwith the time allocation/ standards required of the claimant and her peers.

[68]The Tribunal has also taken into account that Section B2 of the Guidance ( relating to the time taken to carry out the activity) advises that “The time taken by a person with an impairment to carry out a normal day to day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity.”

[69]In this case the claimant was unable, throughout the relevant period, to achieve not only the daily WCA targets (6 per day) expected of her and her peers but also the reduced target of 5 per day notwithstanding the increased time allocation/ the reduced targets permitted by the respondent in recognition of her diagnosis of dyslexia and the barriers which it caused in her ability to meet the required time allocation. Case no 6001728/2023 18

[70]Further, whilst the Tribunal appreciates that the examples of factors which the Appendix to the Guidance recognises as factors which it would not be reasonable to regard as having a substantial adverse effect on normal day to day activities, (as relied upon the respondent), includes the matters referred to at paragraph 63 above. The Tribunal has also taken into account however that the factors which the Appendix to the Guidance recognises as it being reasonable to regard as having a substantial adverse effect on normal day to day activities includes a persistent and significant difficulty in reading or understanding written material because of a learning disability. The Tribunal is satisfied that this applies, as previously explained above, to the claimant’s difficulties with her work related activities of preparing WCAs in accordance with the targets/ standards expected of the claimant by reason of her dyslexia.

[71]Accordingly, having balanced all of the matters referred to above the Tribunal is satisfied that, having regard to the matters identified at 67 to 70 above, the claimant’s dyslexia had a substantial, that is more than minor or trivial effect, on her ability to carry out her normal day to day work activities relating to the undertaking of WCA assessments / preparing the associated reports.

[72]Finally, the Tribunal has considered whether the claimant’s dyslexia had a substantial adverse effect on the remaining non work related day to day activities relied upon by the claimant.

[73]Although the Tribunal is satisfied for such purposes that the difficulties which the claimant experienced as identified at paragraph 34 above, which were related to the claimant’s difficulties with executive functioning caused by her dyslexia, had an adverse effect on the claimant’s ability to carry out day to day activities such as sending texts and the carrying out of administrative tasks, the Tribunal is not satisfied on the evidence that they individually or collectively, had a standalone substantial adverse effect on the claimant’s normal day to day activities for the purposes of section 6 of the 2010 Act.

[74]When reaching this conclusion, the Tribunal has had regard in particular to the fact that the claimant’s evidence regarding such matters was unparticularised together with the ways which the claimant had developed of mitigating such effects for example, by sending emails rather than texts and using the telephone to carry out administrative tasks. In such circumstances the Tribunal is not satisfied that claimant has established that the adverse effects of her dyslexia on her non work-related day to day activities (individually or cumulatively) were, considered on a standalone basis, more than minor or trivial. The Tribunal is however satisfied that such non-workrelated difficulties, nevertheless contributed to the overall adverse effect on the claimant of her dyslexia. Case no 6001728/2023 19

[75]In conclusion the Tribunal is satisfied, in the light its above findings concerning the substantial adverse effect which the claimant’s dyslexia had on her ability to carry out her normal day to day work related activities namely to undertake her WCA work related activities that the claimant has established that she was a disabled person for the purposes of section 6 of the 2010 Act at all relevant times by reason of dyslexia. ________________________ Employment Judge Goraj Date: 26 September 2024

THE LAW

[1]Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge.

[2]There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings. You can access the Direction and the accompanying Guidance here: Practice Directions and Guidance for Employment Tribunals (England and Wales) - Courts and Tribunals Judiciary Case no 6001728/2023 20 Case No. 6001728/2023 EMPLOYMENT TRIBUNALS Claimant: Ms M Reilly Respondent: Maximus UK Services Ltd Heard at: Bristol On: 18, 19, 20 and 21 November 2024 Before: Employment Judge Livesey Mrs S Maidment Mrs S Ramsaran Representation: Claimant: In person Respondent: Ms Polimac, counsel

THE LAW

[1]Claim 1.1 By a Claim Form dated 6 September 2023, the Claimant brought complaints of unfair dismissal and discrimination on the grounds of disability.

[2]Evidence2.1 The Claimant gave evidence in support of her case and the Tribunal heard from the following witnesses on behalf of the Respondent; - Ms Williams, former Assessment Centre Manager; - Miss Homan, former Assessment Centre Manager; - Mr Fuller, former Performance Manager.

2.2 The following documents were produced; - R1; a hearing bundle; - R2; a cast list; - R3; a chronology.

[3]Issues3.1 The issues in the case had been discussed, agreed and recorded by Employment Judge Gray at a Case Management Preliminary Hearing which he conducted on 29 February 2024. They were revisited with the parties at Case No. 6001728/2023 the start of the hearing and were confirmed, by way of a summary, as follows;3.1.1 Unfair dismissal; The reason for dismissal that was relied upon by the Respondent was that of capability. In terms of issues of fairness, the focus was upon whether the Claimant had been given a reasonable chance to improve and/or whether her dismissal had been a fair sanction (paragraph 1.3 of the Case Summary). In particular, we had to examine whether she ought to have been dismissed when she was and she asserted that it had been before adjustments had been able to take effect (paragraph 1.5);

3.1.2 Discrimination; The issue of disability (dyslexia) had been determined in the Claimant’s favour by Employment Judge Goraj at a Preliminary Hearing which she had conducted on 3 September 2024. Her complaints were of discrimination arising from disability relating to her dismissal. She alleged that her inability to maintain the speed and quality of her written work had arisen from her disability (paragraph

3.2 of the Case Summary). The Respondent was not relying upon any lack of knowledge as a defence but was seeking to rely upon the argument of justification (see paragraphs 56-8 of its Amended Response). The Claimant was also alleging that the Respondent had failed to make reasonable adjustments to the provision, criterion and/or practice (‘PCP’) set out in paragraph 4.2 of the Case Summary relating to the timeframes and quality of her work. The second limb of the knowledge defence was being run by the Respondent in that respect. 3.2 There was a change to the issues on 3 September in that the Employment Judge enabled a slight broadening of the claims to include consideration as to whether the Claimant ought to have been allocated ‘non-WCA’ duties as an alternative to dismissal in respect of the complaint under the 1996 Act and/or as a further reasonable adjustment under section 20 (see the email of 10 October and the Order of 29 October 2024, at paragraph 40).

