Mr A Clifford v Avon and Wiltshire Mental Health Partnership NHS Trust: 6001921/2023

EMPLOYMENT TRIBUNALS

Case No 6001921/2023

Between

Mr A CliffordClaimant

Avon and Wiltshire Mental Health Partnership NHS TrustRespondent

Before

Employment Judge Woodhead

Mr Pal for claimant

Ms Nicola Newbegin for respondent

Date 29 October 2024

JUDGMENT

[1]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[2]The complaint of unfair dismissal is not well-founded and is dismissed.

[3]The Claimant’s complaints of failure to make reasonable adjustments under Sections 20 and 21 Equality Act 2010 (“the EqA”) were dismissed on withdrawal at the hearing on 14 October 2024.

REASONS

[4]As we describe below, aspects of the claim were withdrawn and simplified on the first day of the hearing. We were asked to determine the remaining complaints of:4.1 Unfair dismissal 1 of 62

4.2 Discrimination arising from disability (the unfavourable treatment being the Claimant’s dismissal).

[5]The Claimant has bipolar disorder which the Respondent accepts amounted to a disability at the material time.

[6]The Claimant was employed as a Recovery Co-ordinator by the Respondent for over 20 years until his dismissal with effect from October 2023. The Respondent says that the Claimant was dismissed fairly on capability grounds and that his dismissal was not because of something arising in consequence of his disability (it says that the Claimant’s sickness absence did not arise in consequence of his bipolar disorder) but that, if it was, then his dismissal was a proportionate means of achieving a legitimate aim.

[7]The List of Issues that was agreed by the parties on the first day of the hearing (14 October 2024) is included in the Appendix to this judgment.

THE HEARING

[8]This claim was listed for five days at a preliminary hearing for case management on 27 March 2024.

[9]On the first day, 14 October 2024, we were provided with:9.1 An opening note from the Respondent which focused on some preliminary matters.

9.2 A reading list prepared by the Respondent but with which counsel for the Claimant agreed.

9.3 A hearing bundle of 550 pages (page references indicated with []).

9.4 A witness statement bundle of 34 pages (page references in indicated with WSB[]) including witness statements for the following people who gave evidence at the hearing:9.4.1 The Claimant [WB23-34] (paragraph references indicated with CWS[]). Paragraph 51 was redacted.

9.4.2 Mr P Rice [WSB2 – 7] - the manager who took the decision on behalf of the Respondent to dismiss the Claimant (paragraph references indicated with PRWS[]).

9.4.3 Ms L Cox [WSB8 – 18] - Line manager to the Claimant’s line manager (paragraph references indicated with LCWS[]).

9.4.4 Ms A Luke [WSB19 – 22] - Appeal Hearing manager (paragraph references indicated with ALWS[]).

9.5 An agreed chronology – 9 pages.

9.6 An agreed Cast List - 2 pages. 2 of 62

[10]At the start of the hearing we were asked to decide an outstanding application by the Claimant to amend the reasonable adjustments complaints dating to 19 April 2024 [139]. Ultimately we did not need to decide this application – which was not in any event opposed by the Respondent – because the whole complaint was withdrawn by the Claimant and dismissed on withdrawal on 14 October 2024. This also meant that the EqA time limits issue fell away. These issues are therefore struck through in the List of Issues in the Appendix to his judgment.

[11]We were asked to decide an application by the Respondent to rely on:11.1 documents in a supplemental bundle (pages 551 – 606);

11.2 a supplemental witness statement of Ms L Cox of three pages (paragraph references indicated with LCSWS[]) (“the Respondent Application”).

[12]The Claimant opposed this application saying that, whilst the Respondent said that the need for these additional documents and witness evidence arose out of the Claiamnt’s witness statement, in fact the need arose out of the basis for the Respondent’s defence of the claim and should have been thought of in any event by the Respondent. The Claimant said that the stricter rules applied in other courts to late disclosure and evidence should be applied here but did not say that the Claimant would need to adduce new evidence himself, seek further disclosure, or could not proceed if the Respondent’s application were successful. The key documents in contention were the supplemental witness statement and documents referred to in the Respondent’s opening note as follows:12.1 20a [557-558].

12.2 20c – and 20d [573-582] and [582-583].

12.3 23d 601-606 [601-606].

[13]Whilst we accepted that this evidence and documentation should have been identified and disclosed with other documents and on exchange of witness statements, we concluded that the balance of prejudice was in favour of allowing the Respondent’s application. The Claimant had had the documents and witness statement for around a week, no application for the amendment of the grounds of resistance was necessary and the prejudice would have been greater to the Respondent had it not been able to rely on these additional matters in respect of a defence that had already been pleaded.

[14]These matters, finalising the list of issues (including refining the wording of the Section 15 EqA complaint, agreeing the timetable, discussing adjustments for the Claimant and reading into the claim took us to just before 15:00. We then heard the Claimant’s evidence.

[15]We made clear that the Claimant could ask for breaks if he felt he needed them, particularly in light of his disability, but also made clear that anyone could ask for a break if they needed it. 3 of 62

[16]We reminded all witnesses under oath that they were not permitted to communicate with others about the case during breaks or adjournments while they were giving evidence under oath.

[17]On day two of the hearing (15 October 2024) we continued to hear the Claimant’s evidence, which concluded before the time limit we had asked the Respondent’s counsel to keep to. We then started to hear Miss Cox’s evidence.

[18]Ms Newbegin had some supplementary questions for Mrs Cox and Mr Pal objected to the last of those questions which focused on new pages 601to 606 of the bundle. We concluded that given that the evidence she was seeking from Ms Cox could have been included in Ms Cox’s supplemental witness statements, the evidence of the Claimant had concluded and Mr Pal was not going to have the opportunity to seek evidence from the Claimant on what Ms Cox might say, it was not in the interests of justice to allow the question.

[19]At the end of the day Mr Pal indicted that he was making good progress with Ms Cox and we reiterated our direction that the evidence should be concluded before the end of the day on Wednesday 16 October 2024 so that submissions could be heard on Thursday morning.

[20]On day three, Wednesday 16 October 2024 Ms Cox concluded her evidence. We then heard the evidence of Mr Rice and Mrs Luke. Whilst the original timetable had provided for evidence to spill into 17 October 2024 by an hour, we had indicated to the parties from an early stage that we considered that evidence should conclude on day three so that we could hear submissions before lunch of day four. In the event we did not need to guillotine either party’s cross examination. We allowed the Claimant to refer us to ICD-11 on bipolar or related disorders.

[21]We were provided with helpful written submissions which the parties talked to on the fourth day of the hearing (17 October 2024). The hearing concluded with the parties at around 13:30 that day.

[22]The Claimant indicated that he would most likely ask for written reasons whether he won his claim or was unsuccessful. We deliberated that afternoon and concluded that in the circumstances it was in the interests of the overriding objective to reserve our decision. We confirmed this to the parties that evening.

FINDINGS OF FACT

[23]Having considered all the evidence, we find the following facts on a balance of probabilities.

[24]The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to the legal issues. The Respondent

[25]The Respondent is an NHS Trust which serves a population of approximately 1.8 million, providing healthcare for people with serious mental illness, learning 4 of 62 disabilities and autism in inpatient and community-based settings. The Claimant’s role

[26]The Claimant started employment with the Respondent on 28 June 2003 [523]. On 7 June 2012 the Claimant was appointed to role of Band 4 Recovery CoOrdinator [530] in the Swindon Intensive Service (the “SIS Team”). This was the substantive role he held at the date of his dismissal.

[27]The Claimant accepted that his contract provided: “The Swindon Intensive provides a service over the following hours 24/7 shift working pattern. You will therefore be required to participate within a team rota to ensure that an appropriate service is provided.” [530]

[28]Employees in the SIS Team, at the relevant time, worked a 7 day rotating shift pattern covering:28.1 Earlies: 8am to 16:00

28.2 Lates: 14:00 to 22:00 (for a period lates ran from 13:30-21:30)

28.3 Nights: 21:30 – 8:30

[29]During COVID the SIS team needed to be strengthened, the key aim being to try to reduce the number of inpatients. SIS staff numbers in COVID at their peak were:29.1 On earlies: two Band 6 staff (“B6”) and four more junior Band 4 staff (“B4”);

29.2 On lates: four B4’s;

[30]B6’s have a higher level of qualification (they are registered nurses).

[31]From April 2023 the Respondent needed to bring staffing levels down to reflect the budget available. This meant:31.1 On earlies: two B4’s.

31.2 On lates: three B4’s.

[32]We accept that by this time, the Respondent had had long standing B6 vacancies which it had not been able to fill (varying from five to seven vacancies in an establishment of nine registered B6 staff). It therefore reasonably chose to select certain B4’s and train them up to B6. This entailed those B4’s having at least one study day per week which needed to fall Monday to Friday (being the operating days of the Universities they needed to attend) and also spend time not doing their B4 roles when out on placement (periods of 4 weeks to 4 months). The Respondent could not backfill this shortfall because it was still paying the B4 staff during their training and placements.

[33]We accept that when it came to April 2023 the pressure on the roster for B4’s became more acute because of the need to reduce the overall number of B4’s to 5 of 62 pre-covid levels. This was anticipated when it came to consideration of a Flexible Working Request made by the Claimant in February 2023. Attendance and Health at Work Policy

[34]The Respondent’s Attendance and Health at Work Policy [492] provides, amongst other things: We all strive to provide the highest level of service, attendance is vital to achieving this aim.” [493] 2. Principles We recognise that the nature of the work we do as a Mental Health Trust can be challenging and therefore we may need additional support. This policy has been developed with this in mind and we have increased our expected standard over and above what most NHS employing organisations would consider reasonable. Managers are also asked to take a holistic view in terms of H&WB management. “You can expect conversations regarding your H&WB to form part of everyday working life.” We wish to support you to manage your H&WB with the aim of preventing issues arising that have an adverse effect on attendance and as a result service delivery. We all strive to provide the highest level of service, attendance is vital to achieving this aim. All employees are also contractually required to attend work regularly and the Trusts reviews attendance data to monitor this. Should you fall below the standard we expect, your manager will have a conversation to see how we may be able to support you in achieving this. On the rare occasion when attendance does not, or cannot improve, then the later part of this policy will be used to determine if your employment should continue – please be assured that alternative options will be explored prior to this stage and engagement with this policy will reduce the need for formal management. Your manager will:  Communicate regularly with you.  Promote employee engagement.  Recognise and praise good performance.  Work with you on your development. 6 of 62  Be proactive in identifying and addressing H&WB/Attendance issues and concerns early.  Take preventive action at the earliest opportunity, identifying sources of internal and external support.  Positively look after their own and their teams H&WB.  Avoid negative behaviour; be transparent in approach and with communications. 3. Responsibilities […]  Managers should recognise their key role in H&WB management, fostering a two-way channel between employees and the Trust, encourage their team, motivate, encourage commitment, collectively monitor morale, and people management issues at the earliest point.  All Trust employees should familiarise themselves with this policy, the required standards and engage in honest conversations to allow the Trust to support them in achieving these”.[494] 4. Notifying & Reporting - As a condition of employment, if you are unable to attend work you must: Notify - verbally as soon as possible on the first day of absence to line manager. Make agreements for further contact. For all absences, complete self-certification form. For absences over a 7 calendar day period, a doctor’s certificate should be forwarded to your manager within 5 working days. Managers will be provided with reports of attendance in a rolling 12- month period that: Fall short of the Trust standard of 96% Categorised as long term sickness Patterns/concerns will be monitored locally within departments. [496]6.1 Health Condition/Disability Management Should you have, or develop a health condition whilst employed with us, then we would encourage you to disclose this to your line manager. 7 of 62 We will discuss the circumstances and your role(s) so that we can understand how we can, if required, best help you. This may involve for example agreeing arrangements for ongoing treatment, or discussing reasonable adjustments. Your line manager will complete a H&WB action plan with you to review and record discussions and progress.

6.2 Long Term Sickness & Industrial Injury Should you be off work, or signed off for a period exceeding 28 days, you will be considered to be off on long-term sickness. Should you have an industrial injury, your manager will report this to the payroll team and provide additional support during this time. Should any industrial injury absence be for an extended period, payroll will contact you directly to coordinate paperwork. Your manager will agree how to maintain regular contact with you and will complete an H&WB action plan. This is to ensure that we are supporting you whilst you are away from work and aid the process of coordinating resource, whilst working towards a successful return. In some cases, we can be advised by occupational health to return you to work over a phased period. Despite any recommendation, your manager is best placed to assess this against what is safe to accommodate and reasonable for the service to provide. The Trust will fund a phased return for your contracted hours for a period of up to 4 weeks. Annual leave, unpaid leave or TOIL can be discussed and agreed if an extended period is requested.

6.3 Attendance Standards Managers will have access to their department’s sickness data; sickness records are input by the payroll team into ESR and made available to managers. Individuals who have fallen short of 96% attendance should trigger a management conversation (with the exception of absences for surgery, treatment, emergency admittance or those sickness occurrences managed under section

4.1 or

4.2 ).

