Ms W Mularczyk v Pyramid Posters Ltd: 6002602/2023
EMPLOYMENT TRIBUNALS
Case No 6002602/2023
Between
Ms W MularczykClaimantPyramid Posters LtdRespondent
Before
Employment Judge BroughtonIn person for claimantMr Stenson (instructed by Counsel) for respondentDate 5 January 2025
JUDGMENT
[1]The Claimant submitted her claim on 7 December 2023. The ACAS Conciliation period took place from 6 September 2023 to 26 September 2023.[2]The Claimant was employed by the Respondent as a Warehouse Operative from 27 April 2015 to 19 August 2023 when her employment was terminated on the grounds of incapacity due to ill health.[3]There was a Preliminary Hearing before Employment Judge Adkinson on 26 April 2024 and following that hearing a number of the complaints were withdrawn leaving the complaints which are identified in the case management orders and set out at page 7 onwards. In summary those complaints are: 3.1. A complaint of ordinary unfair dismissal. 3.2. A complaint under section 15 which relates only to the act of dismissal on 19 August 2023. 3.3. A claim of failure to make reasonable adjustments under sections 20 and 21: which is a complaint that the Respondent had a PCP in or around January 2016, that the Respondent required the Claimant carry out normal duties in place of light duties.[4]In terms of the disability issue, the Respondent conceded that the Claimant was disabled due to a back condition.[5]However,the Claimant also complains that she was disabled because of depression and because of anxiety and Employment Judge Adkinson made Orders for the provision of an impact statement and medical records.[6]Employment Judge Adkinson then set the case down for a further Preliminary Hearing of 1 day on 8 August to determine the matters which were set out at paragraph 7, page 7 of his Orders namely: 1. Was the Claimant disabled at the relevant time because of anxiety and depression? 2. Any application to amend. 3. Finalise the issues. 4. Give directions for a Final Hearing.[7]Judge Adkinson noted in his record, that there may be other claims of a failure to make reasonable adjustment, however, it is not clear what they are and the information may be relied on does not appear to be in the claim form. If the Claimant wanted to pursue other claims he directed that she would have to make an application to amend the claim and he set out a 5 week deadline and details of the information needed.[8]Employment Judge Adkinson also noted that there was a long gap between 2016 (which relates to the alleged PCP i.e. the requirement placed on the Claimant to do normal duties in place of light duties) and the next act of discrimination (which is the act of dismissal), the effective date of termination being 19 August 2023. Employment Judge Adkinson therefore noted that this raises an issue about whether these are continuing acts and whether all the claims were presented in time. It was left for the Respondent to consider if it wanted the Tribunal to deal with these issues at the next hearing and if so, to apply accordingly.[9]Employment Judge Adkinson also noted that he had given some directions in terms of disability because the mental impairment was an issue even though the back pain had been conceded as a disability.[10]The Respondent on 5 July 2024 conceded disability in relation to depression based on the medical evidence and impact statement provided. However, they were not prepared to concede that the Claimant had an impairment of anxiety which amounted to a disability, based on the information provided.[11]The Respondent also set out an application prior to the hearing on 8 August 2024, for the Claimant’s claim of failure to make reasonable adjustments (January 2016) to be struck out under Rule 37(1)(a) of the Tribunal Rules on the grounds that it has no reasonable prospect of success. This was on the basis of time limits.[12]The Claimant produced an impact statement to deal with anxiety and disclosed medical evidence.[13]There was a further Preliminary Hearing on 8 August 2024 before Employment Judge Brown.[14]The record of Employment Judge Brown notes that the Respondent applied to strike out the Claimant’s claim for a failure to make reasonable adjustments in relation to a disability of her back condition and that she heard arguments from Counsel on the issue but because the Claimant had only received the application the evening before the hearing that day and, they had not been given a reasonable opportunity to make representations.[15]In relation to the disability point, she also noted that the issue of whether the condition of anxiety amounted to a disability remained a live issue however, a direction that the parties file witness statements for that hearing had not been complied with and therefore it was Ordered that the issue of whether the claim of anxiety amounted to a disability would be dealt with at a further hearing.[16]The Claimant also made an application to amend her claim form to include claims of a failure to make adjustments based on anxiety and depression, in addition to the claim defined at the last hearing in relation to her back problem.[17]Employment Judge Brown dealt with the application to amend the claim and rejected it. The reasons are set out in her Order.[18]Employment Judge Brown made an Order that the strike out application would be dealt with at the next hearing and made Orders for the Respondent to amend their strike out application if they wished and the Claimant to respond to it by 28 October 2024.[19]An Order was made that the hearing today would determine two issues: 1. Whether or not the Claimant was disabled at the relevant time because of anxiety, and 2. To determine the Respondent’s application to strike out the reasonable adjustment claim on the grounds that it was presented out of time. Today’s Hearing[20]The parties produced a bundle of documents which ran to 231 pages.[21]All refences in square brackets to page numbers in this judgment, refer out to that joint bundle.[22]The Claimant produced a further document today, a duplicate copy of a letter from a Dr Dayah. There was already a copy of this letter in the bundle [page 216] however, the Claimant had produced a copy with a signature. The Respondent did not object to it being admitted into evidence [page 232] and leave was granted to admit it.[23]Additionally, the Claimant produced a skeleton argument and a response to the strike out order. Initial Issues[24]I clarified with the parties at the outset, the two issues to be determined at this hearing.[25]The Claimant’s representative, her son, had the day before the hearing, filed a written application for a Deposit Order to made under Rule 39 against the Respondent, on the ground that the Respondent’s position that there was a lack of medical evidence to prove that the Claimant’s anxiety was a disabling condition under section 6 EqA, had little or no reasonable prospect of success. Given that the case was listed to determine the issue of whether anxiety was a disability at the relevant time, I did not consider that it was proportionate to deal with that application, given that the very issue of whether that condition met the definition of a disability was before me for determination and the burden of proof rests on the Claimant to establish disability. The application had only been filed the previous day and the hearing had not in any event, been listed to determine that application.[26]It was not clear to me however, what the relevance of the anxiety impairment was in terms of how the case is pleaded, given the concession that depression was a disability. The Respondent’s Counsel did not consider that there was any particular relevance but they were not prepared to concede this particular impairment because their position is that there is no supporting medical evidence. The only evidence produced up to the hearing, was an unsigned, undated letter from a Dr Dayah, which makes no reference to the Claimant at all and the authorship of which the Respondent considered to be ‘dubious’.[27]I then enquired of the Claimant’s representative why it was necessary for the Tribunal to determine anxiety when the Respondent conceded depression and further, it appears that the reason why the Claimant was dismissed was because of absence related to her back problem and the Respondent has conceded that she was disabled because of her back condition. It is not clear what relevant depression or anxiety has to the section 15 or section 20/21 claim. The reasonable adjustments claim concerns the Claimant being given normal, rather than light duties, which appears only relevant to the back condition. Mr Staszewski informed me that some of the relevant periods of sickness absence resulting in dismissal, were linked to anxiety and that although the initial reason why the Claimant went absent on sick leave in 2022 was because there were no light duties available, her sickness absence was impacted by her mental health, both depression and anxiety. She was in fear of losing her employment and thus her mental health contributed to her periods of absence.[28]I attempted to obtain clarity from the Claimant whether the Claimant’s position is that she could have returned from sick leave (which was certified as due to back problems) but for the effects of the anxiety, however, Mr Staszewski was not clear on that issue, repeating only that the back pain was not the only issue stopping the Claimant from returning to work.[29]Mr Stenson confirmed that it was the Respondent’s position the only relevant condition is the physical one because irrespective of any other condition the Claimant may have had in terms of mental health, her physical condition would have prevented her from returning to work. The Respondent therefore do not consider that anxiety is of any relevance to the claims.