[4]Facts4.1 The following factual findings were made on the balance of probabilities. Any page references within these Reasons are to pages within the hearing bundle, R1, which have been cited in square brackets. Introduction

4.2 The Respondent is in business as an independent health assessment service which provided services to the Department of Work and Pensions (‘DWP’) in relation to benefit claimants and their eligibility for certain benefits. Assessments were undertaken by Healthcare Professionals (‘HCPs’) who prepared reports which went to the DWP which were used as Case No. 6001728/2023 tools for assessing eligibility. They were known as Work Capability Assessments (‘WCAs’).

4.3 The Claimant was employed as a Functional Assessor - HCP from 13 September 1999. She transferred under TUPE to the Respondent in March 2015 when it took over the DWP contract. That work was subsequently transferred again to Serco in September 2024.

4.4 The Claimant worked at the Respondent’s premises in Swindon. The Assessment Centre Manager, and the Claimant’s line manager from about 2019, was Ms Williams. The Claimant’s contract created a work pattern of 29 weeks on and the remaining time off. It was an annualised contract, a bit like that of the teacher, based around the school term times. The nature of the work

4.5 There was an expectation for an HCP to conduct at least six WCAs per day. There were targets for completion times (the Average Case Determination time, or ‘ACD’). The HCPs’ work was supported by Clinical Support Leads (‘CSLs’).

4.6 A quality target of 95% was also set. That meant that less than 5% of their reports ought to have achieved a C grade and 95% ought to have been A or B graded, with at least 72% graded as an A. An A graded report was one which contained the right outcome and which had been properly set out and expressed. A B graded report was one which contained the right outcome, but which had been poorly expressed and/or contained spelling errors. A report graded C would not have contained the right outcome and would not have been fit for purpose, sometimes requiring the customer to have been reassessed. Whilst it was correct that some C graded reports could have contained the right outcome for the client, they would have contained inconsistencies between the conclusions and the findings.

4.7 WCA’s were completed on the DWP’s specific LiMA computer program. Other, non-WCA work was limited but it included assessments relating to industrial injuries, war pensions and Pensions Overseas Department work.

4.8 WCA work had been undertaken on a face-to-face basis prior to the Covid- 19 pandemic, but it transferred onto the telephone during that time and never reverted thereafter.

4.9 An assessment involved the reading of an application form prior to an interview and then the conducting of that interview which the HCP noted, partly as free text, which could have been faired later when the interviewee had left, and partly as selections from options in drop down boxes on the LiMA programme. After the interviewee had left, the HCP then had to complete two main areas of the report; a tick box section which required selections to have been made from various functional descriptors by applying the information gained through the interview and, secondly, a free text Personalised Summary Statement (‘PSS’), which was the HCP’s personalised summary of the applicant’s position, which may have been up to one side of A4.

4.10 Non-WCA work (for example industrial injury claimants) involved the inputting of more free text but the history, once taken from an interviewee, Case No. 6001728/2023 was read back to them and faired with them still present. There was then a clinical examination and the rest of the report was largely written up as free text. Disability

4.11 The Claimant was diagnosed with dyslexia in 2018. An April assessment had revealed ‘mild dyslexia’ [150 & 123-149]. All of her other functional abilities were assessed in the ‘very superior’ to ‘average’ range [124, 132-4] but she had difficulty with short-term memory [125] and reading speed and comprehension [125-6].

4.12 Occupational Health (‘OH’) recommended a reduced workload as a reasonable adjustment; a reduction of 20%. For the Claimant, that therefore meant a reduction from 6 to 4.8 WCAs per day [151]. A further possibility, speech to text software, was considered, but it was not then compatible with the Respondent’s systems. A further recommendation, the provision of computer overlays, was put into place.

4.13 We considered the Claimant’s disability impact witness statement [63-4] and the Judgment of 26 September 2024 [89-106]. We noted that the Judge had found that the undertaking of WCAs was part of the Claimant’s normal day-to-day activities. As to the effect of her disability upon those activities, the Judge found as follows (paragraph 53 and 65 [103 & 105]); “..the Tribunal is satisfied that the claimant has established that her dyslexia had an adverse effect on her ability to carry out the work - related activities identified at paragraph 52 above. The Tribunal is further satisfied that, in light of the claimant’s high level of achievement recorded in the Lexxic Report in respect of the activities not effected by her dyslexia, she would, on the balance of probabilities, have been able to carry out the telephone computer-based WCA assessments and associated reports to the required speed/standards if she had not had dyslexia... The Tribunal is satisfied that the claimant’s dyslexia had a substantial, that is more than minor or trivial, effect on the claimant’s ability to carry out her normal day-to-day work related activities relating to WCAs/reports.” Performance pre-2020

4.14 The Respondent’s case was that the Claimant had struggled with aspects of her role before the 2020 Covid lockdown. She had been on a Performance Plan since November 2017. Whilst she then appeared able to produce good quality WCAs, she had been unable to do it consistently [113 & 116-7]. But the focus then was on productivity and the numbers that she was producing, not the quality of them. It was at that point that she was referred for an assessment regarding her dyslexia (see above).

4.15 A Performance Improvement Action Plan (‘PIAP’) had been considered again by Ms Williams in or around September 2020, not because of the quality of her work, but on productivity grounds.