[35]We accept that this reference to4.1 and

4.2 is a typographical error and means to refer to 6.1 and 6.2. The policy goes on: Management should create with you a H&WB action plan that may include, amongst other options, setting the employee an attendance achievement plan with a review period. Any review period should encourage an immediate short-term improvement but also on-going monitoring over the next 12 months from the date the plan was set. 7. Formal Management Process 8 of 62 On the rare occasions when the above mechanisms to support your H&WB are not working; for example adjustments may no longer be reasonable, or there is an indication that you will not be able to return for the foreseeable future, then your line manager will invite you to a meeting to discuss the options available. This meeting will be chaired by the next level of line management and HR will be in attendance. Options explored may include:  Extending the attendance achievement plan  Asking managers to explore the H&WB action plan further and amend.  Further reasonable adjustments to role.  Redeployment (temporary or permanent).  Mutually agreeing your dismissal from Trust employment.  Formal hearing.  Ill Health retirement discussions. Should it be considered that we are no longer able to support your employment in the Trust, you may be dismissed on grounds of capability due to ill health and you will be given the right to appeal.

[36]The Claimant accepted that these policy provisions applied to him and that he was aware of them.

[37]The Claimant gave evidence that this policy had passed its review date. However, we accept that it was the policy that applied to him during the relevant period and the Respondent’s evidence that it was the policy on their systems at the relevant time and, had it been reviewed on the suggested review date, then the updated policy would have been applied to the Claimant but it was not so reviewed. Redeployment policy

[38]The Respondent’s “Redeployment Due to III Health Support & Information Sheet” provides, among other things [558]: What happens if suitable alternative employment cannot be found? If all possibilities of redeployment and retraining have been exhausted, you would either return to your substantive post, or if you were not fit to do so, we would proceed to a formal sickness hearing in line with the Trust Managing Attendance and Absence policy. A provisional date may be arranged to reserve everyone's availability.

[39]The Claimant’s evidence was that his Union (RCN) advised him not to agree to be put on the redeployment register because if he was not found a role within 12 weeks under redeployment, he would then be dismissed. The Respondent 9 of 62 disputed that this was the case and we prefer the evidence of the Respondent based on the document we were referred to. Attendance record

[40]We accept the Respondent’s submission that in the period 1 April 2015 onwards there is no year in which the Claimant achieved a level of sickness absence in line with the Respondent’s standard policy expectations [539] and [342]:40.1 1 April 2015 – 31 March 2016 (15 days)

40.2 01 April 2016 – 31 March 2017 (83 days)

40.3 01 April 2017 – 31 March 2018 (42 days)

40.4 01 April 2018 – 31 March 2019 (87 days)

40.5 01 April 2019 – 31 March 2020 (44 days)

40.6 01 April 2020 – 31 March 2021 (164 days)

40.7 01 April 2021 – 31 March 2022 (54 days)

[41]The Claimant in evidence said that he could not say that these figures were accurate but he had not disputed their accuracy in his witness statement and we were not taken to any evidence of the Claimant having disputed their accuracy at the time. He simply said in evidence that things were never recorded properly on the computer system.

[42]We accept that, whilst not factored into the Claimant’s sick leave, the Claimant reported feeling too unwell to attend work on nine days between 26 August 2021 and the end of the year and three days in March 2022. As the Claimant had exhausted the yearly sick-pay entitlement, he asked for these days to be processed as annual leave periods and the Respondent granted those requests. We accept the Respondent’s evidence that short notice requests for annual leave were as difficult to manage in its rosters as sickness absence [539-540].

[43]The year 2021 was a particularly difficult year for the Claimant. It was the year of:43.1 his diagnosis of bipolar disorder;

43.2 his then wife being hospitalised because of COVID and suffering long COVID (during which time he had sole responsibility for their young daughter); and

43.3 the subsequent breakdown of his marriage.

[44]The impact of these events, coupled with his bipolar disorder, of course had a significant impact on the Claimant. In early 2022 the Claimant attempted suicide.

[45]We will set out below our findings in respect of the Claimant’s absence in 2022 10 of 62 and 2023. The Claimant’s disability

[46]The Respondent admits that the Claimant’s bipolar disorder, diagnosed in 2021, amounts to a disability and that it had knowledge of his disability from 25 May 2021 [94].

[47]The Claimant’s evidence was that:47.1 he had had bipolar disorder since his late teens;

47.2 that he had probably got type 2 bipolar disorder which is more depressive than manic;

47.3 his periods of absence due to anxiety, stress and depression were periods of absence because of his bipolar disorder.

[48]The Respondent’s position was that there is no evidence that such periods were linked to the Claimant’s bipolar disorder and therefore that they were not disability related. We deal with this in our analysis and conclusions. Attendance in 2019

[49]In May 2019, to support the Claimant with a return to work following his longterm absence, the Claimant was temporarily redeployed as a Band 3 Health care Support Worker on Windswept for several months. Band three is lower than the Claimant’s substantive role banding but his band 4 salary was protected during that temporary redeployment [540].

[50]In July 2019 the Claimant was subject to a formal case review due to concerns about his attendance levels. Supportive measures were put in place (including reduced working hours, Dragon software and no night duties for 3 months) [540]. The Claimant did not recall this but said that these adjustments were due to an eye condition and not because of his bipolar condition which had yet to be diagnosed. As referenced above the Claimant had had 87 days absence [539] with an eye problem. Attendance in 2020 and into 2021

[51]Between 17 March 2020 and 5 April 2020 the Claimant was absent due to anxiety/stress/depression/other psychiatric illness [463]. He was then absent again between 27 August 2020 and 3 September 2020 due to cold/cough/flu [463]. This flowed into a further period of absence on 4 September 2020 which lasted until 22 November 2020 caused by anxiety/stress/depression/other psychiatric illness [463]. He was then off again with infections on 16 December 2020 and between 27 December 2020 and 10 January 2021.

[52]On 20 January 2021 the Claimant was referred to OH who prepared a report [142] which commented, amongst other things: He explained that he tested positive in December for Covid-19 and although now mainly recovered is still experiencing some post-viral fatigue. He also tells me his wife later contracted the 11 of 62 virus which resulted in her being hospitalised which he informs me had a profound effect on his mental health. He tells me he has suffered with anxiety and depression periodically for a number of years which he believes may be further affected with working shift patterns. Following assessment today with the inclusion of a well validated mental health tool anxiety and depression now appear mild which is promising. Post-viral fatigue is consistent following coronavirus and I am optimistic this will resolve in the coming weeks. As his wife has only recently been discharged from hospital and having a young child caring responsibilities are on-going although I do not anticipate this will be for longer than 2-3 weeks. In terms of long standing mental health issues shift working is likely to be a contributing factor and therefore if operationally feasible would advise consideration of re-deployment to a role working core hours to provide continuity and consistency. Although not within OH remit Michael has requested that this report contains information on where he would like to be re-deployed which is at the Early Intervention Team at Chatsworth House. Due to current residual fatigue and caring responsibilities estimate return to work in 2-3 weeks. If operationally feasible recommend phased return program and suggest 50% contracted hours during the first week with gradual increase over the remaining three weeks. It is also advised to promote recovery and support his caring responsibilities he refrains from working shift pattern and suggest days as a preferred option. As Michael has a long history of periodic episodes of anxiety and depression I am unable to rule out further episodes in the future and would advise management to reduce risk of this occurring consideration is given to either changing his working hours to days for the foreseeable future or re-deployment to a post where working day core hours can be accommodated. I would also suggest a Stress Risk Assessment is completed as this will help identify what is good about work and what he may find challenging. This can further be supported with discussing a Wellness Recovery Action Plan (WRAP), both can be found in […].

[53]The Claimant accepted that he did not work a night shift after this point. The recommendation was not that he could not return to work in the SIS team. OH suggested either day work or a move to a role where working day core hours could be accommodated. Hereafter we refer to the Early Intervention Team as “EI”.

[54]The reason for the Claimant’s absence transition from post viral fatigue on 10 January 2021 into mental ill health which lasted to 30 April 2021 [463]. 12 of 62

[55]On 04 March 2021 the Claimant’s then manager (Ms Durham) requested a one month extension to the Claimant’s full sick pay. As a result his full sick pay was extended to 26 April 2021 [159].

[56]During this period Ms Cox became responsible for the overall management of his team and others and she sought further OH guidance on the Claimant’s state of health. The resulting report dated 30 April 2021 said, amongst other things [143]: On speaking with him today he tells me he has been seen by a mental health specialist who has diagnosed him with a mental health disorder. He reports he is taking prescribed medication for this but has not to date received any psychological therapy. He explained he was initially referred to North Wiltshire for support but only had a few appointments and has since been advised his care will be transferred to New CMTH and is expecting a telephone assessment with them today. He informs me he is coping with activities of daily living although mood remains variable which is exacerbated with though of returning to working shift patterns and demands of his current role. Following assessment today with the inclusion of appropriate measurement outcome tools Alan appears to be experiencing severe depression and mild anxiety. Although his depression is considered severe it is felt with open dialogue with his employer in terms of support that can be offered a return to work is possible. Counseling therapy alongside his medication treatment is supported as combination of both is seen as the gold standard. It is hoped with further psychological intervention his mental health condition will be better managed although would urge management to contact him at the earliest opportunity to discuss adjustments that can be accommodated. The advice offered in the previous OH report remains the same and would request you discuss what is operationally feasible with Alan. Fitness to work is dependent on adjustments that can be accommodated. If as stated in the previous OH report can be implemented a return to work is expected at the earliest opportunity. However, if this is not possible further psychological intervention would be required to assist him with building resilience to returning to his substantive post although I am unable to rule out further absence in the future.

[57]Ms Cox could not remember if she had got hold of the earlier January 2021 report but thought it was likely that she had and we accept that she did on the balance of probabilities. 13 of 62

[58]On 1 May 2021 the Claimant emailed Ms Cox and his direct line manager Ms L Curtis to introduce himself and explain his situation [147-149]. He also sent an email of 5 May 2021 [144] to his Royal College of Nursing Union representative (Mr L Carter): I had a further conversation with Liz Cox today. She told me she had spoken to HR regarding my current situation and HR have said if i am well I am to return to my current role with a phased return and would be expected to carry out my normal duties within that 4 week period. Which would include Shift work of 8am - 4pm 2pm - 10pm 9pm - 8:30am My current role is fast paced due it being a crisis team, It is highly stressful. With the shift pattern above and the nature of the role it will have a detrimental effect on my mental illness of Bipolar with psychotic symptoms, which could cause a relapse of hyper- mania, mania and psychosis if I end up suffering with sleep deprivation and placed under high stress. HR did not mention of any reasonable adjustments being made to reflect that i have a new disability of Bipolar, which is a long and enduring mental health condition. [Ms Cox] is trying to get a copy of my occupational health assessment, but cannot due to the previous Band 8a [Ms Durham] being off sick with a broken ankle and the report has been sent to her. I was asked if i felt well to return to work. I declined to answer. I was also informed my current line manager [Ms Curtis] is expressing her concerns to HR about my return to work at the Swindon Intensive team, however i am not aware what these concerns are? Here is My Service access manager's mobile number incase you need to contact her […]

[59]The OH advice of 30 April 2021 remained the same.

[60]The Claimant had another call with Ms Cox and Ms Evans (HR) on 7 May 2021 the purpose of which was to discuss how the Claimant could be supported to return to work. We accept the Respondent’s case that the Claimant expressed interest in working in the EI team (early interventions) and so Ms Cox made enquiries with Ms Mills. She managed to arrange an interview for the Claimant [155] but the Claimant did not attend because of a viral infection. He did not ask for the interview to be rearranged.

[61]On 14 May 2021 Ms Evans sent the Claimant a lengthy email [158] confirming 14 of 62 that the core adjustment that the Claimant said he needed was for a more consistent shift pattern. She recorded that the Claimant had asked to work 9am to 5pm within the SIS team. Ms Evans also provided the Claimant with a hardship sick pay request form (as we note above, the Respondent had itself extended the Claimant’s full sick pay to 26 April 2021). Her email was supportive and empathetic.

[62]On 25 May 2021 OH recorded the Claimant’s diagnosis of bi-polar disorder and said that he remained unfit for work [166] and commented (amongst other things): Since speaking with my colleague, Alan tells me that he has continued to struggle to function well on a daily basis. He says that whilst family life is relatively stable currently, he adds that his wife is making slow progress in her recovery from her illness, which is naturally having an impact on him. He adds that the seriousness of her condition in January of this year had been the trigger for his hyper-mania episode and subsequent psychotic episode. Whilst they have not been repeated, he adds that he is currently experiencing some auditory hallucinations at night, although he adds that they have been manageable thus far. As you are aware, Alan remains in the care of the Mental Health Team, although he tells me that it is only recently that he has been able to access the appropriate level of support. I understand that his Psychiatrist has oversight of his medication and, whilst other medications have been discussed as part of his treatment, he tells me that he has remained on a therapeutic dose of his current medication for some months. A repeat of his level of functioning today, using the PHQ and GAD psychological tools is demonstrating a moderately severe depressive response and a mild anxiety. He reports persisting low mood, poor and broken sleep, low energy levels, poor and variable appetite, poor concentration, memory and heightened irritability. […] With regard to his work, Alan tells me that he is good at his job and that he performs well when he is feeling well. However, he struggles to contemplate a return to work at this stage, particularly in light of his irritability. He adds that the environment is loud and chaotic and that he would struggle to function well in the workplace in light of his symptoms. […] My concern for Alan at this stage is that he does not appear to be fit for work and my sense is that he would struggle in any capacity, were he to return. He continues to struggle with his activities of daily living and his level of functioning would suggest that his ability to remain present at work would be significantly compromised. As a result, I have asked him to see his GP as a matter of priority for a review of his absence. 15 of 62 As a result of our assessment today, I advise that Alan remains unfit for work and it is difficult to discern a date for his return, at least until he has had the opportunity to stabilize his mental health and until he is feeling the benefits of therapy. […]

[63]The Claimant was covered by a hardship payment for the period of 30 days from 1 June 2021 to 30 June 2021 [168]. He sought to reduce the financial impact of reducing to half sick pay by then taking one month of annual leave from 1 July 2021. Ms Cox showed that she was thinking about the needs of the Claimant by expressing concern about the fact that taking so much holiday would not give him much leave for the remaining 8 months of the holiday year [168].