[30]In the initial discussion at the outset of this hearing, Mr Staszewski also mentioned that the Claimant had prepared the claim form without legal representation with reference to Judge Adkinson having recorded in his Orders that the reasonable adjustment related only to back pain. There seemed to be an implication that the description of the claim presented under section 20 and 21 as set out in Judge Adkinson’s order, namely that the substantial disadvantage related to back pain only, was not how the Claimant wished to pursue that complaint. That, however, was clearly recorded in Judge Adkinson’s order and sent out to the parties back in April 2024 and there had been no objection from the Claimant at that time. Further, there had then been an application by the Claimant to amend the claim. Mr Stenson informed me that the Claimant’s application which came before Employment Judge Brown, included an application to make amendments in relation to the section 20 and 21 claim, to extend it to her mental impairments. The amendments which had been made were not set out in the Order and I did not have a copy before me of the application the Claimant had made however, the Claimant did not dispute this.[31]The Order of Employment Judge Brown confirming rejection of the amendment applications was sent out to the parties on 14 August 2024. There had been no application for Employment Judge Brown to reconsider her decision to refuse those applications and Mr Staszewski informed me that he had been aware of the Claimant’s right to apply for reconsideration if she wished to challenge the decision.[32]We were somewhat time constrained today, the Claimant required full support from the Interpreter who was attending via CVP and there was a time lag on the CVP which created some challenges. The Claimant gave oral evidence including about her financial means and I then decided to hear submissions on the strike out and deposit order applications. Hearing the evidence and submissions took until approximately 5pm. I therefore reserved my decision on both.[33]At the close of today’s proceedings, Mr Staszewski informed me that the Claimant wanted to make a further application to amend her claim. He did not go into the detail and I explained that he would need to submit the application in writing and indicate whether he was content for it to be dealt with on the papers.[34]I set out separately case management orders following this hearing, which included guidance on any further applications to amend the claim. Disability[35]I now turn the issue of whether the Claimant was disabled because of anxiety at the relevant time.[36]The relevant period the parties confirmed, is January 2016 to 19 August 2023.[37]The Respondent [page 54] has conceded that the Claimant was disabled because of depression at the relevant time. Evidence[38]The parties did not request any adjustments to the hearing.[39]I heard evidence only from the Claimant who affirmed that her evidence was the truth. The Claimant produced a witness statement and disability impact statement [page 62 – 69 & 70 -75].[40]I heard submissions from both parties. Findings of fact[41]I made the following findings of fact on a balance of probabilities. The findings set out are not intended to be a complete record of all the evidence I heard during the hearing. I took all the evidence into account however, the findings set out are those considered material to the determination of the issues.[42]The Claimant gave evidence that she suffered from depression and anxiety which began soon after a workplace incident on 9 July 2015 and has continued up to the date of this hearing. The Claimant’s case is that her lower back was damaged by moving a heavy box at work.[43]The Claimant alleges that she was prescribed antidepressant medication on 14 January 2016 which helped with the anxiety.[44]The Claimant has produced a letter from a Dr Dayah, who she refers to in her evidence in chief as her GP [para 4 w/s].[45]The Claimant asserts that the depression and anxiety are related conditions and that a symptom of depression can be anxiousness leading to an anxiety disorder and anxiety can also lead to low mood, in turn causing depression. Effects of the anxiety[46]The Claimant alleges in her impact statement, that she suffered a number of symptoms which are specific to the alleged anxiety impairment/condition: Issues with concentration Tense muscles Panic attacks Headaches Headaches[47]The Claimant asserts that she was diagnosed with migraines in December 2014, before the accident at work, but after the accident and anxiety led to increased intensity and frequency of migraines. She complains that the headaches caused difficulties with her concentration, including making it more difficult to plan and shop and that she would for example select the wrong items. The Claimant states that Propranolol assisted with the migraines and that she used gels and thermic plasters and wet towels when the headaches were severe to ease the effect, but could not apply these aids while at work.[48]The Claimant also complains that headaches affected her ability to cook, because she missed out ingredients or forgot to turn on the gas on the cooker. It is also her evidence that headaches impacted on tasks such as using the washing machine because she would put in the wrong clothes or select the wrong program. The Claimant also gives evidence that when it came to self-care she would accidently use cold rather than hot water or accidentally use hair conditioner instead of body wash.[49]The Claimant complains that she made mistakes doing paperwork at home and therefore had to double check the paperwork and that it took more time to complete such tasks and that the headaches made answering questions harder because she was distracted by the pain. She also complains that she would lose concentration when reading a document, misplace objects such as kitchen items or forget to return items to the fridge. She also complains that because of the headaches, at work she would label something twice and lose track of how many posters she had put in a box and trip up when moving around the warehouse.[50]The Claimant also complains of the impact in her ability to manage her time, and of forgetting what to say when talking because of the impact on her concentration.[51]The Claimant complains of experiencing dizziness and a loss of balance and losing orientation which made it difficult to move around. Medication[52]The Claimant asserts that she started to take medication for depression on 14 January 2016 [page 62] soon after returning to work after the accident and her low mood was aggravated by the grievance on 10 January 2016.[53]The first medication prescribed was Citalopram, an antidepressant which helped her mood [page 2022c] .[54]She was prescribed Amitriptyline on 7 March 2017, another antidepressant [page 2021].[55]The Claimant asserts that she continued to have Citalopram until 5 December 2019 when she started to then take Sertraline, another antidepressant [page 2022a][56]The Claimant claims that she was prescribed Diazepam when she had particular issues with anxiety which affected her sleep [ page 2022b].[57]From September 2021, she started taking Propranolol to help with anxiety, 40mg 3 times per day [page 2021b].[58]On 20 September 2023 the Claimant was prescribed Mirtazapine, an antidepressant used to treat depression and anxiety [page 2022d] in place of Sertraline, the prescription for which was repeated until 26 March 2024, when she went back onto Sertraline[59]The Claimant asserts that she continues to take medication namely Propranolol, Sertraline and Tramadol.[60]The Claimant also asserts that she began smoking again between 2016 and 2020 due to the effects of anxiety and also found some release from listening to music and having small breaks during the day from activities.[61]The Claimant asserts that without antidepressant medication to stabilise her mood, she would experience severe low mood and would be more vulnerable to the other effects, including difficulty sleeping. Tense Muscles[62]The Claimant complains of muscle tension which made it difficult to rest and caused fatigue and lead to pain elsewhere in her body. Effects of anxiety and depression[63]The Claimant alleges that she suffered effects which were the result of both anxiety and depression and which include; Uncontrollable daily worries Irritability Lacking energy Tiring easily Difficulties sleeping Aches and pains[64]The Claimant also complains of experiencing stomach pain, which resulted in irritation, decreased concentration and made standing straight difficult and that standing or sitting in a hunched position led to back pain.[65]The Claimant also complains of at times increased stress and anxiety causing a rapid heartbeat and shortness of breath which usually happened when she was worrying about her job or had to do into the office, or speak with her managers etc and resulted in difficulty with conversations and brain fog.[66]The Claimant also complains of problems sleeping and the impact on reduced concentration and lack of motivation and needing medication to help her sleep and that the lack of sleep and fatigue impacted on her hormones and caused diarrhoea, extended or reduced menstruation, constipation, migraine, hair loss, skin changes, rashes, and pains around her body.[67]The Claimant complains that the affects of depression and anxiety impacted on her self-esteem, caused her to neglect her appearance, led to dramatic changes in weight and that she socialised less than before. It impacted she claims [page 63] on her relationships at home, becoming frustrated and leading to arguments, a lack of interest in chores and had an impact on her sexual relationship. Her reduced self-esteem she asserts, also impacted on her ability to make decisions.