4.16 During Covid, WCA targets were reduced further, from 6 to 5 nationally. For the Claimant, that meant that her target came down to 4, 80% of 5. Case No. 6001728/2023 Post Covid

4.17 In 2021, the DWP put in place new measurement tools which caused the Respondent to monitor its staff’s output more closely. That was explained to the Claimant in January when her shortcomings were identified [161-2].

4.18 In February, a PIAP was implemented because of productivity concerns, for two weeks initially [413]. Her target had then been 4, but the figures for September 2022 February 2021 had ranged between 2.37 and 3.57 per day [421]. During reviews at that time, the Claimant was not asking for any more support or adjustments (for example, [418]).

4.19 In March 2021, the formal PIAP was extended because targets were not being hit [437-9]. By June, however, she had improved (to 4 per day) and the plan was therefore concluded [467-472]. It was noteworthy that, during the process, she did not explain her difficulties on the basis of her dyslexia (for example, [423, 442 and 457-8]).

4.20 On 18 June 2021, all HCPs’ targets rose from 5 to 6 per day which, for the Claimant, ought to have meant a return to 4.8 per day [473-494].

4.21 By 29 June, a different concern had arisen in relation to the Claimant’s reports, that of poor quality. An audit of seven reports had shown 4 to have been at B grade and 3 at C (57% and 43% respectively). That was described by Ms Williams as a “serious concern”, especially since another audit of 26 reports in May and June produced a further 7 Cs and no As at all [487-90].

4.22 Support was arranged; a sit in with a CSL who was present at the interview and the report writing stage, followed by a feedback session on 14 September 2021 [491]. That support was provided despite the Claimant’s initial rejection of it [222]. Two further C grade reports had been recorded and customers had had to be recalled.

4.23 A further PIAP was introduced in November 2021. The records showed the support that was then followed [519-27 & 573-9]; - CSL sit ins; these were undertaken with her sitting in on a CSL and vice versa. A whole day was undertaken on one assessment [520]. Others were undertaken which did show some improvement [525]; - Audited feedback; some audits were still producing C grades in 2021 [525], but they did improve in 2022 [526]; - Red pen marking exercises.

4.24 The Claimant suggested that the original basis of the 2018 OH dyslexia assessment had been wrong and a further assessment with Ability First was therefore suggested [533-4], but she declined the referral.

4.25 The PIAP ran, initially, on an informal basis from November 2021 to January 2022 [573-9], but it then continued from to March [595-608] because of the lack of process that had been made initially. The PIAP continued to involve weekly meetings and support.

4.26 A further Ability First referral was offered in February 2022. It was declined again [583]; Case No. 6001728/2023 From Ms Williams; “At the end of the last meeting you where [sic] going to consider a referral to Ability First? The recommendations made by Lexxic and OH where [sic] made some time ago, and I believe there could be more options available/IT software that may be suitable to support you. This would mean a referral to Ability First, but I would need your consent for this to be explored.” From the Claimant; “I have given consideration to your suggestion of possible referral to Ability First, but I do not feel that this is necessary at present.” The Claimant explained her decision on the basis that she did not know what could then have been offered (paragraph 45 of her witness statement).

4.27 Nevertheless, things were improving and, in March 2022, her statistics showed no Cs and 10 As out of 21 reports [588-9]. She was congratulated and the support continued. She was asked to say if there was anything else that she wanted to assist her.

4.28 In the final week of the PIAP, however, there was another significant downturn; 4 of the 9 reports were Cs [593-4] and another customer had to be recalled. Overall, about 17% of her reports over the year had produced C grades.

4.29 On 31 March 2022, the Claimant was invited to a formal performance review under the Capability Policy [616-7]. The meeting was chaired by Ms Williams on 27 April and, although two of the Claimant’s C grade reports had been regraded to Bs, her performance was still a long way from where it needed to had needed to have been. A first written warning was issued, as confirmed in the subsequent letter [638-9]. It was important to note that the Claimant did not, again, identify her dyslexia as a barrier to producing reports of good quality [638].

4.30 On 6 May, the Claimant appealed the decision [642]. Her dyslexia was not mentioned and the recurring theme then was “session management issues”. The appeal hearing took place on 19 May and was conducted by Mr Lloyd, a Remote Performance Manager. It was dismissed [667-9].

4.31 The formal PIAP had restarted in May and, in the Ms Williams’s absence on annual leave, Ms Salisbury met the Claimant to discuss the support and management of the plan going forward [641]. At that point, all of her reports were being audited and some Cs was still being produced [647-9 & 653-6].

4.32 On 5 July, the Claimant was invited to a second formal performance review [672]. At the meeting with Ms Williams on 12 July, the Claimant had produced a further 14 C graded reports and 32 B grades [688-695]. A final written warning was issued, as confirmed in the subsequent letter [699- 700].

4.33 The Claimant appealed against that warning too and the hearing that time was conducted by Ms Homan, another Assessment Centre Manager, on 7 September [702-5]. The Claimant’s appeal focused upon the timescale over which an improvement had been expected but, again, it was dismissed later that month [709-10]. Case No. 6001728/2023

4.34 A further PIAP ran from September and the terms were set at a meeting on the 13th of that month [705-6]. The Plan restarted after the appeal had been determined and so it actually ran from 29 September [711] and continued to include sit ins, red pen marking, 100% auditing and one-to-one meetings with CSLs. Interim reviews took place on 13 and 20 October [717-9]. At the first, the quality of her reports was not in issue, but her volumes were still low. At the second, the quality had dipped again, with two more reports graded at C level, one of which had been on a day when just three WCAs had been completed.