[64]During this period Ms Curtis (Team Manager) contacted the Claimant on 28 June 2021 by email to say the following in respect of a return to work plan [172]: […] 1. Week One - We have agreed that your phased return will commence on Mon 02nd Aug 2021. You will complete one day this week to familiarise yourself with the environment and make sure your IT accesses have been applied for. 2. Week Two – Mon & Tues this week. 3. Weeks Three & Four - Will be the same Mon, Tues and Wed. 4. Weeks Five & Six – Will be the same, Mon & Tues, Wed off then Thurs & Fri. Your first full week back to work following your phased return will be 13th Sept 2021. We have then extended your back to work support by continuing 8-4 shifts throughout September which we can then of course review.

[65]A further OH report was obtained on 13 July 2021 and it advised a 6-week phased return to work period [173]. It said (amongst other things): […] He reports a gradually improving picture with regard to his mental health and a desire to return to work. […] . A repeat of his PHQ/GAD assessment today is demonstrating a mild depressive response and an absence of anxiety, which is encouraging. With regard to his work, Alan tells me that he is due to return on 2nd August following a period of annual leave. Whilst he understands that there is to be a phased return, he adds that he is unsure of the detail around this. He says that he is fearful of returning to his current environment, which he belives to be chaotic and he is worried that this 16 of 62 may compromise his progress so far. He stressed that he is keen to minimise the potential for a relapse in his condition, which he says has happened on previous occasions. On that basis, he says that he would prefer to relocate into a different role/environment, preferably in the longer term, and one that is less stressful. He also feels that regular daytime hours would support his mental health and provide some stability and I am inclined to agree with this. […] As a result of our assessment today, I advise that Alan appears to be fit for work and I suggest that he returns on 2nd August 2021, as planned and following his leave. However, it is possible that his condition could impact on his ability to carry out his position if his return to work is not managed well and if any arising or existing issues are not addressed. With regard to the proposed phased return and in light of his lengthy absence, a six week period will be helpful, to include 25% of his contracted hours during weeks one and two, 50% during weeks three and four, 75% during week five and increasing to 100% during the course of week six. In an attempt to discern whether any additional modifications and adjustments might be appropriate, a Stress Risk Assessment (SRA) is recommended. […]. It may also be helpful to provide Alan with a copy of our Wellness and Recovery Action Plan (WRAP) […] Whilst this plan is for the use of your employee, it may also be helpful for it to be shared with you and I encourage a dialogue with him around this. […] August 2021 Return to Work – SIS team

[66]From 2 August 2021 the Claimant did return to the SIS team working the fixed hours of 8am-4pm and building up his working time on the phased basis proposed by Ms Curtis over the course of three months. The Claimant did not go back onto shift work after this point.

[67]On 24 August 2021 Ms Curtis carried out a Management Supervision 1-2-1 meeting with the Claimant [549]. Her note of the meeting recorded as follows: […] He continues to feel that he is struggling and question if this is the right role for him. […] Alan knows the team well and they are all very supportive of him. Alan has returned to a new management team which has been an added difficulty for him as he has a very good relationship with his previous manager. […] Alan has been struggling with his diagnosis and needs time to come to terms with this and work out what he wants and how he wishes to move forward. Alan does not feel ready to do the WRAP plan but is happy that 17 of 62 we are talking about ways to support him at work. […] August 2021 - Ill Health Retirement Application and special leave

[68]At the end of August 2021 the Claimant submitted an application for ill health retirement [181-186]. We accept that the wording of the application suggests that the Claimant was not in good mental health. Indeed it prompted the Respondent to place the Claimant on paid leave. The Claimant declared that he felt permanently incapable of continuing his role.

[69]The Claimant subsequently, in particular at a meeting on 9 October 2021, confirmed that he would not be proceeding with his ill health retirement request [187].

[70]We accept Miss Cox’s evidence [LCWS14-15] that the Claimant was asked to provide a fit note by 29 September 2021, which was subsequently extended to 8 October 2021 as the Respondent did not receive a response from the Claimant. The Claimant refused to obtain a fit note but when asked whether he felt well enough to return to work, he refused to respond. Return to work October 2021

[71]The Claimant returned to work on 11 October 2021 following 6.5 weeks of paid leave [LCWS16] [187]. Ms Curtis arranged to meet with him for a return to work meeting to talk about his role and what the Claimant wanted. The Claimant was to work Monday –to Friday 9am to 5pm shifts until the end of October 2021 (after which it was anticipated that he would return to shift work). Ms Curtis made the Claimant supernumerary for the shifts in October. In fact at a meeting on 13 October 2021 Miss Cox agreed that the Claimant could work Monday to Friday 8am to 4pm on a super-numerary basis [188].

[72]On 20 and 21 October 2021 the Claimant made short notice requests for annual leave because he was feeling low and on 25 and 26 October due to feeling tired/sedated and it was agreed that the Claimant could work 9am -2pm for the rest of the week [539] [540] [188].

[73]On 27 October 2021 the Respondent’s OH advisor was unable to contact the Claimant. November 2021 paid leave - complaint from a carer

[74]On 02 November 2021 there was a complaint from a patient’s carer about the Claimant’s conduct and so the Claimant was placed on paid leave [LCWS19] [189]. The Respondent was concerned about the Claimant’s ability to reflect on his behaviour. On 4 November 2021 the Respondent asked for the Claimant’s consent, which he then granted, to speak to the Claimant’s care team.

[75]On 17 November 2021 OH reported, amongst other things: [197]: […] He reports feeling generally unwell currently with viral symptoms, although a lateral-flow test has apparently ruled out Covid-19. He tells me that having returned to work in mid-October, he is now on paid leave 18 of 62 following an incident with a Service User. […] Whilst he tells me that you remain supportive of him, he perceives that his colleagues struggle to be alongside him, particularly as he feels that they do not understand him or the impact of his condition on him. In addition, he tells me that he has continued to struggle in his current role, particularly as he describes the environment as chaotic and not right for his condition. He tells me that he has experienced more “highs” than “lows” this year and that the environment can make him feel more high, which has impacted negatively on his wellbeing. He tells me that he is keen to continue the dialogue with you around an alternative role and he feels that project work or home working would suit him best in light of his struggle. Despite Alan’s viral symptoms today, he engaged quite well in the assessment. A repeat of his psychological scorings is demonstrating a moderate depressive response and a mild anxiety. […] However, it appears that the nature his work continues to have a significant impact on his overall wellbeing and I strongly suggest that you continue the dialogue with him around this. […] Management As a result of our assessment today, I advise that Alan remains unfit for work at this stage, at least until these various issues are addressed. […] December 2021 -secondment to EI team

[76]The Claimant remained on paid leave and no formal action was taken in respect of the complaint by a service user.

[77]On 13 December 2021 the Claimant returned to work on a temporary secondment of three months to the EI team [190] [199]. This was at the Claimant’s request because he believed the role would be less demanding and stressful and more accommodating to his well-being needs. Ms Cox agreed to meet with him regularly and during the secondment the Claimant reported to Ms H Mills (EI Team Manager)

[78]On 17 December 2021 the Claimant was absent with gastrointestinal problems [463]. At short notice, on 24 December 2021, the Claimant told the Respondent that he needed to take 24 December 2021 to 3 January 2022 as leave to care for his daughter. The Respondent granted this as paid leave. [538]

[79]On 03 January 2022 the Claimant attempted suicide [191]. The Claimant was unhappy about it having been disclosed to the Respondent and withdrew his consent for them to speak directly to his care team [191] [200]. He was absent due to mental health reasons from 05 January 2022 to 07 January 2022 [463].

[80]On 28 January 2022 the Claimant attended a management supervision meeting with Ms Cox [203]. Comments from the meeting notes included: […] 19 of 62 Alan understands that when he moved to EI there had been recent concerns about his mental health and a carer had complained (never went formal) about his conduct during a couple of visits. It was therefore agreed that Alan should do only joint work to begin with at EI so we do not place him or service users at risk of a repeat incident. However then there was the incident at home which Alan himself reports was very impulsive [reference to his attempted suicide]. This gave his current line manager Helen concerns about him working clinically and following a discussion with myself it was felt best that he have more of an admin role for the time being, to protect him and others. The EI team also needed support in this role so he has been useful for the team. We talked today about how Alan is not happy doing this but understands why and we feel it is probably best he remains in this role until his case review. […] Alan has requested a flexible working pattern which was discussed. He ideally wants Early’s but to include a Sunday so he has split days off as he feels tired. Asked if there was any flexibility and he stated he could do a Late on the day before his day off. We agreed that I will discuss this with the team manager and HR and look at the roster. Subsequent meeting with HR who advised the following actions: 1. Referral to occy health 2. Alan needs to put the request in writing 3. Following the occy health assessment we need to set up a case review of attendance where his attendance will be reviewed, along with what alterations we have made so far. Any support measures put in place and targets set for the next 12 months. 4. Alan will not be authorised last minute AL (as he has over last week). It will be recorded as sickness going forward as he is not well enough to be at work. 5. Alan to look at his remaining leave and book regular leave to maintain his wellbeing.

[81]In an OH report of 8 February 2022 the Claimant was reported to be fit for work [208] and included the following comments: He reports an attempted suicide in early January in response to his wife’s intention to file for a divorce and I understand that you are aware of this. However, he adds that the event had been the first and last time he would take such action, particularly as he is mindful of his daughter’s needs. He reports a more stable mood currently, despite changes to his medication. Alan tells me that he remains in a temporary administrative role at the moment, in light of recent events. However, whilst he says that the 20 of 62 period he had spent in Early Intervention was brief, he tells me that this particular role would suit him and his family commitments better and he is keen to pursue redeployment in that area. […] However, I feel that it would be helpful for Alan to avoid patient facing duties until his new medication is established and until he is feeling the benefits of it. Alan was clear that his absence latterly had been as a result of the final breakdown in his relationship, although he adds that he has now come to accept this.

[82]OH referred again to the completion of a stress risk assessment and WRAP. 18 February 2022 – formal case review

[83]On 18 February 2022 the Claimant attended a formal case review for his sickness [212] because of his absence levels. Mr A Chesterton (Interim Operational Manager) chaired the meeting with Mr O Scriven (HR), Ms Curtis (Team Manager) and Mr T Kearney (supporting the Claimant) in attendance. At the meeting there was discussion of how the Claimant could be supported to improve his attendance and the Claimant expressed the view that a return to SIS would not work for him (he appears subsequently to have changed his view on this). The Respondent made clear that at that time that it was not envisaged that he could stay in the EI team long term as there was no substantive role for him and his secondment was being funded out of the SIS team budget.

[84]On 28 February 2022 Mr Chesterton confirmed to the Claimant his decision to recommend progression to a formal Health and Attendance at Work hearing [216-217]. Before it was held the Claimant took unpaid leave on 10, 11 14 March 2022, on 31 March 2022 said he was too unwell to come to the office and on 4 April 2022 did not attend work due to childcare reasons [340] [540] [538] [539]. 27 April 2022 – Formal Attendance at Work Hearing

[85]The formal attendance at work hearing was held on 27 April 2022. It was chaired by Mr Rice and attended by Ms Cox, Ms Evans, Mr Chesterton, the Claimant and Ms Hart (as note taker) [229-240]. Ms Cox presented the management statement of case [533-544] at the hearing and explained the Claimant’s levels of sickness absence since 2016 and the steps that had been taken to support his return to work. The Claimant was given the opportunity to respond and set out his case which he did via a letter prepared by a solicitor.

[86]The Claimant explained that he needed structure and flexibility in order to manage his bipolar disorder and Ms Cox explained that the 9am-5pm work pattern would be difficult to manage within SIS, but had been permitted while Alan was seconded to the EI team.

[87]The Claimant said that he would like permanently to be deployed to the EI team (but, as we have said, refused to be put on the redeployment register (which would have given him priority over other candidates) and had not taken up an opportunity to interview for a substantive role in the team which had then been 21 of 62 filled. We accept Ms Cox’s evidence under cross examination that she and HR had made clear to the Claimant that if he went on the redeployment register it was not necessarily the case that he would lose his job in the event that he could not be redeployed within 12 weeks.

[88]Ms Curtis and Ms Cox had tried to work with the Claimant to complete a WRAP (a tool to help monitor wellness and how to support an employee) but the Claimant had been unwilling to engage. In evidence the Claimant said that a WRAP was not necessary because he had a Crisis Contingency Plan (“CCP”). We do not accept that this was a reasonable stance for the Claimant to take. A CCP is not specific to the workplace in the way that a WRAP is.