[68]The Claimant complains that although she still met the required standards of performance at work, low motivation made it difficult to carry out the tasks. GP records. Medication List [page 87-98][69]The relevant entries record in the Medication list the following; o 14 Jan 2016: Citalopram 20 mg Acute Medication 28 tablet [page 98] o The same 20 mg prescription is repeated throughout 2016, 2017 and 2018. o There is the additional entry for a prescription for Amitriptyline 10mg on 7 March 2017 [page 96]. o There is a change recorded in the prescription from Citalopram to Sertraline 50mg on 18 February 2019 [page 94] with a repeat prescription throughout the rest of 2019 until September 2021. There is also a prescription for Diazepam recorded in April 2019 and May 2019. o There is a prescription for Propranolol from September 2021 [page 91] alongside Sertraline and this continues throughout 202 and 2022, and 2023, with the addition of Mirtazapine from 20 September 2023 [page 88]. The entry refers to “28 tablet – once at night”. There is no reference to a prescription for this medication prior to 20 September 2023. The prescription for that continues alone with Propranolol (only i.e. not Sertraline) until 26 March 2024 when the Claimant is prescribed Sertraline again [page 87] and this continues up to May 2024 . GP Records Consultation[70]The GP records have been quite heavily redacted by the Claimant. The unredacted entries include an entry in November 2015 following a road traffic accident and previous work related injury at work [page 86]. An entry in December 2015 reports a whiplash injury.[71]An entry on 15 December 2014 [page 219] records: “History ? raised bp and headaches – across the forehead every 3 days , vomit, warehouse worker, hx of thyroid problems…” Tribunal stress[72]There is an entry on 14 January 2016 for low back pain; “feels depressed now, would like to try AD”. The diagnosis is; “low back pain.”[73]On 22 February 2016 the entry reports ongoing lower back pain and “mood stable on citalopram” and diagnosis of chronic back pain.[74]On 15 July 2016 it refers to a review of headaches and using a BP machine which showed a raised level and ‘possible hypertension’ and hospital notes from 7 December 2016 refer to worsening headaches [ page 227] but does not identify the cause.[75]Hospital test results from 16 March 2018 [page 137] refers to lethargy, changes with menstruation, TPO levels raised. 76. 16 December 2019 [page 218]; “…longstanding Hx of migraines, current migraine past 48 hrs or so with some vomiting, sumatriptan normally helps…feels cold environment at work is the trigger…”[77]On 22 June 2021 the records report the Claimant is to stay on the current medication dose and that the back pain is ongoing.[78]On 22 September 2021 the notes record ongoing migraines and when they appear the Claimant has “pulsating pain on the right side of head and behind eye. Then feels very tired and nauseous. No early morning headaches , initially 1 to 2 a month ,now increasing in frequency 3 – 4 per week.” The diagnoses is Migraines and refers to trial of propranolol.[79]The entry on 26 July 2023: this records that the Claimant; “ Feels more down, issues with appetite and sleep. No suicidal ideation/DSH ideation”. There is no further diagnosis but agreement to increase sertraline and tramadol. After August 2023[80]The entry on 6 September 2023 is after the date of dismissal and thus after the relevant period. The entry confirms that the Claimant’s sleep is affected and she would like a dose of Zopiclone. There is also a record of a discussion about a change in anti-depressant medication [page 80].[81]There is then reference on 20 September 2023 to mirtazapine and “erratic sleep”.[82]Entries on 20 March 2024 [page 78 – 79] refers to her primary complaint being a chronic bad back; “Has impacted on mental health but feels she is managing that at present”. Records issues with sleep and “unable to say if due to stress or pain” but records that she is “currently sleeping well”. It refers to history of depression “Thyroid“ and: “No issues at present Migraines – well managed – NO PMH of heart, respiratory or inflammatory conditions, hormonal issues. …”. It does report “Mood is low due to pain.”[83]The entry on 25 March 2024 refers to a discussion about an alternative antidepressant.[84]The record of the consultation records on 26 March 2024: “switching back to sertraline…risk of convulsions and risk of serotonin syndrome with sertraline as on propranolol and tramadol, says has been on it before with these medications and would like to retry, aware of risks, adv restart at 50mg…not been on mirtazapine for past 2 weeks…”[85]There is no reference to panic attacks in the GP records and the Claimant does not provide any detail about them, in terms of the dates she had them, the frequency or effect/s on her normal day to day activities, in her witness statement or impact statement. Treating Doctor[86]The Tribunal note that none of the consultations recorded from November 2015 to March 2024 are with Dr Dayah. They are all with various other named doctors.[87]The fit notes provided by her doctors on 17 July , 28 August and 29 September 2015 all record work injury (backpain). The fit notes in October and November also refer to back pain only.[88]There is a letter dated 17 June 2024 from Dr H Chauhan, GP [page 215]. It is on the GP practice’s letter headed paper, with the address of the practice and the footer to the letter includes the names of the GP Principal, the GP Associates (none of which include Dr Dayah) and the Deputy Practice Manager and Practice Manager, It includes the email address for the practice, the Claimant’s date of birth and NIHS number, is signed and dated. It includes the following statements about her health: “There was a work accident involving lifting a box resulting in lower back pains. On 14th January 2016 she was assessed by Dr Broachwalla at a face to face consultation about her lower back pains & subsequent depression which she had developed for the past 6 months after the work accident. Citalopram 20mg once daily was prescribed as part of her management.” “The anti- depressant was changed on 5th December 2018 to sertraline 50m…this was increased to 100mg on 26th July 2023…as she felt more down with issues also affecting her appetite and sleep. ..a plan to gradually reduce the dose & cross taper with mirtazapine was initiated on 20th September 2023 by Dr Chauhan …However this causes weight gain …” Tribunal stress[89]There is a letter from Dr Dayah undated, which is on a plain, blank piece of A4, it does not have GP practice letter head, it does not include the footer as in the letter from Dr Chauhan, it does not include the Claimant’s name, NHS number or date of birth. The original version in the bundle [page 2016] is not signed. A subsequent copy provided [page 232] is signed but still is undated but still does not contain the Claimant’s personal details and is not on letter headed paper .It states (the grammatical and spelling mistakes have not been corrected): “I have examined his patients records and Past medical history. It is my Medical opinion that this patient has been suffering with longstanding anxiety and depression related to her workplace stress. This has been ongoing since 2016 since workplace accident, involving a lower back injury due to excessive lifting. The history obtained is that she has been suffering verbal abuse and harassment at work for a considerable period of time This has significantly contributed to her illness for which she has been receiving medication specifically for in the from of Propranolol, Citalopram and currently Sertraline. Imp + Mixed Anxiety and Depression due to worplace harassment.” Tribunal stress[90]Dr Dayah does not explain on what basis he is diagnosing a disorder of mixed anxiety and depression when the patient records make no reference to this diagnosis, he is not the treating doctor and the Claimant confirmed in cross examination that she had never met him.[91]The letter of the 17 June 2024 from Dr Chauhan makes no reference to workplace harassment and verbal abuse and does not identify this as a cause of the[92]The letter from Dr Dayah does not identify the date of the alleged workplace harassment. In terms of the patient’s records, in terms of the cause of the issues with her mental health, prior to her dismissal, there is no mention of the depression being caused by workplace ‘harassment’. On 14 January 2016 it refers to back pain [page 85] and that she feels depressed.[93]There is only references to back pain in the GP records, in the context of the cause of her depression, prior to September 2023. There are no entries which refer to the cause of the depression being linked to workplace harassment and indeed there is no reference work place harassment in the GP records whatsoever.[94]Dr Dayah does not identify in his letter what patient records, or other evidence, he is relying upon when forming an opinion that workplace harassment has contributed to an impairment of anxiety and depression. To state that opinion, in the absence of any supporting evidence, is troubling.[95]Dr Dayah also does explain in his letter what he understands the alleged harassment to have been and by whom.