4.35 On 17 November 2022, the Claimant was invited to attend a final formal performance review meeting as Ms Williams determined that the Plan’s aims had not been met; only 43.75% of her reports had been As and 15.63% had been Cs [748]. Her average case duration was supposed to have been approximately 93 minutes, but her figures were between 104 and 201 minutes [752].

4.36 The meeting took place on 23 November [759-765]. Ms Williams asked if the Respondent might have done anything more to assist the Claimant. She blamed staff departures but was complimentary about the support that she had had from CSLs. Ms Williams said that she had not understood why the Claimant had declined an Ability First referral but she then requested an adjournment for one to take place and to explore whether there were in fact any further adjustments which ought to have been considered. Ms Williams agreed and the meeting was adjourned. Ms Williams returned to HR [328-9] and her own line manager [333] for guidance.

4.37 It was determined that the PIAP should have continued, pending the Ability First referral. There were further review meetings on 4 and 9 January, when the Claimant was still producing C graded reports [772-3], on 16 January, when excessive time with the customer was noted [776-7], on 24 January, when some improvement was noted [778-9] and on 30 January when she had produced another C [783-4].

4.38 On 31 January 2023, the Claimant was seen by Ability First. The report recommended the provision of Dragon dictation software and training on it with a review 3 to 6 months later [785-792]; “Maggie speculates that the impact of her dyslexia on her typing ability and thought to manual output processing speed may be the reason for her inability to achieve her targets. As Maggie reports that her thought to speech processes faster than her thought to typing output, and to reduce the time taken editing substandard content, speech to text software Dragon Naturally Speaking, is recommended to allow Maggie to dictate her written work and improve the efficiency of her written work. It is noted that Dragon will not fully support Maggie during her live assessment but may significantly reduce the time taken to produce the written work afterwards.” There was a further recommendation (a disability passport) which was not relevant to issues in the case. Case No. 6001728/2023

4.39 On 6 February, at the first PIAP review meeting after the report, Dragon was discussed. Although Ms Salisbury readily appreciated how the software may have assisted with the Claimant’s speed, she was less clear and/or confident about how it would have raised the quality of the Claimant’s reports [799-800].

4.40 Further reviews in February were patchy (the 13th [802], 21st [810-1], 28th [819-20]). At that stage the Claimant was only undertaking 2 WCAs per day and Cs were still appearing (see Ms Williams’s summary in her letter of 8 March [832-4]); “Dragon Software will aid in completion of the latter portion of the report, however this will not aid in improving decisionmaking/ quality of the report to meet expectation. You have reported fatigue because of focusing on one report for a lengthy amount of time, and you hope Dragon Software will help with this. The expectation of 4 assessments/day would be reasonable as an adjustment whilst we wait for this to be made available.”

4.41 The Dragon software had been installed on the Claimant’s computer on 6 March. A further review on 13 March revealed 2 C grades and 2 A grades out of 6 reports [844-6]. She was not then at work between 20 March and 17 April because of the cycle of her contract but, on 18 April, she had her first training session on the software [860-2]. She said that it included other non-Dragon related elements regarding working strategies, which she found particularly helpful.

4.42 On the review conducted on 24 April, 4 out of 5 of her reports were As, the other a B [876-7]. That was clearly an improvement. At a further review on 2 May [906-14], the Claimant said that Dragon was improving the more that she used it. The quality of her WCAs had improved; “I agree that the quality has improved. I feel that I have cracked that really. I am looking to the software to help with productivity. And that still in the trail/setting up stage really. I feel that it will help with timings that the issues with it need to be ironed out. When it does work & it fluent [sic], I find it helpful.”

4.43 She was asked about specific days of work, 24 to 26 April. The problems which she identified then were not attributed to dyslexia and were obviously ones which might not have been overcome by Dragon to any extent, if at all. She described the ‘stumbling block’ to further progress being her lack of access to the training server. That was corrected that day. Ms Williams was still concerned at the volumes, with some of her assessments having been “excessively long” and, whilst the quality was improving, she still had 10% Cs, not under 5%, and the volume of As was in the 40% range [912].

4.44 The Claimant was invited to a further formal performance review meeting on 3 May [915-6], which was subsequently rearranged [934-6]. Because dismissal was then a possibility, Ms Williams needed HR approval, which she obtained [361].

4.45 The Claimant received her second Dragon training session on 18 May, which was recorded as having been re-iterative of the first [860-2]. Again, the most beneficial aspect to her, she said, was the element which concerned organisational strategies. Case No. 6001728/2023

4.46 The performance review meeting took place on 23 May with Ms Williams in the chair again and the Claimant supported by Ms Davies, a CSL [955-961]. Her performance was discussed, both with regard to volumes and quality [957]; in respect of the former, she was producing 2 WCAs per day against a target of 4. In respect of quality, 41% of her reports had been graded A, 9% at C and the rest were Bs.

4.47 It was the quality of the work which was Ms Williams’s main concern because of the Claimant’s experience and her apparent inability to exercise good judgment using her clinical skills. The Claimant said that she wanted more time with Dragon and had wanted to use it for other things. She also sought to challenge the adjusted targets. Ms Williams asked her how she thought that Dragon was ever going to help with the quality of the work that she was producing. The Claimant’s response to that question was not easy to understand [958] and no greater clarity was provided when it was addressed with her during her evidence.

4.48 Ms Williams’s position was captured in paragraphs 65 and 66 of her witness statement; “I took on board the comments raised by Maggie in relation to Dragon. However, my concern with this was that Dragon would not assist Maggie with her quality. Maggie was making the incorrect clinical decisions when preparing reports. Dragon was not going to be able to assist her with this aspect which had been explained to her on various occasions by different people. A very lengthy performance process had been followed, with weekly review meetings being held and a large amount of support being provided to Maggie. The focus of the PAP was to improve quality and whilst there were some improvements towards the end of the PAP, there were some C grades awarded following the final PAP review and before the final performance review meeting. The impact of C grades reports is significant and can lead to incorrect outcomes being provided to customers which can have a serious effect on them.”