[89]At the hearing the Claimant said that that there were two individuals in the SIS team who he said (for reasons related to his family that we do not need to explain in this public judgment but which for ease we call the “Historic Incident”) he found difficult to work with. He said that working with them exacerbated his mental health condition. He had told Ms Cox and Ms Curtis about this in February 2022.

[90]Mr Rice recognised how difficult 2021 and the start of 2022 had been. He acknowledged, amongst other things that the Claimant’s absences through sickness between January and April had fallen to five days and that the last two pieces of audit work completed by him in EI were of a good standard. On the basis that the Claimant was keen to return to work and agreed to do things such as work with his managers to complete a WRAP [238] he was prepared to give the Claimant a further chance to improve his attendance to the required level (in the event the Claimant never completed a WRAP plan). It was agreed the Claimant’s redeployment to the EI team would be extended for a further month to allow his line managers to explore sustainable reasonable adjustments with him and it was also agreed that the panel would reconvene in 3 months if required. Mr Rice sent the outcome letter on 5 May 2022 [205] [262]. Performance in the EI team

[91]We note here that we accept that, from the perspective of the EI team, the Claimant’s secondment there had not been a success. We accept Ms Cox’s evidence in this regard [LCSWS9-10] [538-539] [573-575] [582-583]:91.1 He was not performing the clinical duties associated with the role for a large part of the secondment [201-204].

91.2 When he was asked to do clinical work he failed to turn up to visits and work alongside staff;

91.3 He made unilateral decisions to work from home on a large number of occasions, despite Ms Mills informing him that a core part of his role was to shadow colleagues when carrying out face to face assessments and that he should be in the office so that she could monitor and support his wellbeing;

91.4 He distracted others whilst working in the office; and 22 of 62

91.5 He had not been successful in maintaining his attendance whilst in EI and working core hours, had had the absence and leave we refer to above and had failed to attend work on 4 April 2022 due to childcare reasons. May 2022 – Return to the SIS team

[92]The Claimant did not in fact want to have his time in EI extended and he returned to the SIS team on 9 May 2022. It was agreed that the Claimant’s shift pattern would be adjusted to a fixed schedule of 8am-4pm, Monday to Friday, for an initial 3-month period. Ms Cox met with the Claimant and set an attendance target of 92% (permitting double the normal level of sickness absence). In the event the Claimant remained on the 8am -4pm Monday to Friday arrangement until his final period of sickness absence (from which he did not return).

[93]There was a management supervision meeting with Ms Cox on 13 May 2022 and the notes record, amongst other things [271]: Is overwhelming being back at times but is trying to focus. Has a lot going on outside of work. […] Suggested to Alan that he can reduce his hours – change his contract if this helps […] Team are feeling supportive to him at the moment. Alan not wanting to look at a WRAP plan today. Agreed to look at his one that he has done with his CC. Reluctant to do one for work. […] Alan has requested a flexible working pattern which was discussed. He ideally wants Early’s but to include a Sunday so he has split days off as he feels tired. Asked if there was any flexibility and he stated he could do a Late on the day before his day off. We agreed that I will discuss this with the team manager and HR and look at the roster. Subsequent meeting with HR who advised the following actions: 1. Referral to occy health 2. Alan needs to put the request in writing 3. Following the occy health assessment we need to set up a case review of attendance where his attendance will be reviewed, along with what alterations we have made so far. Any support measures put in place and targets set for the next 12 months. 4. Alan will not be authorised last minute AL (as he has over last week). It will be recorded as sickness going forward as he is not well enough to 23 of 62 be at work. 5. Alan to look at his remaining leave and book regular leave to maintain his wellbeing.

[94]Ms Cox made a separate note of a discussion with the Claimant about concerns he had about working with two people in the SIS team who were related to the Historic Incident. This meeting occurred without one of the Claimant’s managers who was one of the people with whom, at the hearing with Mr Rice, the Claimant had said he struggled to work. The note recorded [584] and we accept that it is a true record of the discussion: Met with Alan separately to [Manager] on 13th May 23. He stated that he still wants to return now rather than in 1 month. He reported that he feels the team is very supportive of him generally, although has concerns that they saw him very unwell. We spoke about [Supervisor Name] and [second person related to the Historic Incident] being in the team and he reported that he did not want to talk about this further and that he feels ok working alongside them. He gets on with them both and does feel ok working with them. He agreed that he will raise this if it becomes a concern to him. He is happy to have [Supervisor Name] as supervisor. We agreed that Alan can attend appointments but please give us as much notice as possible so we can cover the shifts safely. We will continue with the Mon-Fri 8-4 shift pattern for the next 3-6 months to allow Alan time to settle back into the team.

[95]From June 2022 to November the Claimant made a made a number of requests for last minute annual leave, had absence for non-mental health related reasons, had unauthorised absence and had six days absence with stress [340-341]. Over this period there were management supervision meetings with him on 8 July 2022 [275-277], 24 August 2022 [278-280] and 19 October 2022 [281]. At the October meeting the Claimant said that he felt that he was relapsing and said he was not sleeping but was not feeling ‘hyper’. As the Claimant had breached his sickness target a new target was set for the following 3 months of four days absence. The Claimant said that he wanted a Monday to Friday shift pattern of 8am-4pm but gave as the reason that his wife works every weekend [281]. January – February 2023 – Flexible working request

[96]The Claimant had five days absence between 9 January 2023 and 13 January 2023 with a virus or other such illness [265] [285] [341].

[97]On 20 January 2023 Ms Cox and the Claimant exchanged emails as follows [266]: Ms Cox to the Claimant 24 of 62 Hope you are well? We are well overdue for a review of your working pattern and need to do so. It is getting harder to facilitate the Mon-Fri E’s. Can you have a think and send me some alternative shift pattern you may be able to do? I am meeting with [Claimant Supervisor] next Friday so would be really useful to have them before then so we can discuss and then meet with you to look at options? If you like we can arrange a date now to meet with you so you can plan and you can invite your IPS worker if you like? Looking at rosters and diaries – how does Monday 30th Jan at 12 noon fit with you both for us all to meet? Claimant to Ms Cox Hi I am happy to talk to discuss how we move forward however I fell I may have to talk to my Union first regarding my shift patterns and how we move forward as my illness and difficulties managing this has not changed. I did ask a few months ago about a change of role as I was informed a post may become available in EI and i asked for this to be discussed with HR about possible transfer but we have not been able to meet up to discuss this for various reasons.

[98]Between 24 and 25 January 2023 emails were exchanged in relation to the Claimant making a flexible working request [286]-[287] [288].

[99]On 30 January 2023 the Claimant submitted a flexible working application [290- 292]. On the Form the Claimant said: I would like to apply to work a flexible working pattern for the following reasons(s): I have a disability of Bi Polar disorder and 50/50 childcare responsibility as a parent to a young child that is 6 years old. I have a long an enduring with the following issues Symptoms can last over a few weeks, months, or even years. The symptoms vary during the manic and depressive phase. And without any symptoms, in between episodes of mania and depression. The manic phase is characterised by:• Extreme happiness, hopefulness, and excitement

• Irritability, anger, fits of rage and hostile behaviour

• Restlessness

• Agitation

• Rapid speech Poor concentration and judgment 25 of 62

• Increased energy

• Less need for sleep

• Unusually high sex drive

• Setting unrealistic goals

• Paranoia The depressive phase may include:

• Sadness and crying

• Feelings of hopelessness, worthlessness, and guilt » Loss of energy

• Loss of interest or pleasure in everyday activities

• Trouble concentrating and making decisions

• Irritability

• Need for more sleep or sleeplessness

• Change in appetite

• Weight loss/gain

• Suicidal thoughts and attempts at suicide Having a set schedule provides me with stability and predictability to help me manage with bipolar disorder, as sudden changes in routine can trigger manic or depressive episodes. Additionally, having set office hours makes it easier for me to manage my symptoms and access necessary treatment. Childcare issues can also be a significant stressor for me, and the ability to work during traditional office hours will alleviate some of that stress. It also enable me to be present for my daughter during important moments and to be more involved in her upbringing, which is essential for her wellbeing. Furthermore, implementing a flexible work arrangement allows me to balance my work and personal responsibilities more effectively, which can lead to increased productivity and job satisfaction. In conclusion, allowing me to work Office hours only would be a reasonable accommodation, as it would help me manage my bipolar disorder and childcare responsibilities, while also being beneficial for my overall well-being and productivity. 26 of 62 Currently there are various members of staff who a doing training and further education or have childcare needs that are being accommodated by AWP and the team and my needs should be addressed as I have protected characteristics under the equality act 2010 due to me having a disability of Bi polar disorder Describe your current working pattern days/hours/ times worked (if you are currently working flexibly, when was this agreed?): I have been working 8am - 4pm Monday to Friday for the past 10 months that has been agreed by management on adhoc agreement Describe the working pattern you would like to work in future (days/hours/time worked): I would like to continue with the above pattern I think this change in my working pattern will affect the service and my colleagues as follows: Over the past 10 months I have been supported with set hours and would like this to continue however, I understand that currently due to various members of the team reducing their hours due to them starting training this will have an impact on service and the business needs due to the team being short staffed. I think the effect on my employer and colleague can be dealt with as follows: I am not sure how resolve however I open to discussion.

[100]Ms Cox met with the Claimant to discuss his request on 2 February 2023.

[101]On 03 February 2023 the Claimant left his shift early at 2.30pm for childcare reasons [269] [341] and on 4 and 5 February 2023 he took annual leave at short notice [269].

[102]On 6 February 2023 Ms Cox sent her decision on the Claimant’s flexible working request to the Claimant by email [296-297]. We set out her decision in full: Re: Formal Flexible Working Request Following receipt of your application and our meeting on 2nd Feb 2023, I have considered your formal request for a new flexible working pattern, where you cite the reasons for your request as having a diagnosis of Bipolar disorder and having 50/50 parental responsibility for your 6 year old child. Unfortunately, I am unable to accommodate your request for the following business grounds: ▪ Detrimental effect on ability to meet patient demand/expectation. 27 of 62 ▪ Inability to recruit additional employees ▪ Detrimental impact on quality. ▪ Detrimental impact on performance. The grounds apply in the circumstance as have you have noted there are several other staff who are requiring study days on certain days to allow them to complete their studies. The team also has a lower number of Band 4 staff than needed to cover the current shift pattern, so there is less flexibility than there has been at times. We have struggled to accommodate this shift pattern for the last months, but have done so to allow you to settle back into the team/ work and have asked on several occasions that you give us alternative patterns which may suit you. At times you have muted thoughts but not given us any concrete suggestions. It has been made clear, all along that this would be changed. We agreed to see you through the Christmas roster and then would review. We have also noted that there have been several times when you have had to leave early to pick your daughter up with indicates that this current pattern is not without difficulties. At present you also owe a lot of hours to the trust and are saying that this will be difficult to pay back. A different pattern may give you some flexibility to do this (at a slow pace). We have looked at your reasons for consideration for flexible working and agree that having a set routine would be beneficial for both childcare reasons and also your mental health, so based on previous discussions we have had, we agree to continue to you not doing night shifts. We have also looked at your previous patterns and also agree that rest is important so have not put you on a Late one day followed by an Early the next. We are also happy to split you days off as previously discussed to help with rest periods. Based on these factors we have come up with the 2 possible patterns below: Monday Tuesday Wednesday Thursday Friday Saturday Sunday Early Off Early Early Early Off Early Late Late Off Further potential pattern – Monday Tuesday Wednesday Thursday Friday Saturday Sunday Early Early Early Off Early Late Late Off Late Off Or we are happy to discuss options when we meet this week (2 weeks time now, as you have since called in sick), including a 2 week rolling roster if that is any better. Then your working pattern will change to the 28 of 62 new pattern in 4 weeks time. Should you feel your request has not been handled in a reasonable manner, or you believe a decision has been made based on incorrect facts, then you have the right to appeal. You can do so by submitting an appeal by email to awp.HRBoardAppealsMailbox@nhs.net within 10 calendar days of receipt of this letter. If you have any questions please contact me to discuss them as soon as possible.

[103]We accept Ms Cox’s evidence that by February 2023 the Respondent could not accommodate the Claimant working Monday to Friday on earlies. We accept that if the Claimant was given earlies Monday to Friday, that would use five of the 14 early slots available on the roster and would mean that the smaller pool of B4 staff would have to work a higher proportion of the more unsociable late and night shifts. The Claimant did not appeal against this decision nor did he enter into the dialogue proposed by Ms Cox. Of course a disabled employee is entitled to more favourable treatment than non-disabled employees and an employer can have a duty in law to make reasonable adjustments with that consequence for those who are not disabled. We make it clear that we have not overlooked that in our decisions on this claim (notwithstanding that the Claimant does not bring a complaint under Section 20 and 21 EqA – the claims he did have under those sections having been dismissed on withdrawal).

[104]As of 2024, nights are covered by agency staff at B6 and at B4 by bank staff and substantive staff. We accept Ms Cox’s evidence (albeit of limited relevance) that this development, had the same decisions needed to be taken today, would most likely not have changed the Respondent’s ability to accommodate the Claimant in Monday to Friday early shifts. 6 February 2023 – sickness absence from which the Claimant does not return

[105]On 6 February 2023 the Claimant told the Respondent that he would be on sick leave for the remainder of the week and the Claimant did not return to work before his dismissal by the Respondent [269] [341] [463].