[96]In September 2023 [page 80] there is a reference in the GP records to erratic sleep and worries about her lack of employment. This is after her employment has ended and after the relevant period. There is a later entry in March 2024 [ page 79] which does not refer to workplace harassment causing or contributing to her mental health condition but refers to the impact of the accident and no longer being able to work on her mental health; “Primary Chronic back pain – no red flags, unhappy with management so far. Symptoms started with accident at work and no longer able to work. Has impacted on mental health…” “ Has issues with sleep – unable to say if due to stress or pain…” Tribunal stress Back to work Interviews[97]There are a number of back to work interviews and self-certification forms which I have taken into account.[98]A return to work interview in February 2016 records stomach cramps but only for half a days’ absence. It records that the Claimant’s has not suffered from this type if illness before in the last year and that the Claimant considers that she has fully recovered. It does not give the cause of the cramps [page 109].[99]There is a further absence for 1.5 days in December 2016 [page 112] which again says stomach cramps and does not give the underlying cause.[100]A return to work interview for 2 days absence (20 to 23 January) in January 2017 refers to constant migraines [page 117] and there is a further self-certification form for 3 days absence in January 2017 for headache, dizziness, pain ‘of my eyes’ [ page 118].[101]There is a further return work form for 2.5 days ( 27 to 28 February 2017) which refers to headache “ really big pain” but reports her feeling better after taking pain killers but refers to this not being the first time and having been very ill, vomiting and weak [page 130] and her self-certification refers to feeling dizzy, a “big pain” and vomiting and being weak [page 131].[102]A back to work form for 31 January/2 February 2018 [page 124] refers to chest pain, diarrhoea, belly ache, chest pain, and “still feels stress” and “pain in back”. The Claimant refers to feeling anxious returning to work following her recent absence, feeling stressed at home with family concerns combined with her health concerns. In the self-certification form for the same period she refers to increasing stress to a very high level [page 126].[103]The Claimant is absent in October 2018 and reports migraine, weakness of body and stress caused by the pain in her back.[104]A return to work form refers to an absence of 5 days in July 2019 for very strong headache and a fit note for migraines from 23 to 29 September 2019 and absence from 21 to 24 February 2020 for headaches, feeling weak and vomiting and bleeding [ page 177].[105]The Claimant was absent from 29 September to 5 October 2021 [page 187] due to headaches and “abdominal discomfort under investigation”. It appears from a letter from Leicester Royal Infirmary to her GP on 30 September 2021 that the abdominal pain was due to a kidney infection [page 188].[106]There are various other return to work interview notes recording absence for various reasons including back pain and liver infection during 2021 and 2022. A reference to absence in January 2022 due to headache and muscle ache, gives the reason for absence as Covid [page 195]. Legal Principles[107]The starting point is the statutory definition of a disability set out in section 6 (1) Equality Act 2010 (EqA). The supplementary provisions for determining whether a person has a disability are set out in Part 1 of Schedule 1 to the EqA.[108]The Government have issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (‘the Guidance’) under section .6(5) EqA. The Guidance does not impose any legal obligations in itself but courts and tribunals must take account of it where they consider it to be relevant. This is provided for in paragraph 12, Schedule 1, EqA and Goodwin v Patent Office 1999 ICR 302, EAT.[109]The Equality and Human Rights Commission (EHRC) have published the Code of Practice on Employment (2015) (‘the EHRC Employment Code’), which provides some guidance on the meaning of ‘disability’ under the EqA This does not impose legal obligations either but must be taken into account where it appears relevant to any questions arising in proceedings.[110]The Equality Act 2010 contains the definition of disability and provides as follows: Section 6. Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).(6) Schedule 1 (disability: supplementary provision) has effect.[111]Schedule 1 sets out supplementary provisions including: Part 1: Determination of disability Long-term effects 2 (1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected. (7) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.. Effect of medical treatment 5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (8) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.[112]PART 2 GUIDANCE 10 This Part of this Schedule applies in relation to guidance referred to in section 6(5). Examples 11 The guidance may give examples of— (a)effects which it would, or would not, be reasonable, in relation to particular activities, to regard as substantial adverse effects; (b) substantial adverse effects which it would, or would not, be reasonable to regard as long-term. Adjudicating bodies 12(1) In determining whether a person is a disabled person, an adjudicating body must take account of such guidance as it thinks is relevant. The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011)[113]I have taken account provisions as set out in the Guidance, including the following; A3. The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects. A4. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities... A5. A disability can arise from a wide range of impairments which can be:• mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behaviour; A6. It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. A7. It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. Section B Meaning of ‘substantial adverse effect’ B1. The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. This is stated in the Act at S212(1). B2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity. The way in which an activity is carried out B3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way that the person might be expected to carry out the activity compared with someone who does not have the impairment. Cumulative effects of an impairment B4. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect. Effects of treatment B12. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. Section C: Long-term The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected. The guidance provides two examples: A man experienced an anxiety disorder. This had a substantial adverse effect on his ability to make social contacts and to visit particular places. The disorder lasted for eight months and then developed into depression, which had the effect that he was no longer able to leave his home or go to work. The depression continued for five months. As the total period over which the adverse effects lasted was in excess of 12 months, the long-term element of the definition of disability was met. A person experiences, over a long period, adverse effects arising from two separate and unrelated conditions, for example a lung infection and a leg injury. These effects should not be aggregated. Tribunal stress. Meaning of ‘likely’ C3. The meaning of ‘likely’ is relevant when determining: whether an impairment has a long-term effect (Sch1, Para 2(1), see also paragraph C1), whether an impairment has a recurring effect (Sch1, Para 2(2), see also paragraphs C5 to C11), whether adverse effects of a progressive condition will become substantial (Sch1, Para 8, see also paragraphs B18 to B23; or how an impairment should be treated for the purposes of the Act when the effects of that impairment are controlled or corrected by treatment or behaviour (Sch1, Para 5(1), see also paragraphs B7 to B17). In these contexts, ‘likely’, should be interpreted as meaning that it could well happen. Recurring or fluctuating effects C5. The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ (Sch1, Para 2(2), see also paragraphs C3 to C4 (meaning of likely). Meaning of ‘normal day-to-day activities’ D2. The Act does not define what is to be regarded as a ‘normal day to-day activity’. It is not possible to provide an exhaustive list of day to-day activities, although guidance on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix. D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Adverse effects on the ability to carry out normal day-to-day activities D11. This section provides guidance on what should be taken into account in deciding whether a person’s ability to carry out normal day-today activities might be restricted by the effects of that person’s impairment. The examples given are purely illustrative and should not in any way be considered as a prescriptive or exhaustive list. D12. In the Appendix, examples are given of circumstances where it would be reasonable to regard the adverse effect on the ability to carry out a normal day-today activity as substantial. In addition, examples are given of circumstances where it would not be reasonable to regard the effect as substantial. In these examples, the effect described should be thought of as if it were the only effect of the impairment. Equality Act 2010 Guidance on matters to be taken into account in determining questions relating to the definition of disability 38 Appendix An illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. Whether a person satisfies the definition of a disabled person for the purposes of the Act will depend upon the full circumstances of the case. That is, whether the substantial adverse effect of the impairment on normal day to-day activities is long term. In the following examples, the effect described should be thought of as if it were the only effect of the impairment. Case Authorities[114]The time at which to assess the disability is the date of the alleged discriminatory act: Cruickshank v VAW Motorcast Limited 2002 ICR 729 EAT.