4.49 Ms Williams decided to dismiss the Claimant. There were no realistic alternatives to the work that she was doing. Although she did some non- WCA work, there was not enough for her to have been given that type of work alone. The decision was confirmed in writing [962-4].

4.50 The Claimant appealed on 2 June [970-1]. The focus of the appeal was on the timeframe of the performance improvement process and her training on Dragon.

4.51 The appeal hearing took place on 4 July before Mr Fuller, a Performance Manager. The Claimant was again supported by Ms Davies [993-1018]. Mr Fuller was keen to understand how the Claimant considered that Dragon would have improved the quality of her reports. She explained her position as follows, highlighting the benefit that she had from the strategic coaching element of the training [1007]; “Main thing is strategic coaching with Dragon with speed I gain time if I save on time if I have coaching in place that would lead to better Case No. 6001728/2023 quality reports in a timely manner leave me more energy help to element [sic, but assumed, ‘eliminate’] some errors… It follows better I feel better I am less tired mentally it is clear I am in better position at end of report rather than feeling fatigued at end.”

4.52 Mr Fuller took the Claimant’s comments away for further consideration. He spoke to Ms Williams and explored the issues of support, quality and the alternatives to dismissal with her [979-989]. He then reconvened the hearing on 18 July and allowed the Claimant to comment further about aspects of what Ms Williams had told him, including why she had not given consent for an earlier Ability First referral [1035-1041].

4.53 Having considered the matter further, he convened an outcome meeting on 27 July and dismissed the appeal [1052-7]. In his following confirmation letter, he wrote as follows [1048-51]; “Your average case duration over the period of the plan remained over 200 minutes and would not enable the opportunity to meet the expected volume of customers in a normal working day… .. productivity was not the reason for the dismissal - the reason for dismissal following the failure of the Performance Improvement action plan was the quality of the reports… .. I can see that the Ability First request was first made in November 2022 - this was at the meeting being held to review the final formal review of the capability policy and was at the time of a decision to issue a final written warning. The offer of ability first had been made as a matter of routine through the regular reviews in the plan either specifically or as a general request for any support needed. You advised when we met that you were not aware of what support could be provided and felt that following an unsuccessful recommendation from 2018 for a Lexxic assessment and OH report competed [sic., assumed ‘completed’] at the time.”

4.54 As to the availability of other work the Claimant complained that very little of the documentation before the Tribunal reflected the non-WCA work which she did, but she accepted that that was because the problems had concentrated upon her WCA work performance. She had undertaken her non-WCA without too much difficulty. She also accepted that she had never expressly asked for more non-WCA work, nor was it raised at her dismissal and/or appeal as a potential alternative. In fact, she said that she positively liked the WCA work.

4.55 Ms Williams told us that there simply was not enough non-WCA work for the Claimant to complete alone. She said that she had possibly done one such report per month. That evidence was not challenged and it echoed Mr Fuller’s about the availability of such work.

4.56 Ms Williams told us that she also considered the Claimant for other ‘file work’, but that work required an analysis of whether applicants could not, or ought not, have been required to attend for assessment interviews (for example, because of severe disability or terminal illness). That required finely attuned skills and there was an expectation that 80 such cases would have been reviewed each day. In light of the Claimant’s assessed quality of judgment and/or speed of work, it was not considered suitable for her. Case No. 6001728/2023

Introduction

[5]Conclusions Unfair dismissal Relevant legal principles5.1 There was no dispute that the Claimant was dismissed for a fair reason, that of capability, under s. 98 (2)(a) of the Act. In such cases, an employer did not have to prove that the employee was, in fact, incapable of performing his or her job in order to satisfy a tribunal that the dismissal was fair. The test was whether the employer had an honest belief in the employee’s incapability which was based upon reasonable grounds (Alidair Ltd-v-Taylor [1978] 445, CA).

5.2 In performance cases of this sort, an employee needed to have been provided with an adequate and clear explanation as to why he or she was considered to have been failing in the role. Adequate warning, with targets and opportunities for improvement, needed to have been given. Sometimes further training could have been appropriate. A tribunal had to take into account all of the surrounding circumstances including, but not limited to, whether the targets were realistic, the reasons for the employee not attaining them and how other staff fared at that level of seniority and/or experience. The alleged incapability must have related to the work of the kind which the employee was employed to do (s. 98 (2)(a)). In cases where an employee failed to achieve the desired standard in his or her role, there was no obligation upon an employer to offer a different or subsidiary position. Its duty to consider redeployment would have depended upon all of the circumstances the case.

5.3 Whilst the Claimant did not challenge the process adopted by the Respondent which led to her dismissal, she clearly had challenged the sanction that was imposed. In dealing with that issue, we were not permitted to impose our own view of the appropriate sanction. Rather, we had to ask whether it fell somewhere within the band of responses available to a reasonable employer in the circumstances (Foley-v-Post Office, HSBCv- Madden

[2000] ICR 1283

and Graham-v-Secretary of State for Work and Pensions

[2012] EWCA Civ 903

). A tribunal had to consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to the it’s own subjective views, whether the employer had acted within a band or range of reasonable responses to the particular performance issues found of the particular employee.

5.4 An employer ought to have considered any mitigating features which might have justified a lesser sanction and the ACAS Guidance was useful in that respect; factors such as the employer's disciplinary rules, the penalty imposed in similar previous cases, the employee's disciplinary record, experience and length of service were all relevant. An employer was entitled to take into account both the actual impact and/or the potential impact of the poor capability alleged upon its business.