[106]An OH report of 16 February 2023 advised [298], amongst other things: He informs me his laryngitis symptoms are being treated with antibiotic medication although is currently on his second course and is still experiencing some throat discomfort. In terms of his mental health decline, he informs me he feels bullied at work, coerced into staying in his current role and reports previous OH advice has not been fully facilitated. He states that due to his underlying mental health condition he needs structure to his day and has found when working shifts this has a significant impact on his mental health.

[107]The Claimant had not of course been working shifts since August 2021. The OH report also made clear that the Claimant had not been taking his prescribed medication for his mental health disorder for the past year due to adverse 29 of 62 effects. A mental health questionnaire indicated he had severe depression with moderate anxiety which the OH adviser said appeared to be reactive to perceived workplace stress. The OH adviser gave the opinion that with appropriate medication and therapy his mental health could be stabilised however without any real or perceived issues being addressed at work poor attendance would be likely to continue and, as shift work appeared to be a trigger to mental health declines, management may want to consider redeployment to a role where he would able to work within core office hours (as he had been since August 2021). She again suggested that the Claimant complete a WRAP plan.

[108]Notwithstanding his mental health condition, we do not consider that the Claimant’s response to the manner in which Ms Cox turned down his flexible working request was reasonable. She had suggested alternatives that she thought might meet his needs and had proposed a dialogue if they did not. The Claimant chose not to engage in that dialogue having himself, in his own request, acknowledged the difficulties with accommodating what he was asking for Fit notes – February 2023 onwards

[109]The Claimant’s sick notes over the subsequent period recorded the reasons for his absence as follows:109.1 21 February 2023 (for 13 February 2023 to 26 February 2023) – depression [302]-[304].

109.2 02 May 2023 (for 15 April 2023 to 13 May 2023) - depression and medication dose changes [320].

109.3 19 May 2023 (for 14 May 2023 to 05 June 2023) - depression and medication dose changes [323].

109.4 25 July 2023 (for 4 July 2023 to 31 July 2023) – work related stress [361] 24 May 2023 – absence case review meeting

[110]On 24 May 2023 the Claimant attended an Absence Case Review meeting [325] because of the level of his continued sickness absence. Ms S McAuley (Operations Manager) chaired the hearing with Mr Scrivin present from HR and Ms Hart as note taker. The Claimant was accompanied by his Union representative Mr Carter. Ms Cox presented her management perspective on the sequence of events to that point. She noted that the Claimant had been placed on his preferred 8am-4pm shift pattern but that it had not been successful in sustaining his attendance. Mr Carter queried whether the nature of the SIS team was appropriate for someone with bipolar disorder [329].

[111]The Claimant said he could not work two people in the SIS team (because of the Historic Incident) and he could not be on 8-4am in the SIS [330]. Ms Cox had had a telephone conversation with the Claimant on 13 May 2022 [584] prior to the Claimant’s return to SIS from EI which we accept suggests that the Claimant did not have a problem with two people who he saw as associated with the Historic Incident and he was happy to have one of those two people as his 30 of 62 supervisor. He had not subsequently raised this as a material concern but sought to argue that he had been pressured in to agreeing to working with the two people concerned. We do not consider that this is corroborated by the contemporaneous evidence and the Claimant appeared to us, at the material times to have had the strength of character to raise matters with which he was not happy (notwithstanding significant mental ill health).

[112]The outcome of the meeting was that Ms McAuley was satisfied that the extended attendance management plan dating to 2021 constituted sufficient attempt to help the Claimant maintain his attendance. She noted the Claimant’s reluctance to complete a WRAP plan. She recorded that whilst the Claimant was working in SIS he had been on a 8am -4pm shift but it had not affected his attendance and Ms Cox had explained that there were other options (as per her response to his flexible working request) but the Claimant said he needed the set pattern. As regards redeployment Ms McAuley found that there were no vacancies in the EI team proposed by the Claimant and the significantly lower staffing in the Windswept team coupled with the absence of any B4 roles mean that they could not accommodate the Claimant working 8am-4pm Monday to Friday. She also recorded that mutual termination was not proposed by the Claimant, nor was ill health retirement (that having been previously requested by the Claimant). In the circumstances she decided that a formal hearing should be held.

[113]An OH report of 6 June 2023 commented that no further OH reports would be necessary and that it would be a management decision as to whether adjustments can be accommodated or not. The report said that if mutual resolution of ‘perceive work-related stressors’ cannot be reached, the prospects for sustainable and regular service “would seem highly unlikely” [347-348]. The report commented that the Claimant was experiencing an impact on his mood, sleep and elevated anxiety, that he continued to engage with clinical support and take appropriate medication as prescribed which was stable.

[114]This report would have been more helpful had it identified the perceived workrelated stressors. Having pointed out that stress should not be treated as an illness, but rather a process, it also included the following sentence (our emphasis) “it appears Alan’s decreased mental state and associated symptoms are related to the perceived work-related stress triggers, as identified above, which are continuing to have a detrimental effect on his health rather than his underlying health concern.” It talked again about completion of a stress risk assessment to assist in identifying what is positive about work as well as what stressors the Claimant perceived. The OH adviser recorded that the Claimant’s perception was that he was no longer able to tolerate the stress of his current role and therefore it was unlikely he would tolerate a return and that the Claimant was unable to perform his role based on “the current work environment”.

[115]On 06 June 2023 Ms McAuley sent her outcome letter from the absence case review hearing [349-355]. It informed the Claimant: The purpose of this hearing is to discuss your sickness absence with you and your line manager and to make informed decision as to what actions may need to be taken. I must inform you that one possible outcome from 31 of 62 this hearing may be to end your contract with the Trust due to Capability - Ill Health. I would advise that if you have not already, please familiarise yourself with the Health & Attendance policy and best practice guide. If you have any concerns as a result of this letter or are unable to personally attend, please can you discuss this with me on receipt of this letter so we can make alternative arrangements. […] It was agreed that exploration around possible options for transfer to another team could continue in the background. You noted that childcare and travel considerations would make options outside of Swindon challenging, although HR can explore what is available. July 2023 - formal hearing and the Claimant’s dismissal

[116]On 11July 2023 the Claimant outlined his concerns to the Respondent in a detailed report [363-411]. The Claimant provided the Respondent with a severance request letter [428-429]. The severance letter proposed that the Claimant be put on special leave on full pay to help him participate in what he referred to at the resolution process. He asked for compensation of two years’ pay and said that he was willing to enter into a non-disclosure agreement.

[117]The final hearing took place on 11 July 2023 [notes 412-427]. Mr Rice chaired the hearing. Mr J Bunce attended as HRBP with Mr Scrivin attending as Senior HR Advisor, Ms Cox attended to summarise a detailed report that she had put together and the Claimant attended with his Union representative, Mr Carter. Ms Hart took notes.

[118]Mr Rice had Ms Cox’s ill-health management report [334-346] with the correct appendices. He had the OH report dated 6 June 2023 [347-348] and the letter from Ms McAuley of 6 June 2023 [353-356].

[119]Ms Cox set out the management statement of case based on her report. The Claimant then had an opportunity to state his case and asked the panel to read his report [363-441]. The Claimant also put forward his settlement proposal [428- 429]. The Claimant said that he did not see a way forward and that he and the Respondent should come to a settlement to allow him to go his way and the Respondent to go its [424]. He said that when he had told Ms Cox in May 2022 that he was happy to work with the two people related to the Historic Incident, he had been lying and had just tried to keep his head down and get on with it. He accepted that his attendance had been appalling [426] but said that he felt that the Respondent had not supported him with his enduring mental illness.

[120]There was a break during the hearing and there was a dispute about what was said by Ms Cox and the Claimant during that time. Ms Cox said [LCWS54] the Claimant approached her and apologised for everything he had said about her when stating his case at the hearing. She said the Claimant told her that what he had said was not true. The Claimant’s evidence to us was that the Respondent had asked him to provide a photocopy of the severance proposal documents in that break and approached Ms Cox and apologised “for the things 32 of 62 being said in the room” but he had to protect himself and it had got heated. He said that he did not admit to lying. The Claimant’s evidence was that Ms Cox replied that she hoped the Claimant got what he asked for (making reference to the severance proposal). The Claimant said he replied to Ms Cox that he did not believe the matters discussed at the hearing were coming from her but HR were “loading the gun and [Ms Cox was] firing it”. On the balance of probabilities we do not consider that the Claimant told Ms Cox that he had been lying and we also do not consider that she told him that she hoped he got what he wanted. We consider it more probable that she just pointed out that the Respondent and the Claimant were in a process (indicating that it was not personal).

[121]Mr Rice needed more time to consider the large quantity of information presented to him and so he adjourned the hearing. He then wrote to the Claimant on 19 July 2023 to explain his decision (the outcome of the hearing) [430-431]. Owing to its importance, we quote that letter in full: I am writing following the formal hearing held on 11th July 2023 in line with the Attendance & Health at Work Policy. This meeting follows on from a similar meeting held on 27th April 2022. During the meeting, we discussed your Health Condition management and although it is not my intention to reproduce the level of information noted in the attached minutes, I will look to draw upon some of the points raised by both management and yourself. Prior to Liz Cox presenting the management case, I presented a brief outline of the recommendations put forward at the previous hearing. These included:• Providing management consent to work with your care team

• Sitting down with your manager to understand a WRAP plan as recommended by OHS

• Consideration towards reducing your hours through a flexible working agreement Liz presented a background of your absence management from 2019 onward, including the continuation of your attendance pattern following the April hearing. Whilst acknowledging you were initially on target for the first 3 months to meet the adjusted 92% target (approximately 22 days) over a 12-month period this was not sustained and you have been off work through long-term sickness since 21st February 2023. One of the recommendations put forward from our meeting last year was to work collaboratively with Liz towards completing the WRAP plan. Whilst stating that Liz could have insisted upon completion of this plan during supervision with her, you admitted upon meeting with Sarah McAuley on 24th May that you felt coerced into saying yes to the recommendation from the panel in order to keep your job. The majority of your own presentation to the panel was a repetition of the issues leading up the final hearing in April 22, which included reference 33 of 62 to the poor care you had received from the North Wiltshire Intensive Service and the New CMHT. As noted in my outcome letter from last year, these concerns had been acknowledged and taken into account, when deciding against dismissal and continue with the management of your attendance in accordance with the Attendance & Heath at Work policy. In your submission, you acknowledged Liz Cox has been of great support over the past 12 months, and proactively maintained contact with you during your lengthy period of absence. You also highlighted the difficulty with continuing to work with two members of staff who were related to [the Historic Incident]. When questioned further on the same information presented to the panel last year when you claimed to be in a better place and that you were ok with working with them, you clarified that you had lied to the panel at this time. At the end of your presentation, you submitted a letter proposing a settlement agreement for what you considered was a significant breach of trust in the working relationship. Although the contents of the letter were noted, it was the panel’s decision to proceed with the conclusion of this process. Following conclusion of both presentations it was agreed that I would write to you with an outcome after the panel had taken time to review the documentation you brought with you to the meeting to give full consideration of the evidence presented. Having reviewed all the documentation and in view of the discussion and the medical advice presented on the day, I have decided that despite extensive efforts to provide you with support to do so: ▪ you are unable to fulfil your role due to an underlying health problem/number of unrelated episodes of ill health ▪ you are unable to fulfil your role and suitable alternative employment options have not/cannot be found ▪ reasonable adjustments have been explored but unfortunately have failed/become unreasonable, options have been explored but unsuccessful I am therefore writing to you today to issue you with 11 weeks’ notice from the date of this letter and confirm that your employment will be terminated with effect from 3rd October 2023. Your reasons for leaving will be on the grounds of capability due to ill health. Any annual leave owed to you will be paid along with 11 weeks’ notice at full pay. A leaver’s form will be completed and your final pay slip will be forwarded to your home address. You do have the right to appeal against this decision and should you wish to do so, please email […] within 14 days of receipt of this letter. 34 of 62 Any appeal would be heard by Alex Luke, Divisional Director of Operations for BaNES, Swindon and Wiltshire. I am sorry that your employment with us has ended in this way and would like to take the opportunity to thank you for all of your hard work and wish you all the best for the future.