[115]Goodwin v Patent Office 1999 ICR 302 EAT; The EAT set out guidance on how to approach such cases; “Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions.(1) The impairment condition Does the applicant have an impairment which is either mental or physical?(2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry’ out normal day to day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?(3) The substantial condition Is the adverse effect (upon the applicant’s ability) substantial? (4)The long-term condition Is the adverse effect (upon the applicant’s ability) long-term? Frequently, there will be a complete overlap between conditions (3) and(4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that dis-aggregation should not take one’s eye off the whole picture.”[116]In J v DLA Piper (2010 ICR 1052) the Employment Appeal Tribunal , presided over by Underhill P, gave important guidance as to the approach to the determination of disability which Employment Tribunals should adopt; at paragraphs 39 and 40 of their judgment the EAT said: – “39 …. Both this tribunal and the Court of Appeal have repeatedly enjoined on tribunal’s the importance of following a systematic analysis based closely on the statutory words, and experience shows that when this injunction is not followed the result is too often confusion and error.” “40. Accordingly, in our view the correct approach is as follows: – (1), it remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and other adverse effect (and in the case of adverse effect, the questions of substantiality and long-term effect arising under it), as recommended in Goodwin v Patent Office (1999 ICR 302) (2), however, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in paragraph 38 above, to start by making findings about whether the claimant’s ability to carry out normal day-to-day activities is adverse to be affected (on a long-term basis), and to consider the question of impairment in the light of those findings. (3) These observations are not intended to, and we do not believe that they do, conflict with the terms of the Guidance or with the authorities referred to above…”[117]In All Answers Ltd v W 2021 IRLR 612, CA, the Court held that, following McDougall v Richmond Adult Community College 2008 ICR 431, CA, the key question is whether, as at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so the tribunal is not entitled to have regard to events occurring subsequently.[118]The impairments do not need to be related or interact with each other for their combined effect to be considered: Ginn v Tesco Stores Ltd EAT 0197/05. In Brown v Beth Johnson Foundation ET Case No.1304755/15. Oral Evidence[119]The Claimant accepted in cross examination that she was prescribed Propranolol for migraines on 22 September 2021 but also gave evidence that it was prescribed for a stabbing chest pain. However, I note that the GP entry for 22 September 2021, when the medication was first prescribed [page 82] makes no mention of any stabbing pain, it refers only to diagnosis of migraines and a treatment plan of Propranolol.[120]While in written submissions it is asserted that Mirtazapine was prescribed for depression and anxiety, the Claimant gave evidence under cross examination that that Sertraline and Citalopram were prescribed for a depression diagnosis, she did not mention anxiety, and accepted that Mirtazapine was explored as an alternative to Sertraline. She also confirmed that Tramadol was prescribed for back pain [page 83].[121]I note that Dr Chauhan in his letter of 17 June 2024 addresses the medication prescribed and does not identify any medication prescribed for anxiety.[122]The Claimant gave evidence in cross examination that her anxiety developed because of workplace stress which was in turn because of the accident in July 2015 but that she had been diagnosed with migraines prior to that in 2014. The Claimant stated that the depression and anxiety were ‘ interlinked’.[123]It was put to the Claimant that there was no reference anywhere in her medical records to anxiety, the Claimant did not seek to identify any records, responding only that she had nothing to say to that point.[124]The Claimant was questioned about the letter from Dr Dayah, and gave evidence that it was based on her existing medical documentation and that she had telephoned the surgery and been referred to this GP and confirmed under cross examination that she had never met Dr Dayah.[125]The Claimant also accepted certain phrases in her impact statement were the same sort of phrasing used in Dr Dayah’s letter; including at para 6 [page 70] reference to “in the form of Propranolol” and the phrasing “ in the form of…” is also used in her statement [ page 62], but stated she had nothing to say about that. Submissions Claimant[126]Oral submissions were put forward briefly on behalf of the Claimant along with some written submissions which have been taken into account.[127]In summary it is submitted that the impairments of anxiety and depression are related to one another and were treated alongside each other. The symptoms of both include irritability. It is submitted that the impact statement sets out the details of the symptoms of anxiety. That Dr Dayah is not the Claimant’s day to day doctor but was put forward by the practice to provide an opinion based on her records. Respondent[128]The Respondent set out submissions in its document produced for the hearing on 8 August 2024 [pages 55 -61] and those have been considered along with its oral submissions.[129]In summary it submits that the Claimant has not evidenced disability by anxiety and that the Claimant was prescribed Propranolol for her ongoing history of migraines [page 65], she was prescribed Mirtazapine as an alternative to Sertraline for depression [pages 60 – 62]. No medication was prescribed for anxiety.[130]The doctors letter produced does not refer to anxiety [page 86] and there is no reference to anxiety in the medical records disclosed [pages 59-86].[131]It is submitted that there is no suitable medical evidence which supports a finding that the Claimant had a condition of anxiety at the relevant time and further, there is no reference in the medical evidence to panic attacks or issues with her concentration.[132]The only medical evidence which refers to anxiety is the letter from Dr Dayah and it is submitted that the nature of the prose is ‘suspect’, there are grammatical and typographical errors and it simply does not read like a GP letter. It is submitted that the phrase used in that letter; ‘in the form of’, is used by the Claimant in her witness statement, impact statement and in the Claimant’s response to the strike out application [paragraph 12 and 31]. However, the Claimant then mentioned having sent a screenshot in to the Tribunal of an email from Dr Dayah providing the Claimant’s NHS number and date of birth, it was not in the bundle but I located it in the tribunal file, attached to an email of the 23 September 2024. Counsel for the Respondent then confirmed that the issue was not the genuineness of this doctor but that it is not a suitable expert’s report. Conclusions Adverse effects condition[133]The Claimant’s position is that the depression she suffered can cause symptoms of anxiety and indeed her statement sets that out [page 68].[134]What the Claimant is seeking it seems however, is a determination that the Claimant also suffered an impairment of anxiety which of itself, aside from the depressive disorder, is a disability or, that her clinical disorder is of mixed anxiety and[135]There is a fundamental evidential difficulty for the Claimant in being able to establish that the effects of what the parties both accept to be effects of depression, are also the effects of a separate disorder or a disorder which includes a mix of two different types of mental health disorder (anxiety and depression).The Claimant herself describes the pleaded affects as ‘interlinked’ (other than those she identifies as specific to anxiety).[136]The Claimant appears in her impact statement, in paragraph 5 [page 70], to identify what she says are symptoms or effects peculiar to anxiety as a clinical disorder (as distinct from what are identified as effects of depression), namely concentration, tense muscles, panic attacks and migraines. However, there is no mention, in any of the medical evidence presented, of panic attacks and while the Claimant refers to panic attacks in the impact statement, she does not identify when they occurred, how frequently, the severity and/or the effects on her normal day to day activities.[137]The Respondent has conceded the effects of depression relied on by the Claimant, as set out in the impact statement however, panic attacks are described by the Claimant as a symptom specifically of anxiety and the Respondent does not accept that the nature of her mental impairment is that type of mental health disorder or that she had panic attacks.[138]In my judgment, the evidence does not support a finding that the Claimant suffered panic attacks during the relevant period. In any event the evidence does not support a finding supportive of the Claimant’s position that any panic attacks were long term and substantial (even as a combined effect)in the absence of any information about them). Further, even if she did suffer from panic attacks, there is no evidence to link any such alleged symptom with a different type of mental health disorder from the diagnosis of a depressive disorder. There is no mention of an anxiety disorder in the medical evidence as presented, other than the letter from Dr Dayah.