5.5 Section 98 (4)(b) of the Act required us to approach the question in relation to sanction “in accordance with equity and the substantial merits of the case”. A Tribunal was entitled to find that a sanction was outside the band of reasonable responses without being accused of having taken the decision again; the “band is not infinitely wide” (Newbound-v-Thames Water

[2015] EWCA Civ 677

). The test was not the same thing as saying that a Case No. 6001728/2023 decision of an employer to dismiss would only have been regarded as unreasonable if it was shown to have been perverse.

5.6 As to the previous warnings which the Claimant had received, it was not usually appropriate for a tribunal to reopen the circumstances which led to any earlier warning. An employer was entitled to rely upon a final warning provided that it was issued in good faith, that there were at least prima facie grounds for issuing it and that it had not been manifestly inappropriate to do so (Davies-v-Sandwell MBC

[2013] EWCA Civ 135

). There generally needed to have been exceptional circumstances before a tribunal should have been prepared to go behind an earlier disciplinary process, but it nevertheless had to consider the issues identified in Davies before that decision could have been made. Discussion and conclusions

5.7 The key issue was the Claimant’s contention that she ought to have been given more time to improve (see paragraphs 1.3.1 and 1.5.1 of the Case Summary [55-6]). She was not given at least three months to improve her performance after Dragon had been provided as Ability First had recommended. She expressed confidence that she could have “comfortably” hit the targets had she been given more time (paragraph 73 of her witness statement).

5.8 The Respondent had been trying to get the Claimant to Ability First since late 2021. A referral had been declined until later on in 2022. The January 2023 report made recommendations about the provision of Dragon, some training and a suitable review period. It was installed at the start of March. The Claimant then did two weeks work with it before she was then away from work. She returned for approximately five weeks before her dismissal. Accordingly, she had worked for nearly two months with Dragon with the benefit of a substantial training session.

5.9 The Respondent’s case was that the Ability First report had recommended Dragon to assist with the speed of the Claimant’s work [787] but it was the quality of her work which remained the significant issue [957]. The volumes also remained low, despite the use of the software [912 & 957]; she was supposed to have been doing 4 reports per day, but was only achieving 50% of that number. The call times too, which were never going to have been assisted by Dragon, were still excessively long [802]. These had been longstanding, endemic issues and, despite extensive periods of performance management, they continued.

5.10 Was the Respondent right to dismiss the Claimant before the end point of the recommended review period? Was it a decision which a reasonable employer could have taken in all the circumstances?

5.11 We thought that it was for the following reasons. First, approximately two thirds of the Claimant’s expected review time with Dragon had elapsed but she still had a very significant distance to go to achieve the Respondent’s targets (less than 5% Cs and more than 72% As). She was also still only doing 2 WCAs per day, yet was still producing some C grade reports and with excessive call times. Dragon was only going to have helped to a relatively limited extent because the free text part of the form on LiMA was a small element (the PPS). Most of the material which had to be completed Case No. 6001728/2023 was whilst the Claimant was on a call, when Dragon could not have been used, and she was taking ages to complete that part. Whilst the fairing of that element and the PPS could have been assisted by Dragon, it was the selection of the right descriptors from the drop-down boxes which was causing the Claimant to make judgmental errors which was resulting in so many low grade reports.

5.12 Secondly, it was important to note that the real benefit that the Claimant said that she took from the Dragon training had been the planning and organisational strategies that had been delivered, which were not actually part of the training on the software itself and had never been part of the First Assist recommendation.

5.13 Thirdly, The Claimant had shown, well before the use of Dragon, that she was capable of greater output and the production of a better quality of reports on occasions. In June 2021 she had been producing 4 WCAs per day and the quality of her reports in March 2022 had been good. But she said that there was a trade-off between her speed and the quality of her reports because of her dyslexia. Unfortunately, the evidence simply did not sustain the type of correlation contended for ([802], for example).

5.14 Accordingly, the Respondent was acting within the band of reasonable responses available to it by dismissing her when it did. It did not consider that Dragon ought to have been regarded as a silver bullet. It considered that the further improvement confidently expected by the Claimant could not reasonably have been predicted and that view was one that a reasonable employer could have formed on the material available to it. As Ms Williams put it during her oral evidence; “The quality was driving the decision not to wait three months. The quality had not been reached or maintained. The DWP required reports to have been of a specific standard. It was not being met.”

5.15 As to sanction, the question was not just that which was set out in paragraph 1.4 of the Case Summary [56], but also whether non-WCA work should have been allocated to her in order to her avoided her dismissal (see the Tribunal’s email of 12 October 2024).

5.16 Given the significant history of underperformance, the previous warnings (including a final written warning), the impact of underperformance upon the Respondent’s contract with the DWP and benefit claimants if re-calls were required and all that we have already said about the perceived likely benefit of Dragon, we considered that dismissal was not a sanction that fell outside the band of responses available to a reasonable employer.

5.17 As to non-WCA work, there was no evidence to suggest that there was sufficient work of that nature to have sustained the Claimant’s continued employment. Discrimination arising from disability Relevant legal principles

5.18 When considering a complaint under s. 15 of the Act, we had to consider whether the employee was “treated unfavourably because of something arising in consequence of her disability”. There needed to have been, first, ‘something’ which arose in consequence of the disability, which was an Case No. 6001728/2023 objective question and, secondly, unfavourable treatment which was suffered because of that ‘something’ (Basildon and Thurrock NHS-v- Weerasinghe

UKEAT/0397/14

). That second question was subjective, in the sense that it required us to examine the employer’s mind in order to establish whether the treatment had been by reason of its attitude or reaction to the ‘something’ (Dunn-v-Secretary of State for Justice

[2019] IRLR 298

, CA). Although an employer must have had knowledge (actual or imputed) of the disability, there was no requirement for it to have been aware that the relevant ‘something’ had arisen from the disability (City of York-v-Grosset 2018] IRLR 746, CA).