[122]The Claimant started ACAS early conciliation on 16 August 2023 which concluded on 31 August 2023. He issued his claim in the Tribunal on 27 September 2023 and he did not apply to extend the claim period beyond that date. Appeal against dismissal

[123]The Claimant submitted an appeal on 01 September 2023 [435-436] saying: I am writing to formally appeal the decision to terminate my employment with AWP Mental Health Services on the grounds of ill health. I believe that my dismissal was unfair and was a result of inadequate support, discrimination due to my disability (Bipolar Disorder), and a failure to provide reasonable accommodations in the workplace. Additionally, I am challenging AWP's claim that no position was available for me within the company, as I firmly believe that more could have been done to retain my employment. Discrimination and Lack of Fair Treatment: I contend that I have not been treated fairly and equitably compared to non-disabled staff members. My Bipolar Disorder is a recognized disability under the Equality Act 2010, and I have the right to expect fair treatment and reasonable accommodations to enable me to perform my duties effectively. Failure to Address My Concerns: Throughout my tenure at AWP Mental Health Services, I expressed concerns about my working conditions and personal factors that negatively impact on my illness of my bipolar disorder. These concerns were not adequately addressed or taken seriously by the organization. It is imperative for employers to actively engage with employees regarding their concerns and challenges. This includes exploring reasonable adjustments that could benefit someone with bipolar disorder working in a mental health organization. Some of these reasonable adjustments include: Reasonable Adjustments to Support My Bipolar Disorder: I believe that AWP Mental Health Services could have implemented several reasonable adjustments to support me effectively in my role within the mental health team. These adjustments include:a. Flexible Working Hours: Allowing flexibility in my start and finish times 35 of 62 to accommodate mood fluctuations and energy levels, enabling me to optimize my productivity during periods of stability.

b. Remote Work Options: Providing the option to work remotely when necessary to manage my condition or when the office environment proves overly stimulating.

c. Job Sharing or Reduced Hours: Offering job sharing arrangements or reduced working hours to prevent burnout and support better work-life balance.

d. Regular Breaks: Ensuring that I had the opportunity to take regular breaks during the workday to manage stress and recharge.

e. Mental Health Awareness Training: Providing training for colleagues and supervisors to raise awareness about bipolar disorder and how to support a colleague with the condition effectively.

f. Secondments are part of the flexible working policy: A temporary or permanent move to another post that has the working pattern you have requested. Constructive Dismissal: The work conditions I experienced, including the fast-paced and highly stressful environment, have exacerbated my condition and made it untenable for me to continue working in my previous role. This can be viewed as a form of constructive dismissal, where I felt compelled to resign due to the intolerable work conditions. I continued to work with Awp and follow all policy's and procedures to maintain employment. Challenging the Lack of Available Positions: I challenge AWP's assertion that there were no available positions for me within the company. Given my dedication to mental health and my skill set, more proactive steps could have been taken to explore alternative roles and training options within the organization. My willingness to adapt and transition into a different position was never sufficiently considered. I kindly request that AWP Mental Health Services reconsiders my dismissal, engage in a meaningful dialogue to address the issues raised in this appeal, and conduct a thorough review of the available positions and training options within the organization. I am committed to contributing my skills and expertise to the organization and am open to exploring alternative positions that would allow me to continue serving the mental health community effectively. I am eager to resolve this matter amicably and am willing to provide any necessary documentation or medical records to support my case. Please respond to this appeal within a reasonable timeframe to initiate the process of reinstating my employment or exploring alternative options 36 of 62 within AWP Mental Health Services. Thank you for your attention to this matter, and I look forward to a constructive resolution.

[124]On 12 September 2023 the Claimant was invited to an appeal hearing. That hearing was chaired by Mrs Luke 29 September 2023 [notes at 442-453]. It was not a full re-hearing of the grounds of dismissal. In attendance were Mrs Luke (SW Divisional Operations manager), Ms J Gasiorowski (Senior HR Business Partner), the Claimant, Mr Carter and Ms Hart as note taker. Mr Rice also attended to present the management response to the appeal [472-479] [PRWS27]. The first part of the hearing focused on the Claimant giving his explanation for his challenge to his dismissal. Mr Rice then explained his decision to dismiss.

[125]There was the following exchange at the hearing: Mrs Luke: What do you want from this today Alan? Claimant: I need time with Leigh – I need you tell me what to say (indicating LC) Mr Carter: I can’t tell you what to say. My belief is that he will not be offered another role. Mrs Luke Why? Mr Carter Because of the strength of the case put to the panel. Mrs Luke: What is the request from you? Mr Carter: To reinstate Alan, and find Alan another role Mrs Luke: With using the redeployment register? Mr Carter: Without the 12 weeks time frame. Claimant: You said that people don’t get them roles. Mrs Luke: I didn’t say that, Leigh did. I am still not clear what your ask is. Mr Carter: My advice is he goes on redeployment register for 12 weeks, and give him the opportunity to go to interview, it reinstates, his ability to apply, and reinstates his salary, the only question is where he would work. Mrs Luke: There is a question of whether you are fit for work, Claimant: I would say I was fit to work I worked really heard with my team in titrating on Venlafaxine to get me back to work, but unfortunately a letter was sent to me about going through a process; it flattened my mood, and I was not able to recover as quick as I liked. I would say I have been fit to work since May. But the reason I am off sick, and in my 37 of 62 sicknote is work related sickness, it is about where I am being placed. It is all in my report, they same things keep cropping up, they come up and affect my mental state, and I go sick, I don’t feel I am treated fairly, I have to protect my self, I don’t want to go on redeployment and then be out of a job; Ms Gasiorowski: There are not a lot of people on the register Claimant: I would still have to interview Ms Gasiorowski: If it is different to your role now, you would have to interview. For most, you would have informal interview. Claimant: The role in EI, I would be eligible for that; if you had said that if I was going on the redeployment register and guarantee me that job. Mrs Luke: It is difficult to give a guarantee; Claimant: The person was leaving Mrs Luke: It is difficult to say anything about the specific case; but I don’t understand why you wouldn’t go on the redeployment register. Claimant: It is my protection; I may go for that job but I may not get it. Mrs Luke: 23% of our jobs are vacant in BSW Claimant: I have to protect my self it is not for the want for me asking to go anywhere else. Mrs Luke: Would you be happy to go on the redeployment register now? Claimant: Yes if that is what Leigh advises. Mr Carter: He will be on the redeployment register for twelve weeks, whereas now he would be out of a job on the 3rd October. Claimant: I want you to read this (indicated folder) Mrs Luke: Our role is to see if the panel’s decision was reasonable when they made the decision, not looking at the previous meetings. Claimant: Okay, I can demonstrate laws that were broken, with all due respect I have my legal team looking at it, and we are going to tribunal Mrs Luke: Which again is contradictory for you saying you are wanting to come back to work. Claimant: What I am being advised to say and what I want to say is very different. Ms Gasiorowski: What do you mean, if there is something you want the panel to consider, if you want the redeployment, or any other option we 38 of 62 need to hear it. Claimant: I don’t want to back myself in the corner. Mr Carter: As a fresh proposal for the panel to come up with was completely new, we didn’t consider it. It was said in the meetings that Alan would continue with SIS. Claimant: Which obviously I have said, is not suitable AL Would you engage with redeployment process? AC Yes, right now I would Mrs Luke: Would you be able to engage with the process, going across BSW, going out to those teams, and arranging visits? Claimant: I would say so yes. […] Claimant (responding to a comment from Mr Rice): I disagree with what you are saying on the grounds that if you put me somewhere else and give me an opportunity to do something that is supporting me I would; but put me in Sandalwood Court, and SIS, no shadow of a doubt it would not work. I had to protect myself from being unemployed, but if you can say there is a position in Devizes or there is a special role I can do an audit – I am open to these but putting me into Sandalwood Court, it will fail

[126]It was only after he had been dismissed that the Claimant agreed to go onto the redeployment register. The hearing adjourned for Mrs Luke to consider her decision.

[127]The Claimant’s employment ended on 3 October 2023 as a result of the decision to dismiss and notice issued by Mr Rice on 19 July 2023.

[128]On 6 October 2023, having explained her decision to the Claimant in an MS Teams meeting, Mrs Luke issued her decision by letter to the Claimant saying:[455-456]: As the chair of the appeal meeting held on Friday 29 September 2023, I am writing to you confirming the decision reached f the appeal meeting. […] Having considered your appeal very carefully and taken into account your representations, the decision of the previous hearing panel in regards to your dismissal from the trust has been upheld. It was recognised that the majority of the evidence presented during the appeal hearing had already been taken into account by the original panel. The panel has accepted that your health conditions amount to a 39 of 62 disability under the Equality Act 2010. The appeals panel is satisfied that appropriate Occupational Health advice has been obtained and in their report dated 16 February 2023, it was recommended that consideration be given to redeployment to a role with core office hours, that a stress risk assessment be carried out and that a wellness action recovery plan (‘WRAP’) be completed by you. It is the appeal panel’s understanding that you did not engage in the process, that attempts were made to complete a WRAP and that you refused to be placed on the redeployment register. The appeal panel heard that you did not return to work and in a subsequent report dated 6 June 2023, Occupational Health advised that you were unable to perform your role based on the current work environment and a return to work would depend upon resolution of the perceived work related stressors. On the whole, it appears that the management has made a number of reasonable adjustments to support your return to work, including obtaining Occupational Health advice, adjusting your attendance target, facilitating phased returns, reducing your hours/shift pattern, temporary redeployment and extending his sick pay. All of which have been unsuccessful in sustaining your level of attendance. Therefore, in determining whether the decision to dismiss was fair, one of the key questions the appeal panel considered was whether sufficient consideration has been given to alternative employment. The panel noted that the dismissal outcome letter states that suitable alternative employment options could not be found. Your reluctance to engagement with redeployment process created an obstacle in this respect, and therefore the decision to dismiss at that time has been reasonable. […] THE LAW Discrimination under the EqA

THE LAW

[129]The Equality Act 2010 (EqA) protects employees and applicants for employment from discrimination based on or related to a number of ‘protected characteristics’ (section 4). These include disability (section 6). Discrimination arising from disability - section 15 EqA

[130]Section 15 EqA provides: “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”. 40 of 62

[131]As to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

[2019] ICR 230

held that it is first necessary to identify the relevant treatment and it must then be considered whether it was unfavourable to the Claimant.

[132]The Court said that little was likely to be gained by differentiating unfavourable treatment from analogous concepts such as “detriment” found elsewhere in the Act, referring to a relatively low threshold of disadvantage being needed. One could answer the question by asking whether the Claimant was in as good a position as others.

[133]What caused the unfavourable treatment requires consideration of the mind(s) of alleged discriminator(s) and thus that the reason which is said to arise from disability be more than just the context for the unfavourable treatment. There need only be a loose connection between the unfavourable treatment and the alleged reason for it, and it need not be the sole or main cause of the treatment, though the reason must operate on the alleged discriminators’ conscious or unconscious thought processes to a significant extent (Charlesworth v Dronsfield Engineering

UKEAT/0197/16

[134]By analogy with Igen, “significant” in this context must mean more than trivial. Whether the reason for the treatment was “something arising in consequence of the Claimant’s disability” could describe a range of causal links and is an objective question, not requiring an examination of the alleged discriminator’s thought processes.

[135]Simler P in Pnaiser v NHS England

[2016] IRLR 170

, EAT, at [31], gave the following guidance as to the correct approach to a claim under section 15 EqA: '(a) 'A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises. 41 of 62 (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely, to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) For example, in Land Registry v Houghton

UKEAT/0149/14

[2015] All ER (D) 284

(Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) There is a difference between the two stages – the “because of” stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the “something arising in consequence” stage involving consideration of whether (as a matter of fact rather than belief) the “something” was a consequence of the disability. (h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the “something” leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to “something” that caused the unfavourable treatment.'' 42 of 62

[136]We accept the Respondent’s submission that BT v Robertson

UKEAT/0229/20/RN

at [19—22] is authority for the position that we must find which, if any, absences were something arising from the identified disability before it can determine the question of an effective cause.

[137]We accept the Claimant’s submission that there need only be actual or constructive knowledge of the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see City of York Council v Grosset

[2018] EWCA Civ 1105

;

[2018] IRLR 746

. Proportionate means defence

[138]The burden of establishing a proportionate means defence is on the Respondent. When assessing whether the treatment in question was a proportionate means of achieving a legitimate aim, the principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax

[2005] IRLR 726

per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own objective assessment of whether the former outweigh the latter. There is no 'range of reasonable response' test in this context: Hardys & Hansons plc v Lax

[2005] IRLR 726

, CA.

[139]The Claimant pointed us to and we have taken due note of MacCulloch v Imperial Chemical Industries

[2008] IRLR 846

where at paragraph 10 Elias J set out the legal principles to be applied with regard to justification. The Claimant pointed out that they have since been approved by the Court of Appeal in Lockwood v Department for Work and Pensions

[2013] EWCA Civ 1195

;

[2013] IRLR 941

): “(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways

[2005] IRLR 862

at [31]. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84)

[1984] IRLR 317

in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must ‘correspond to a real need ... are appropriate with a view to achieving the objectives pursued and are necessary to that end’ (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to ‘necessary’ means ‘reasonably necessary’: see Rainey v Greater Glasgow Health Board (HL)

[1987] IRLR 26

per Lord Keith of Kinkel at pp.30–31. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] 43 of 62 IRLR 726 per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context: Hardys & Hansons plc v Lax

[2005] IRLR 726

, CA.”

[140]Counsel for the Claimant also referred to Bank Mellat v Her Majesty’s Treasury (No. 2)

[2013] UKSC 39

;

[2014] AC 700

and Lord Sumption at paragraph 20 (page 771) who put the position on proportionality this way: “the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine(i) whether its objective is sufficiently important to justify the limitation of the fundamental right;

(ii) whether it is rationally connected to the objective;

(iii) whether a less intrusive measure could have been used; and

(iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of community…”

[141]Counsel for the Claimant also pointed us to Elias LJ in Griffiths v Secretary of State for Work and Pensions

[2015] EWCA Civ 1265

;

[2016] IRLR 216

at paragraph 26 and 29: 26 - “An employer who dismisses a disabled employee without making a reasonable adjustment which would have enabled the employee to remain in employment – say allowing him to work part time – will necessarily have infringed the duty to make adjustments, but in addition the act of dismissal will surely constitute an act of discrimination arising out of disability. The dismissal will be for a reason related to disability and if a potentially reasonable adjustment which might have allowed the employee to remain in employment has not been made, the dismissal will not be justified.” 29 - “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.”