[139]There is likewise no reference in the GP records to issues with concentration however, unlike the alleged panic attacks, the Claimant provides significant and persuasive detail in her evidence in chief. The Claimant refers in her statement [ page 62] to low mood and low motivation and in terms specifically of the effect on her concentration, her evidence includes the following: “Her reduced self – esteem, concentration and motivation impacted her ability and willingness to make decisions, having her always leave them to her partner which put further stress on him … “The lack of quality of sleep resulted in further reductions in concentration and tiredness during the day…” “Without medication treatment to help stabilise her mood she would be unable to function at all during the course of day to day activities” [witness statement page 63 and 63] The issues with sleep when I did not have medication to help, or the medication was not enough, caused tiredness, reduced concentration and lack of motivation which affected my activities throughout the day “ [para 13 page 71] The resulting headaches have affected me in many ways such as reducing concentration , making it more difficult for me to plan and do shopping as I would miss aisles or take the wrong items…” [ pare 15 page 72][140]The Claimant in her impact statement sets out a lot of detail about the effects of headaches on her concentration [see above and para 16 to 27 page 72 and 73].[141]While there is no reference to the impact on her concentration in the medical evidence, I conclude that on a balance of probabilities, an effect of the headaches (and particularly so in the absence of medication) and lack of sleep, is likely to have had a more than trivial impact on her concentration during the relevant period and had the effects on her normal day to day activities as she describes. However, the Claimant refers to the impact of sleep on her concentration and identifies lack of sleep as a symptom of anxiety and depression [para 5 impact statement]. The medical records do not identify the headaches as caused by an anxiety disorder rather than a physical symptom of the diagnosed depressive disorder.[142]There are some references to muscle pain or tenderness in the medical records, but that is in the context of the physical impact of the workplace accident and road traffic accident. There is reference at page 80 of the GP records in November 2015 to pain due to the road traffic accident and a diagnosis of frozen shoulder [page] and various entries about ongoing back pain due to those incidents [page 85/ 83/79]. There is no medical evidence which links any specific periods of tense muscles due to an anxiety disorder. The references to physical pain are clearly identified as connected with the road traffic collision and accident at work. In her own impact statement the Claimant refers to depression as well as anxiety causing physical as well as mental symptoms.[143]In my judgment, the evidence does not support a finding that what the Claimant alleges are effects specific to an anxiety disorder are the effects of a medical condition which qualifies as an impairment separate from depression (or an alternative disorder of mixed anxiety and depression). The Claimant herself accepts that symptoms of depression can cause anxiety and physical symptoms. The impairment condition[144]The first point to note is that the Respondent has conceded disability, as set out in its email of the 5 July 2014, on the basis of the evidence of the effects on the Claimant’s day do day activities as set out in her impact statement. The effects as set out, on her normal day to day activities, are not in dispute and those include uncontrollable daily worries, irritability, lacking energy and difficulties sleeping.[145]There is no reference however, in the GP records of an anxiety disorder separate from depression. That is not to say the Claimant did not suffer with anxiety as a symptom /effect of the depressive disorder, but anxiety as a disorder in itself is not identified, mentioned or diagnosed.[146]The only medical evidence which refers to a medical disorder of anxiety in addition to depression is Dr Dayah’s letter. However, I am not persuaded that the report from Dr Dayah [page 232] is reliable. Dr Dayah never conducted an assessment with the Claimant (unlike the assessment referenced by Dr Chauhan in the 17 June letter) and relied on her medical records. If he received a letter of instruction this has not been produced and therefore there is nothing to support his comments that she has suffered from verbal abuse from work for a considerable period of time which significantly contributed to her illness or that she suffered workplace harassment. The medical records support a finding that the problems with her back, including ongoing pain, caused or at least contributed to the depression. There is nothing within the medical records to support his comment that his impression (if ‘imp’ means impression) is that she suffered from workplace harassment which caused a disorder which can properly be classified in medical terms as mixed anxiety and[147]It is not material what the underlying medical diagnosis or cause of an impairment is and a tribunal is not required to identify the cause to determine whether someone is disabled, what is important is the assessment of the effects of an impairment. The Respondent however already accepts that the Claimant had a mental health impairment and it accepts the effects as set out in the impact statement.[148]The Claimant has not, established on the evidence, that there was another (or different) cause of the effects which the Respondent concedes, in addition to the impact on her concentration as described in her statements, which is largely based on the same symptomology as the depressive disorder.[149]In conclusion therefore, the Claimant has not established on a balance of probabilities, that the effects set out in her statements, relate to a separate anxiety disorder or that the Claimant had a mixed anxiety and depressive disorder at the relevant time . However, it is not in dispute that effects of the depressive disorder included uncontrollable daily worries, and irritability [para 5 impact statement]. Thus I conclude that such anxiousness was a symptom of the depressive disorder (but it was not an anxiety disorder of itself or a disorder which is a mix of both, in clinical terms).[150]In terms of any absences which resulted in her dismissal, the Claimant will need to establish that the reason for those absences was related to the back condition or the depression. Respondent’s Applications The Application[151]The Respondent applies to strike out the claim of a failure to make adjustments , under Rule 37 (1) (a) of the Rules or in the alternative a Deposit Order under Rule 39.[152]The Respondent submitted a written application for the hearing on 8 August 2024 [ pages 55 -61] and cites case law including the following :[153]Ahir v British Airways plc [2017] EWCA Civ 1392 para 16 per Underhill LJ and Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40.[154]In Aziz v FDA [2010] EWCA Civ 304 the Court of Appeal held: “the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be a continuing acts to constitute an ongoing state of affairs.”[155]In terms of a deposit order, the Respondent cites the cases of Van Rensburg v Royal Borough of Kingston Upon Thames UKEAT/0095/07[2007] ALL ER(d) 187 for authority that the tribunal is not restricted to considering purely legal issues and as to the definition of a PCP:” Ishola v Transport for London [2020] EWCA Civ 112.[156]The Respondent also made oral submissions. As to the facts, it is submitted that the Claimant seeks to argue an ongoing state of affairs from the following; that around January 2016 the Claimant was required to do normal duties instead of light duties (the PCP), this was possibly required by Ms West, her supervisor. She was on light duties from time to time between January and her dismissal and, that on 19 August 2023, she was dismissed for ill health capability.[157]The Respondent submits that Ms West left the Respondent’s employment sometime between 2016 and the date the Claimant was dismissed but that she was not involved in the dismissal. The dismissing officer was Ms Warne. Further, it is submitted that the Respondent has no record of the specific duties carried out by employees as long ago as 2016.[158]It is submitted that the Claimant has no reasonable basis for arguing that the two acts constitute an ongoing state of affairs in that they are two isolated complaints which are over 7 years apart and related to different protected characteristics (the reasonable adjustment claim is solely associated with her physical disability and the latter is also related to depression) and it is “unclear” whether the decision makers are connected.[159]It is submitted that there is no reasonable prospect of showing any connection between the incidents[160]Further, it is submitted that the Claimant has no reasonable prospect of succeeding in relying on her PCP. The Claimant relies on a singular act, it was not neutral but an act done to the Claimant on a singular occasion and thus the Claimant has no reasonable prospect of succeeding in convincing the Tribunal that it affords her protection under section 20 EqA. Claimant[161]The Claimant wanted to rely on its written response to the application and that has been considered and taken into account.