5.19 Although there needed to have been some causal connection between the ‘something’ and the disability, it only needed to have been loose and there might have been several links in the causative chain (Hall-v-Chief Constable of West Yorkshire Police

UKEAT/0057/15

and iForce Ltd-v-Wood

UKEAT/0167/18/DA

). It need not have been the only reason for the treatment; it must have been a significant cause, in the sense of ‘more than trivial’ (Pnaiser-v-NHS England

[2016] IRLR 170

and Bodis-v-Lindfield Christian Care Home Ltd

[2024] EAT 65

), but the statutory wording (‘in consequence’) imported a looser test than ‘caused by’ (Sheikholeslami-v- University of Edinburgh

UKEATS/0014/17

and Scott-v-Kenton Schools Academy Trust

UKEAT/0031/19/DA

5.20 In IPC Media-v-Millar

[2013] IRLR 707

, the EAT stressed the need to focus upon the mind of the putative discriminator. Whether conscious or unconscious, the motive for the unfavourable treatment claim needed to have been “something arising in consequence of” the employee's disability.

5.21 No comparator was needed. ‘Unfavourable’ treatment did not equate to ‘less favourable treatment’ or ‘detriment’. It had to be measured objectively and required a tribunal to consider whether a claimant had been subjected to something that was adverse rather than something that was beneficial. The test was not met simply because a claimant thought that the treatment could have been more advantageous (Williams-v-Trustees of Swansea University Pension and Assurance Scheme

[2019] ICR 230

, SC).

5.22 We approached the case by applying the test in Igen v Wong

[2005] EWCA Civ 142

to the Equality Act’s provisions concerning the burden of proof, s. 136 (2) and (3). In order to trigger the reversal of the burden, it needed to have been shown by the Claimant, either directly or by reasonable inference, that a prohibited factor may or could have been the reason for the treatment alleged. A claimant did not need to have to find positive evidence that the treatment had been on the alleged prohibited ground; evidence from which reasonable inferences could be drawn might have sufficed. Unreasonable treatment of itself was generally of little helpful relevance when considering the test. The treatment ought to have been connected to the protected characteristic, although unexplained, unreasonable conduct could be sufficient to shift the burden in some cases (as in Law Society-v-Bahl

[2003] IRLR 640

]).

5.23 If a claimant was able to demonstrate the essential elements of the test within s. 15 (1)(a), a Respondent had a defence if it could show that the treatment was “a proportionate means of achieving a legitimate aim”. (s. 15 (1)(b)). In considering such a defence, we had to identify the Respondent’s Case No. 6001728/2023 aim, analyse whether it was ‘legitimate’, consider whether the Respondent had demonstrated that the step that it took was a means of achieving it and consider whether the step was proportionate (see Minis Childcare-v-Hilton- Webb

[2024] EAT 108

5.24 Proportionality in that context meant ‘reasonably necessary and appropriate’ and the issue required us to objectively balance the measure that was taken against the needs of a respondent based upon an analysis of its working practices and wider business considerations (per Pill LJ in Hensman-v-MoD

UKEAT/0067/14/DM

at paragraphs 42-3). Just because a different, less discriminatory measure might have been adopted which may have achieved the same aim, did not necessarily render it impossible to justify the step that was taken, but it was factor to have been considered (Homer-v-West Yorkshire Police

[2012] IRLR 601

at paragraph 25 and Kapenova-v-Department of Health

[2014] ICR 884

, EAT). The test was not as loose, however, as the range of reasonable responses test (Scott-v- Kenton Academy Schools

UKEAT/0031/19/DA

, paragraph 58). If a respondent relied upon the rationale for a policy or practice, it had to justify the manner in which it was applied to a claimant in order to meet the defence in the section. In Buchanan-v-Commissioner of Police of the Metropolis UKEAT 0112/16 HHJ David Richardson drew a distinction between objective justification for the purposes of s. 15 (2) and justification of the general application of a policy (such as in the case of Seldon). HHJ Richardson explained that since the focus must have been on “the treatment” by the putative discriminator, it was necessary to start by identifying the act or omission, and asking whether that act or omission was a proportionate means of achieving a legitimate aim. Therefore, there will be some cases where, rather than the act or omission having been the application of a general rule or policy, what must be justified is the treatment at each stage in the policy (see paragraphs 42 to 49).

5.25 It was important to remember that justification had to be considered in the context of the impact of the Claimant’s conduct or performance upon the business generally, not just the individual employee (City of Oxford Bus Services Ltd-v-Harvey

UKEAT/0171/18/JOJ

) and that the section required a Tribunal to make its own ‘critical evaluation’ of the evidence against the statutory test. The following key principles were set out by Lady Hale in Homer v Chief Constable of West Yorkshire Police

[2012] IRLR 601

[22-24]:

(i) To be proportionate, a measure had to be both an appropriate means of achieving a legitimate aim and (reasonably) necessary in order to do so;

(ii) If the measure went further than was (reasonably) necessary to have achieved the aim, it will have been disproportionate;

(iii) Assessment of justification included a comparison of the impact of the act upon a claimant as against the importance of the aim to the employer.

5.26 The Supreme Court expressly applied the judgment of the CA in Hardys & Hansons plc v Lax

[2005] IRLR 726

. It was made clear in that case that the latitude given to an employer when considering the objective justification defence was not akin to the band of reasonable responses test applicable in an unfair dismissal claim. The main principles of the objective justification test were usefully summarised by HHJ Eady QC (as she then was) in City Case No. 6001728/2023 of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey [2018] (

UKEAT/0171/18

) as follows [22]: “(i) Once a finding of a PCP having a disparate and adverse impact on those sharing the relevant protected characteristic has been made, what is required is (at a minimum) a critical evaluation of whether the employer’s reasons demonstrated a real need to take the action in question (Allonby). (ii) If there was such a need, there must be consideration of the seriousness of a disparate impact of the PCP on those sharing the relevant protected characteristic, including the complainant and an evaluation of whether the former was sufficient to outweigh the latter (Allonby, Homer). (iii) In thus performing the required balancing exercise, the ET must assess not only the needs of the employer but also the discriminatory effect on those who share the relevant protected characteristic. Specifically, proportionality requires a balancing exercise with the importance of the legitimate aim being weighed against the discriminatory effect of the treatment. To be proportionate, a measure must be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so (Homer).