[142]Counsel also pointed us to South Gloucestershire Council v Hundal

[2024] EAT 140

in which HHJ Tayler provided guidance on the interaction between section 15 and section 20 claims saying at paragraph 26: “I do not accept Mr Leach’s contention that it is only if there has been a finding of a failure to make reasonable adjustments than an adjustment can be taken into account when considering justification. I do not consider Stott is authority for that proposition. If a failure to make a reasonable adjustment has been asserted and the complaint has failed, the failure to make the specific adjustment is highly unlikely to be relevant to the 44 of 62 analysis of justification. However, it does not follow that a complaint of failure to make reasonable adjustments must have been made out for the possibility of an adjustment to be relevant to the assessment of justification. A claim of failure to make reasonable adjustments might be out of time, but the possibility of the adjustment being made might still be relevant to justification. An adjustment that that would only be available in the future, that would reduce the likelihood of further absences, could be relevant to justification. HHJ Auerbach did not hold that the possibility of an adjustment could only be considered if there has been a successful claim of failure to make reasonable adjustments but that “the question of alternatives to the measures adopted is to be approached by reference to the principles deriving from the general authorities.” In other words, the possibility of steps to assist the claimant improve her attendance is relevant to the question of whether the respondent has established that the termination of the claimant’s engagement was proportionate, in the sense of being appropriate and reasonably necessary, means of achieving the asserted legitimate aim; the efficient management of the service” 142.1 We were urged by the Respondent to read this in the context of HHJ Eady QC’s decision in Monmouthshire CC v Harris

UKEAT/0010/15/DA

and in particular: “40. Where the dismissal is for a reason relating to the Claimant's capability due to ill-health, in circumstances where the employee has been absent from work for some time, guidance has been laid down in BS v Dundee City Council

[2014] IRLR 131

CSIH (approving and drawing upon earlier guidance from the EAT in the cases of Spencer v Paragon Wallpapers Ltd

[1976] IRLR 373

, and East Lindsey District Council v GE Daubney

[1977] IRLR 181

), notably as follows (paragraph 27): “27. … First, … it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. … this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee's medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.” 42. “Similarly, the fact that an employee's incapacity arises from a disability for the purposes of the EqA does not 45 of 62 mean that a dismissal for a reason related to this must be unfair, see Royal Liverpool Children's NHS Trust v Dunsby

[2006] IRLR 351

EAT, where it was allowed that disability-related absences can be taken into account for these purposes provided that any required defence for justification under the EqA is made out.”44. The role of the ET in assessing the employer's justification for the purposes of section 15(1)(b) was considered by Singh J in Hensman v MoD

UKEAT/0067/14/DM

, who observed that: “43. … the role of the Employment Tribunal in assessing proportionality … is not the same as its role when considering unfair dismissal. In particular, it is not confined to asking whether the decision was within the range of views reasonable in the particular circumstances. The exercise is one to be performed objectively by the Tribunal itself. 44. … the Employment Tribunal must reach its own judgment upon a fair and detailed analysis of the working practices and business considerations involved. In particular, it must have regard to the business needs of the employer. …”

45. Singh J had drawn assistance from the earlier guidance provided by the Court of Appeal in Hardy and Hansons plc v Lax

[2005] ICR 1565

, [see above] 60. Given that this was an absence-related, capability case, the ET’s reasoning needed to demonstrate that it had considered whether the Respondent could have been expected to wait longer, as well as the question of the adequacy of any consultation with the Claimant and the obtaining of proper medical advice (BS v Dundee). I am, however, unable to see that the ET engaged with the fundamental question whether the Respondent could have been expected to wait longer. In saying that, I allow that the ET was entitled to be critical of the involvement of Mr Austin (although this criticism is not fully explained) and of the failure to engage in informed consultation and to have regard to the up-dated medical advice; these were all potentially relevant matters that the ET was entitled to take into account. But it also needed to ask whether the decision to dismiss was fair or unfair given not just the background failings of the Respondent but also the pressures it faced at that time and going forward: could it have been expected to allow more time? In all those circumstances was dismissal then within the range of reasonable responses?

[143]Counsel for the Claimant also pointed us to Leeds Teaching Hospital NHS Trust v Foster

UKEAT/0552/10

at paragraph 7: 46 of 62 “In fact, there was no need for the Tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008. It would have been sufficient for the Tribunal to find that there would have been just a prospect of that. That is the effect of what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (

UKEAT/0079/08/JOJ

) at [50]. That is not inconsistent with what the Employment Appeal Tribunal (Judge Peter Clark presiding) had previously said in Romec Ltd v Rudham (

UKEAT/0069/07/DA

) at [39]. The Employment Appeal Tribunal was saying that if there was a real prospect of an adjustment removing the disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, but the Employment Appeal Tribunal was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one. When those propositions were put to Mr Boyd, he did not disagree with them.”

[144]In Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 15

it was said, approving Mummery LJ in R (Elias) v Secretary of State for Defence

[2006] EWCA Civ 1293

, that what is required is: first, a real need on the part of the Respondent; secondly, that what it did was appropriate – that is rationally connected – to achieving its objectives; and thirdly, that it was no more than was necessary to that end.

[145]It is also appropriate to ask whether a lesser measure could have achieved the employer’s aim – Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice

[2017] UKSC 27

[146]A complaint of discrimination arising from disability will also be defeated if the Respondent can show that at the time of the unfavourable treatment, it did not know and could not reasonably be expected to know that the Claimant was a disabled person. Unfair dismissal

[147]Section 98(1) Employment Rights Act 1996 (“the ERA”) provides: (1) “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal, and (b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

[148]Section 98(2) ERA provides: (2) “A reason falls within this subsection if it –(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, …” 47 of 62

[149]Section 98(3) ERA provides: (3) “In subsection (2)(a) –(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.”

[150]Section 98(4) ERA provides: Where the employer has fulfilled the requirement of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

[151]It is for the Respondent to show the reason for the dismissal and that that reason is a potentially fair reason. The reason for dismissal is the facts and beliefs known to and held by the Respondent at the time of its dismissal of the Claimant - Abernethy v Mott Hay and Anderson

[1974] IRLR 213

. Capability is the reason relied upon in this case and this is a potentially fair reason.

[152]The employer is required to follow a fair procedure. In East Lindsey District Council v Daubney

[1977] ICR 566

, the EAT stated: “"Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill-health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done.”

[153]It is clear from the case of DB Schenker Rail (UK) Ltd v Doolan

UKEATS/0053/09/BI

that the test in British Home Stores Ltd v Burchell

[1980] ICR 303

, applies as much to capability dismissals as it does to conduct dismissals. Therefore the Employment Tribunal is required to address three questions:153.1 Whether the employer genuinely believed its stated reason;

153.2 Whether it was a reason reached after a reasonable investigation; and

153.3 Whether they had reasonable grounds on which to conclude as they did.

[154]The Respondent is not required to prove that the Claimant was incapable of performing their job, rather the Respondent needs only establish an honest belief 48 of 62 on reasonable grounds that the Claimant was incapable - Taylor v Alidair Ltd

[1978] IRLR 82

[155]The question of whether the employee is capable of doing the work that he is employed to do must be determined in accordance with the employee’s contractual obligations and role at the time of dismissal - Plessey Military Communications Ltd v Brough EAT 518/84.

[156]It is necessary for the employer to have consulted with the employee prior to dismissal and also some attempt to establish the genuine medical position - East Lindsey District Council v Daubney

[1977] ICR 566

[157]The range of reasonable responses test as set out in Iceland Frozen Foods Limited v Jones

[1982] IRLR 439

, Post Office v Foley

[2000] IRLR 827

and J Sainsbury plc v Hitt

[2003] ICR 111

requires us to consider whether the decision of the Respondent to dismiss the Claimant fell within the band of reasonable responses of a reasonable employer acting reasonably. This applies equally to the procedure that was followed as well as the decision to dismiss.

[158]Guidance on these considerations can be found in OCS v Taylor

[2006] ICR 1602

, where the Court of Appeal confirmed that Employment Tribunals should: “…consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.” And “consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the ET's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”

[159]Tribunals must avoid the substitution mindset and not decide the matter on what the Tribunal would have done in these circumstances. Rather it must apply the standard of what a reasonable employer would have done. There may be a range of responses that a reasonable employer could have reached. Ultimately, the Tribunal must consider whether dismissal fell within the range of reasonable responses open to a reasonable employer.

[160]Whereas there is no requirement for an employer to create a new role where none exists - Merseyside and North Wales Electricity Board v Taylor

[1975] ICR 185

, it is appropriate to consider whether the employee could be offered an alternative position more suitable to the employee’s state of health - Spencer v Paragon Wallpapers Ltd

[1977] ICR 301

. 49 of 62

[161]In McAdie v Royal Bank of Scotland

[2007] EWCA Civ 806

, the Court of Appeal stated that an employer could fairly dismiss an employee for ill-health capability despite the fact that the employee's stress-related illness was attributed to the conduct of the employer. The key issue is whether the employer acted reasonably in all the circumstances, which include the fact that the employer was responsible for the ill- health. ANALYSIS AND CONCLUSIONS

[162]The parties will note that we have structured our decision around the factual issues as detailed in the first part of the list of issues presented to us. We have noted those claims which were withdrawn and have also noted where an issue number was not used (in those cases we have said that the issue has been deliberately omitted).

[163]Whilst we have we have structured our analysis and conclusions by issue, we were also careful to look at the evidence ‘in the round’ to determine whether it suggested that the Claimant had been subjected to the unlawful treatment of which he complains. Having done so we did not find cause to change our decisions on any issue or issues. Attendance calculations

[164]At the hearing the Respondent put forward the following attendance calculations in answer to the Claimant’s assertion that between May 2022 and February 2023 his attendance did approve to around the more lenient 92% attendance rate that at that time applied to him:164.1 A 96% attendance records in the Claimant’s role equated to 10.5 days of sickness in a rolling 12 month period on the following basis:164.1.1 37.5hrs per week x 52 = 1877 hours per annum

164.1.2 4% (100% less 96%) of 1877 is 78.21 hours.

164.1.3 78.21 hours is 2.0856 weeks or about 10.5 days.

164.2 A 92% attendance target to 8% of 1877 which is 150.16 hours which is 21 days. Over a 9 month period (75% of a year) this equates to three weeks or 15 days absence.

[165]We have concerns about those calculations because they are based a 52 week period not taking account of holiday periods. That may be how the calculation is performed at the Respondent but in any event we did not consider it helpful to our analysis of what had happened. Other than the period between May 2022 and February 2023 it was not contested that the Claimant had an attendance record below what was expected. Whilst the Claimant’s attendance did improve after Mr Rice gave him the opportunity to improve in May 2022, by the time it came to the Respondent initiating the formal process again in May 2023 his attendance was well below the adjusted attendance target which he had been set and this was not disputed. 50 of 62 Discrimination arising from disability (Section 15 EqA)

[166]It is logical, because of the potential impact of our findings on the unfair dismissal complaint, that we first set out our decision on the Section 15 EqA complaint.

[167]Unfavourable treatment: It is of course clear and not disputed that the Claimant’s dismissal amounted to unfavourable treatment.

[168]The cause of the unfavourable treatment: It is also clear and not disputed that the reason for the unfavourable treatment was the Claimant’s poor attendance record – i.e. his sickness absence.

[169]Was the cause something arising in consequence of the Claimant’s bipolar disorder? The Respondent disputed that any sickness absence after May 2022 arose from the Claimant’s bipolar disorder. The Respondent in particular submitted [paras 45-49]: As set out in C’s [meaning R’s] opening note, there were a large number of absences after May 2022 that were clearly unrelated to C’s disability: 13.06.22 – absence due to other causes (1 day) [463] 03.08.22 to 05.08.22 – absence due to cold, cough flu (3 days) [463]; 09.01.23 - 13.01.23 – absence due to infectious diseases (5 days) [463]. In addition C has provided no evidence the other six days during that period (ie from May 2022 to February 2023) were due to his bi polar disorder – see chart at [463]. Even if they were, there is no evidence that six days alone would have been sufficient to trigger the formal absence process. With regard to the period from 06.02.23 onwards: C’s fit notes do not record bi polar as being a reason for C’s absence – see [304], [320], [323], [362]; the OH reports do not evidence that the absence was due to C’s bipolar: OH report of 16.02.22 – reference to absence due to laryngitis and work related stress [298-299]; and Oh report of 06.06.23 – states that C “feels stable with regard to his underlying health condition” – reference instead to “perceived work related stress” with the report emphasising that “stress is not an illness and workplace concerns are not a clinical barrier preventing an individual from carrying out their substantive duties” [347]; 51 of 62 C has not provided medical evidence (eg GP records / medical records, an opinion from an expert) linking his absences after May 2022 with his bi polar condition; R’s witnesses were not involved in C’s clinical care and so cannot give evidence as to his bi polar condition. Moreover, Paul Rice – dismissing officer – was not asked in XX about his view of C’s absences and whether they were related to C’s disability. As such, C has not proved that the “something” arose from his disability. Therefore his claim must fail. Moreover, even if the ET considers that some of the absences were arising from C’s disability, the ET will need to determine which ones and whether they were sufficient to amount to an “effective cause” of C’s dismissal. (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely, to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

[170]We were not persuaded by this argument. We accept the Claimant’s submission that Ms Cox, an experienced mental health nurse, was asked in cross examination about her understanding of bipolar disorder. She described it as a severe and enduring mental illness with fluctuations in mood (highs and lows of varying degrees). The highs (known as manias or manic episodes) include symptoms such as grandiose ideas, increased energy, lack of concentration and preoccupation with certain topics and spending a lot of money. Lows include prolonged episodes of low mood, suicidal ideations, lack of sleeping, difficulty concentrating, feeling tearful and being low. These are depressions or depressive episodes. Mr Rice (another experienced mental health nurse) agreed with the description given by Ms Cox. Both made clear that in their view that bipolar was slow cycling: manias and depressions would last for a significant period. We accept that manias and depressions are not related symptoms but at the heart of the definition of what it is to have bipolar.