[162]In brief the Claimant refers to the case authorities of Aziz v FDA [2010],Lamb v The Business Academy Bexley [2016]UKEAT/0226/15/JOJ, and HHJ Eady QC in Carrera v United First Partners Research [2016] UKEAT/0266/15 and British Airways v Starmer [2005] IRLR 863.[163]It is submitted that the Claimant relies on only one protected characteristic, namely disability (in the form of her back condition and the depression and anxiety).[164]In terms of the PCP, reference is made to the Statutory Code of Practice on the Equality Act 2010 as to the approach to be taken, namely the wide construction and that : “ A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a ‘one-off’ discretionary decision.”[165]That the fact that the Claimant was on light duties from time to time from January 2016 shows that it was recurring act.[166]Further, the Claimant submitted a grievance in 2016 including an allegation of unfair treatment by Ms West and reasonable adjustments but Ms West remained as her supervisor and it is alleged there was no discussion about other adjustments ( change of supervisor and provision of an auxiliary service to allow the Claimant to speak openly about her condition and feelings). It is submitted that the Claimant was harassed between 2016 and 2021 by Ms West and filed a further grievance in 2021 which included the conduct of Ms West toward the Claimant. Findings of Fact[167]I explained to the Claimant that she may if she wishes to do so, while giving oral evidence, also give evidence about why the complaints of discrimination in respect of the section 20/21 EqA claim, were not presented before the 7 December 2023, however the Claimant declined to do so. She did provide oral evidence as to her financial means, to be taken into consideration, should a Deposit Order be made. Legal Principles[168]The power of the Employment Tribunal to strike out a claim is provided under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237 which states: Striking out(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success…(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[169]The power to order a deposit is provided by rule 39 which states: (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.[170]A Tribunal may make a deposit order where a specific allegation or argument has little reasonable prospect of success however, this is not a mandatory requirement. Whether to make such an order, even where the Tribunal deem there to be little reasonable prospect of success, remains within the discretion of the Tribunal to determine.[171]The applicable time limit in respect of claims of discrimination is set out in section 123 Equality Act 2010. The relevant provisions provide as follows; 1) proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. … (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[172]The definition of discrimination arising from disability under section 15 EqA is as follows: (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.[173]The relevant statutory provisions in respect of the claim for failure to make reasonable adjustments are as set out in section 20 and 21 EqA:[174]Section 20 Duty to make adjustments (1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid…[175]Section 21 failure to comply with duty (1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person… Case law[176]The EAT in Hasan v Tesco Stores Ltd UKEAT/0098/16 held that when considering whether to strike out a claim, a tribunal must(a) consider whether any of the grounds set out in rule 37(1)(a) to (e) have been established (first stage); and(b) having identified any established ground(s), the Tribunal must then decide whether to exercise its discretion to strike out, given the permissive nature of the rule (second stage).[177]As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. In Anyanwu v South Bank Students' Union [2001] IRLR 305, a race discrimination case heard in the House of Lords, Lord Steyn stated at paragraph 24: “For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”[178]Lord Hope of Craighead stated at paragraph 37: “ … discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The Tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.”[179]In Tayside Public Transport Co Ltd (trading as Travel Dundee) v Reilly [2012] IRLR 755, the following summary was given at paragraph 30: 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, para 4 (EAT)).[180]In Mechkarov v Citi Bank NA [2016] ICR 1121 the EAT summarised the law as follows: “(a) only in the clearest case should a discrimination claim be struck out; (b) where there were core issues of fact that turned on oral evidence, they should not be decided without hearing oral evidence; (c) the claimant’s case must ordinarily be taken at its highest; (d) if the claimant’s case was ‘conclusively disproved by’ or was ‘totally and inexplicably inconsistent’ with undisputed contemporaneous documents, it could be struck out; (e) a Tribunal should not conduct an impromptu minitrial of oral evidence to resolve core disputed facts.”[181]Worcestershire Health and Care NHS Trust V Allen [2024] EAT 40. The EAT made the following observations: “13. The respondent submitted that conduct extending over a period must as a matter of law all relate to the same protected characteristic. I am not persuaded by that argument. For example, if a person took against a woman because of her race and sex and demonstrated this by sometimes making comments that were sexist, sometimes racist and sometimes both racist and sexist; I can see nothing in the language of the relevant provisions that would prevent the entire course of the racist and sexist behaviour constituting conduct extending over a period. Similarly, I cannot see any reason why conduct extending over a period cannot involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination. It may be more difficult to establish that there has been discriminatory conduct extending over a period where the acts that are said to be linked relate to different protected characteristics and different types of prohibited conduct, but there is no absolute bar that prevents there being conduct extending over a period in such circumstances” And; “32. Those who decided to dismiss the claimant had nothing to do with the decision to tick the ill health retirement box in the medical referral. There was a substantial gap between these two events and they involved different types of prohibited conduct, two different protected characteristics and decisions by different people. While none of those factors precluded the possibility of there being conduct extending over a period, it would have been necessary for the Employment Tribunal to clearly identify what the continuing discriminatory conduct was. The Employment Tribunal did not identify anything that could establish a continuing discriminatory state of affairs”. Tribunal stress Conclusions[182]I have approached the issue of the assessment, at this preliminary stage, on the merits of the Claimant establishing that the acts complained of was ‘conduct extending over a period’ and/or the prospects of establishing that the requirement, in or around January 2016, (that the Claimant carry out normal duties in place of light duties was a PCP), by taking the Claimant’s case at its highest .[183]Turning to the PCP issue first, the Claimant’s case, which does not appear to be in dispute, is that while this requirement was first implemented in 2016, since that date the requirement continued to be applied ‘on and off’. The Respondent does not dispute that the Claimant was required to carry out normal duties.[184]In terms of the likelihood of establishing that the requirement to do normal duties in place of light duties as a PCP, I do not consider that there is little or no prospect of establishing this. To require an employee to carry out their normal duties would be appear to be a neutral act, but even if the PCP is extended to a requirement to do so in place of lighter duties, it is still essentially the same requirement that would be applied generally to all employees i.e. to carry out their full contractual duties.[185]In terms of whether the act of requiring it formed part of continuing discriminatory conduct, the Claimant’s case is that the PCP continued to be applied on and off (although, the pleaded complaint is limited to what happened in January 2016). The Claimant however, also complains that there was a failure to consider other adjustments during that period (albeit this is background evidence and not further pleaded acts of discrimination). Further, the Claimant’s case is that Ms West remained a key decision maker in the issues relating to the Claimant’s case since Ms West joined the Respondent in 2016 and that the Claimant raised grievances about the conduct of her supervisor in 2016 and 2021 and that these were not properly addressed by management. The Respondent in oral submissions, merely asserted that it was ‘unclear’ whether the decision makers were connected and does not therefore put forward a positive case, at this stage, that they were not.[186]In her claim form, the Claimant describes the alleged continuing discrimination as follows [page 9]; “ I believe the company forced me to go on sick leave after refusing to make further adjustments to my work, when the symptoms of my back problems became aggravated later, due to this I was dismissed.” “At every stage, whether it was work time or meetings, I was stressed, intimidated and alienated. Over my entire period of employment, I felt humiliated and threatened, as if I had no rights protected me in the workplace. As every issue was resolved on the favour of the company or my supervisor with no intent to reconcile with my concerns.”[187]The Claimant’s case is that there was a continuing state of affairs in terms of treatment by the Respondent’s management which included discriminatory conduct from January 2016 to the date of her dismissal.