(iv) The caveat imported by the word “reasonably” allows that an employer is not required to prove there was no other way of achieving its objectives (Hardys). On the other hand, the test is something more than the range of reasonable responses (again see Hardys).” Discussions and conclusion

5.27 The significant problem for the Claimant in respect of this element of the claim was the issue of causation; whether her competence, particularly in relation to the quality of her reports, arose from the effects of her disability.

5.28 The Respondent had readily accepted that the speed of the Claimant’s work “may have been hindered” by her dyslexia, but not the quality of what she was producing (paragraphs 51 and 52 of the Amended Response [72]). The Claimant’s ability to produce good reports sometimes (for example, in March 2022) undermined her case that her disability impeded her ability to do so. It was the poor selection of the descriptors in the reports which was really harmful to her and the evidence that her dyslexia somehow conflicted with her ability to use her clinical skills to properly judge the information that she had received for an applicant’s interview was very limited indeed. Paragraphs 28 and 29 of the Judgment of 26 September 2024 concentrated upon the speed of her work. What primarily caused her dismissal related to quality, even when she was only undertaking 2 WCAs per day. Her continuing problems with judgment was not one identified as having been a feature of her dyslexia, either in the 2018 Lexxic report or Employment Judge Goraj’s judgment.

5.29 Even if we had been wrong and a causal link ought to have been established, the Respondent’s defence of justification was compelling (see paragraphs 56-8 its Amended Response [73]). The aims identified were essentially twofold; its requirements to meet the DWP’s strict service levels and the need to ensure that benefit claimants, who were often vulnerable, Case No. 6001728/2023 were dealt with correctly so that they received their correct, statutory entitlements. Those aims were both legitimate in our judgment.

5.30 The decision to dismiss was contended to have been proportionate in the context of the achievement of those aims and we also agreed. Having spent so much of the previous years of her employment in one performance improvement process or another, having received a written and then a final written warning, having failed to make a substantial and sustained improvement to all aspects of her work over the majority of the suggested review period with Dragon and there being no suitable alternative work then for her, dismissal was then justified. Failure to make reasonable adjustments Relevant legal principles

5.31 In dealing with the claim under ss. 20 and 21 of the Act, we have bore in mind the guidance in the case of Environment Agency-v-Rowan

[2008] IRLR 20

in relation to the correct manner that we should approach the sections; first, we had to identify whether and to what extent the Respondent had applied a provision, criterion and/or a practice (the ‘PCP’). In relation to the second limb of the test, it had to be remembered that a claimant needed to demonstrate that he or she was caused a substantial disadvantage when compared with those not disabled. It was not sufficient that the disadvantage was merely some disadvantage when viewed generally. It needed to have been one which was substantial when viewed in comparison with persons who were not disabled and that test was an objective one (Copal Castings-v-Hinton

[2005] UKEAT 0903/04

and Sheikholeslami-v-University of Edinburgh [2018] 1090, EAT).

5.32 Further, in terms of the adjustments themselves, it was necessary for them to have been both reasonable and to have operated so as to have avoided the disadvantage. There did not have to have been a certainty that the disadvantage would have been removed or alleviated by the adjustment. A real prospect that it would have had that effect would have been sufficient (Romec-v-Rudham

UKEAT/0067/07

and Leeds Teaching Hospital NHS Trust-v-Foster [2011] EqLR 1075).

5.33 It can have been reasonable for an employer to have made an adjustment even if the claimant had not suggested it. That underlined the importance of the employer consulting with a claimant and making appropriate enquiries/assessments. However, at the stage when a claim was brought, it was incumbent on a claimant to identify the adjustments which he or she says should reasonably have been made (see Project Management Institute-v-Latif at paragraphs 54 and 55).

5.34 It was not generally considered reasonable to have required an employer to have made an adjustment which might have caused there to have been a drop in standards of competence (Hart-v-Chief Constable of Derbyshire

UKEAT/0403/07/ZT

5.35 In our consideration of this part of the claim, we referred to the statutory Code of Practice and, specifically, paragraph 6 relating to the duty under ss. 20 and 21. Discussion and conclusions Case No. 6001728/2023

5.36 We had little difficulty in accepting that, although the PCP framed within paragraph 4.2.1 of the Case Summary, was vague, there were expectations in terms of volumes and quality which amounted to PCPs in this case which had been imposed upon the Claimant in an adjusted form (a 20% reduction in targets).

5.37 The difficulty for here, however, was twofold; first, she was unable to demonstrate a substantial disadvantage caused by her disability for the same reasons set out above in relation to the complaint under s.15 and, secondly, the adjustment contended for was not in fact an adjustment to the PCP relied upon. The adjustment specified within paragraph 4.5.1 of the Case Summary [58] was not to the standards relied upon within paragraph 4.2.1. Rather, it was to a one off recommendation which was unlikely, by and of itself, to have amounted to a PCP. Even if it had been, considering the contractual obligations that the Respondent had to the DWP, we would not have been satisfied that a lowering of those standards in relation to quality would not have been reasonable in any event.

5.38 For the reasons already explained, the additional adjustment contended for in relation to the provision of other non-WCA work, did not succeed because there was insufficient evidence that such work existed in sufficient quantity so as to have sustained her continued employment.