[171]The Claimant’s fit notes make clear that his GP signed him off with depression between 13-26 February 2023 [304] and 15 April – 5 June 2023 [323]. We accept the Claimant’s submission that Ms Cox explained in her oral evidence that the Claimant’s GP would have access to letters and correspondence from the Claimant’s care team (which of course were also part of the Respondent) when 52 of 62 writing the fit notes. We also accept that Ms Cox’s evidence was that anyone can experience lows and not be depressed and indeed someone without bipolar can (of course) experience depression. However, when she was asked whether the Claimant was depressed during his period of absence from 15 April – 5 June 2023 and if she thought that period of depression related to the Claimant’s bipolar, she stated this would very likely be a depression that related to the Claimant’s bipolar.

[172]We accept the Claimant’s submission that the references to the Claimant’s medication during the period after 6 February 2023 is a reference to his bipolar medication.

[173]We are not surprised that the fit notes for the Claimant did not state that bipolar was the reason for the Claimant’s absence. However, the fit note of 21 February 2023 recorded depression as the reason [304], the fit note of 2 May 2023 recorded depression and medication dose changes as the reason and we find that they were part of the Claimant’s bipolar disorder and not simply disassociated periods of depression. The OH report of 16 February 23 did reference laryngitis and work related stress [298-299] but also recorded that the Claimant had “severe depression with moderate anxiety which appears to be reactive to perceived workplace stress”. The fact that a depressive period might have been tiggered by workplace stress does not mean it is not part of the Claimant’s bipolar disorder and we find that it was.

[174]The Respondent, in holding the meeting on 23 May 2023 that was chaired by Ms McAuley and which then led to the decision to dismiss the Claimant, focused on the Claimant’s attendance over the previous 12 months (amounting to 114 days). In respect of that absence, we conclude that the absence between 5-9 October 2022, on 11 November 2022 and from 6 February 2023 up to circa 6 June 2023 (when the fit notes change and from which point the OH guidance is unclear) arose in consequence of the Claimant’s bipolar and that he has discharged his burden of proof in this regard. The Claimant’s dismissal was therefore unfavourable treatment because of something arising in consequence of his disability. Was dismissal a proportionate means of achieving a legitimate aim?

[175]The Claimant did not dispute that the Respondent, in dismissing the Claimant, pursued legitimate aims. The key point of dispute was whether the Claimant’s dismissal was a proportionate means of achieving the stated aims. The burden lies with the Respondent in this regard.

[176]The Respondent submitted that on the Claimant’s own evidence in cross examination, by the time of the attendance meeting on 24 May 2023 and the dismissal hearing on 11 July 2023, there was in reality no option other than dismissal. In support of this it in particular pointed to:176.1 The fact that at the meeting chaired by Ms McCaulay on 24 May 2023 said that even if he was given 8am to 4pm hours in SIS he could not go back to there and that he had refused to go on the redeployment register. 53 of 62

176.2 Options for the Claimant working outside Swindon would not be ideal and the nearest area of (North Wilts) was not suitable because it was where he was also a service user [332].

176.3 The fact that the Claimant did not dispute in cross examination that at the point in time of those meetings there were no other roles that could be considered for him.

176.4 The Claimant in cross examination accepted that that the message from his letter to the Respondent of 11 July 2023 [428 to 429] was to the effect that the relationship was over and there was no way forward.

176.5 The Claimant did not dispute in cross examination that he did not suggest in the final hearing that his attendance was likely to improve. This was a position supported by the Claimant’s comments at the final hearing chaired by Mr Rice at which the Claimant said “I don’t see a way forward, we should come to a settlement and I go my way, and you go yours” [424]. It was further supported by that fact that OH was not supportive of there being a realistic prospect of the Claimant returning to work and/or maintaining an adequate level of attendance [347-348].

176.6 The Claimant agreed in cross examination that he could no longer tolerate the stress of the SIS role.

[177]We accept these submissions.

[178]At the time of his dismissal the Claimant did not suggest that there were other roles that he could undertake and was asking for a severance package.

[179]The Claimant accepted that were no roles in the EI team at the time. We accept that the Windswept team was not an option as it also required intensive work / shift work, there was no position at Band 4 and there was no scope to offer the Claimant a role in the team on unchanging hours Monday to Friday. The Claimant also did not dispute that there were no other B4 roles at his place of work and it is not the Claimant’s case that another role, that was not needed, should have been created for him in EI.

[180]We remind ourselves that the Claimant in May 2021 had had the opportunity to interview for a role in EI and that it was a failure on his part that he did not interview for the role.

[181]It is also relevant that the Claimant:181.1 repeatedly refused to go on the redeployment register.

181.2 at the time (6 February 2023) when he commenced the long term sick leave (from which he never returned)

(i) was asking for permanent 8am4pm Monday to Friday hours in the SIS team;

(ii) was not asking to be redeployed because he could not cope with the work;

(iii) was not asking to be redeployed because of people in the team related to the Historic Incident. 54 of 62

181.3 Repeatedly and unreasonably refused to cooperate with the Respondent in the preparation of a WRAP plan.

[182]When it came to the formal attendance hearings that followed the period of long term sickness absence that started on 6 February 2023 the Claimant’s position had changed. He said he could not longer cope with the pressure of his role in SIS and at the same time said he could not work with people he had previously said he could work with.

[183]Ms Cox’s decision to reject the Claimant’s flexible working request was justified for the reasons she explained and because of the reduced pool of B4’s and pressure on the availability of Monday to Friday early shifts. Her refusal of the request did not constitute a failure to make a reasonable adjustment for the Claimant. That decision needs to be viewed in light of what was known at the time but we consider that in any event, even had the Claimant’s request been granted, it is unlikely that he would have maintained acceptable attendance. He said himself that he could not cope with the pressure in his SIS role whatever his hours of work.

[184]The Claimant only agreed to go on the redeployment register after he had been dismissed. It is not for us to opine on whether he was well advised to refuse to go on the register. However, the decision that the Respondent came to make in July 2023 to dismiss the Claimant needs to be viewed in this context.

[185]The Respondent has obligations to its disabled employees to think about what other roles they might be able to undertake if they cannot carry out their substantive role because of a disability whether or not they agree to go on a redeployment register. However, an employee’s refusal to do so is a relevant factor. The Respondent also has an obligation to consider offering a disabled employee a suitable alternative role without a competitive interview if the circumstances warrant it.

[186]The Claimant’s attendance had improved at times, for example for a few months after the April 2022 formal attendance at work hearing. However, it would be artificial to look at reductions in the Claimant’s absence for mental health reasons and ignore his absence for other unrelated reasons. In any event, there was no long term sustained improvement and, of course, when it came to May to July 2023, the Claimant was again on long term sickness absence. Given the Claimant’s poor attendance over a prolonged period of time, including with fixed hours in his substantive role and also on fixed hours in the less pressured EI role, the Respondent was entitled to conclude that there was no evidence that the Claimant’s attendance would improve to the required standards, certainly in his substantive role but also in any other role. It was reasonable for the Respondent to conclude that it could not wait any longer. Given the Claimant’s skills there was only ever likely to be a limited number of roles suited to the Claimant, none were available in July 2023 and even had the Claimant agreed to be put on the redeployment register or had the Respondent put him on it anyway, it would not have had a prospect of achieving a suitable alternative role for him in which he could have sustained an acceptable level of attendance. 55 of 62

[187]When it came to the appeal hearing the Claimant did question if he could be employed in a number of roles. Our findings in respect of each of those roles is as follows:187.1 Band 2 Driver – we accept that this a bank role that could not be offered as a vacancy to the Claimant and that, in any event, there was no evidence that the Claimant had the skills or would accept the pay cut (he had previously been unwilling to consider the Respondent’s suggestion that he consider part time working as a way to help him cope with the demands of work).

187.2 We accept again that there was no evidence that the Clamant had the skills for or would accept the pay cut associated with the Band 3 roles that he raised (Administration / activity coordinator). The activity co-ordinator roles was, in any event, in Bristol and the Claimant had indicated his difficulties with working outside Swindon.

187.3 The Claimant did not have the qualifications (a degree) needed to be a trainee nurse.

187.4 The Claimant did not demonstrate that he had the experience or qualifications needed in the NHS to be a B4 employment coordinator with Wiltshire Talking Therapies.

[188]The Claimant clearly knew about ill health retirement because he had applied for it previously and withdrawn his application. By the time of his dismissal he made no suggestion that was what he wanted and there was no evidence that he was permanently incapable due to ill health or reason for the Respondent to take an application for ill health retirement forward (or suggest it to the Claimant as an option).

[189]The Respondent had demonstrated that it was prepared to make adjustments where they were feasible and had not been quick to apply triggers to the formal attendance management process. For example, it had:189.1 Extended the Claimant’s full sick pay and prompted and granted his application for a hardship payment;

189.2 Accommodated last minute requests for annual leave;

189.3 Not taken disciplinary action when the Claimant failed to attend work and was unauthorised absent (a short notice request for annual leave having been declined);

189.4 Adjusted its normal attendance targets (doubling the allowed sickness absence in the case of the Claimant);

189.5 Paused the formal attendance management process in April 2022 to give the Claimant further opportunity to prove his ability to attend with in the relaxed targets; 56 of 62

189.6 Taken the Claimant off shift work for a substantial period of time (from August 2021 to the point of his dismissal).

[190]None of this is to minimise the seriousness of the Claimant’s mental ill-health or the extremely difficult circumstances he faced in his personal life (for example with his wife’s illness and the breakdown in their relationship). However, by July 2023, the Respondent’s decision to dismiss the Claimant was justified notwithstanding the serious consequences for the Claimant (including that it amounted to discrimination arising from the Claimant’s disability).

[191]We find that the Respondent did not rely solely on financial justifications for the dismissal of the Claimant and conclude that it has, based on the evidence we heard and were presented with, discharged its burden of proof in respect of the legitimate aims it pleaded being:191.1 ensuring satisfactory attendance in accordance with the Respondent’s managing Attendance, Sickness Absence and Flexible Working policies (“Aim 1”).

191.2 effectively managing the Respondent’s resources given that these are funded by the public purse (“Aim 2”);

191.3 ensuring that the Respondent can maintain and deliver effective and efficient patient services to the public (“Aim 3”);

191.4 ensuring a consistent management approach to staff sickness absence and attendance at work (“Aim 4”); and

191.5 maintaining adequate staff attendance levels to ensure delivery of patient safety (“Aim 5”).

[192]We find that the Claimant’s dismissal was necessary to achieve Aims 1, 2, 3 and 4 in particular and that there was no less discriminatory (or non-discriminatory) course of action that the Respondent could have been expected to take.

[193]We have taken into account, in reaching our decision, the Claimant’s submissions including but not limited to the fact that the Claimant was an employee of 20 years’ experience and his dismissal entailed the loss of his skills and experience. Unfair Dismissal

[194]It is of course accepted that the Claimant’s dismissal was for the potentially fair reason of capability. We find that his dismissal was fair. Our findings in respect of the complaint of discrimination arising from disability are clearly relevant and we do not repeat them here save to say:194.1 We do not consider that the Respondent could reasonably have been expected to wait longer before dismissing the Claimant or to have given him yet another chance to improve his attendance taking into account the pressures on the SIS team and the impact of the Claimant’s absence on that team. 57 of 62

194.2 In any event the Claimant made clear that he could not return to his SIS role. The Respondent genuinely believed the Claimant was no longer capable of performing his duties. Taking into account the Claimant’s skills, the size of the Respondent and the geographical and other constraints in employing the Claimant, there were no other roles into which he could reasonably have been placed with any prospect of him improving his attendance to an acceptable level.

194.3 The Claimant was a very long serving and experienced employee but the Respondent had done all that could reasonably be expected to help him address his poor attendance over a number of years before reaching the decision that it needed to terminate his employment.

194.4 We do not consider that the Claimant’s dismissal was either procedurally or substantively unfair. In particular we find that:194.4.1 Mr Rice, not least because of his own operational knowledge, could not have been expected to have done more to challenge Ms Cox’s evidence that the Claimant’s flexible working request could not reasonably be accommodated (an in any event by the time of his dismissal the Claimant was clear that he could not return to his SIS role).

194.4.2 The Respondent followed its policy and adequately consulted the Claimant and based its decision on up to date medical evidence. There were two attendance meetings and two attendance hearings followed by an appeal against dismissal. The Claimant was able to explain his position at each of those hearings.

194.4.3 The Claimant was given a number of opportunities to improve his attendance and knew that he might be dismissed if he failed to do so. He accepted that his attendance record was nonetheless, in his own words, appalling.

[195]We find that dismissal was within the range of reasonable responses.