[188]The Claimant was dismissed because of her absence and if it can be established that this was related to her disability, (back condition and/or depression) the Respondent will be required to establish that the treatment is a proportionate means of achieving a legitimate aim. That will require a consideration of whether adjustments could have been made to enable the Claimant to return to work.[189]The Claimant in her witness statement details what she alleges to be the impact on her mental health of the treatment she received from the Respondent and sets out numerous ongoing instances (although not pleaded acts) which she says led to her depression and her case as I understand it, is that the depression ( which she says was caused by or aggravated by the treatment) together with the back condition, led to her absence and then dismissal [page 63 ] and: “Ms Mularczyk was moved away from light duties and placed on normal duties on many occasions, particularly when the warehouse was busy in the summer or christmas periods. The repeated decision to do so placed Mrs Mularczyk at a disadvantage as due to her physical impairment but also the effects of her mental impairments of depression and anxiety normal duties were excessively more difficult for her to carry out and risked further aggravation of her symptoms…,” [ page 65][190]In essence, in her statement, the Claimant sets out various alleged acts which include a failure to make adjustments to her work as well as other behaviours from 2016, which she alleges caused or contributed to her disabilities and led to her absence from work and to the act of dismissal. While the Claimant has pleaded only 2 specific acts 7 years apart, there is nothing preventing her from giving evidence that they were connected by similar treatment which led to the dismissal (which she alleges links the pleaded acts).[191]I have had regard to the fact that an employer is likely to find it difficult to show that that unfavourable treatment is objectively justified if the reasonable adjustment(s) it failed to make ‘would have prevented or minimised the unfavourable treatment’: Perratt v City of Cardiff Council EAT 0079/16. Further, where no reasonable adjustments could have been made to alleviate the disadvantage suffered by the employee at the time of the unfavourable treatment complained of, the fact that the employer had failed to make reasonable adjustments at an earlier point in time may be relevant, although not necessarily fatal, to a justification defence in respect of a section 15 claim: Monmouthshire County Council v Harris EAT 0332/14.[192]The Claimant appears to be asserting that she can evidence a pattern of discrimination and other treatment, including a failure to make adjustments (which includes the pleaded act in January 2016), which led to a deterioration in her health, and that this led to her dismissal, with the first act being the pleaded discriminatory act in January 2016.[193]It is not accurate to say as the Respondent does, that the acts relate to two different protected characteristics, both acts relate to the back condition as a disability and the latter additionally to depression, which the existing back condition, appears from the medical evidence, to have caused or contributed to. On the Claimant’s case the same disability is relevant to both alleged discriminatory acts and only disability as a protected characteristic is relied upon.[194]While it may not be the same individuals responsible for the decisions taken in 2016 and the act of dismissal, that is not determinative of the question of whether the discriminatory conduct extended over a period of time . The Claimant’s case however, is that Ms West was involved in the conduct which she complains about in the intervening period which starts and ends with the two pleaded acts of discrimination.[195]There are significant areas of factual dispute which can only properly be ventilated at a final hearing after hearing the evidence and although there is scope for a valid challenge as to whether the acts properly constitute discriminatory conduct extending over a period, at this stage I do not assess those prospects as having no or little prospect, taking the Claimant’s case at its highest.[196]The application for the claim under section 20/21 to be struck out or for a Deposit Order made is refused Employment Judge Broughton Date: 5 January 2025 Notes(i) The above Order has been fully explained to the parties and all compliance dates stand even if this written record of the Order is not received until after compliance dates have passed.(ii) Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.(iii) The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.(iv) An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. Any further applications should be made on receipt of this Order or as soon as possible. The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’: https://www.judiciary.uk/publications/employment-rules-and-legislationpractice-directions/(v) The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties and state that it has done so (by use of “cc” or otherwise). The Tribunal may order a departure from this rule where it considers it in the interests of justice to do so”. If, when writing to the Tribunal, the parties do not comply with this rule, the tribunal may decide not to consider what they have written. "Recordings and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-andlegislation-practice-directions/" Order sent to Parties on …09 January 2025…………
REASONS
[1]The Claimants claim for Unfair Dismissal succeeds.[2]In relation to the claims for a Failure to Make Reasonable Adjustments and for Unfavourable Treatment Arising from Disability in relation to the Claimants disability of a back condition these claims succeed.[3]In relation to her claims for Unfavourable Treatment Arising from her disability of depression this claim fails. Procedural History[4]The procedural history of these claims is recorded in preceding case management orders. However, in summary, at a previous preliminary hearing before myself Judge L Brown, on the 8 August 2024, I refused an application by the Claimant to amend her claim to add the claimed disability of anxiety to the claim for a failure to make reasonable adjustments, thus leaving only the disability of the spinal condition being relevant to that claim. That claim did not relate to the act of dismissal.[5]At a further hearing before Judge Broughton, it was determined that the Claimant was not disabled by reason of anxiety for her claim for unfavourable treatment, and this meant that the spinal condition of the Claimant, and her depression, were the only two disabilities relevant to the claim of Unfavourable Treatment Arising from Disability. That claim related only to the act of dismissal.
The Hearing
[6]We had before us a bundle of 741 pages, and a further supplementary bundle of 81 pages. We also had a separate copy of the Respondents Policies and Procedures Handbook.[7]We heard evidence from the Claimant.[8]We also heard evidence from Richard Gillatt, Sue Warn and Ian Pridmore on behalf of the Respondent.
Findings of Fact
[9]Our findings of fact are now set out in both this section on fact finding and are also set out in addition, where necessary, in the concluding section of these written reasons where we apply the law to the issues and the facts.[10]The Claimant commenced employment on the 27 April 2015 as a Warehouse Operative. The Respondent manufactures and decorates posters, mugs and other promotional materials. The Claimants first language is Polish, and her understanding of English is somewhat limited. She was assisted at work on occasion by colleagues who interpreted on her behalf and by her partner in meetings that occurred latterly.[11]On the 9 July 2015 the Claimant suffered an injury to her back while moving a box, and as a result left work that day. The result of this accident was that the Claimant was diagnosed sometime thereafter with a slipped disc, and consequently degenerative spine changes. Whilst the Claimant alleges that she moved the box under the direction of Ms West, and that it was the companies’ fault, the Respondent alleged it was the Claimants fault for not weightlifting with bent knees, but in any event the Claimant never brought a claim for personal injury. However, from this point of the accident, Ms West, the Claimant’s supervisor, and the Respondent we find had full knowledge of the Claimants back problem, which the Respondents concede in any event was a disability at all material times.[12]At page 275 of the Bundle a Ms Anna Zborowska gave an account of the accident she witnessed, and described it as being difficult for the Claimant to get access to a space, but that she was then instructed by Ms West to go between the pallets to lift an object, and shortly thereafter the accident occurred. We find that from this point on, due to the Claimants perception that the accident was Ms Wests fault, and the Respondents perception it was the Claimants fault, i.e. the way she lifted the object, that the relationship between the Claimant and Ms West deteriorated. The Claimant was signed off sick from work for six weeks [P.278] following the accident.[13]The description of the incident [P.280] was that she had lifted a box, and which we noted was a box of mugs, and that it weighed 14 kilos.[14]There was a subsequent investigation that was passed to the H & S Authority, which was Blaby District Council, and who confirmed by way of a letter [P279], that was sent to Mr Akroyd who was her manager, that they would no longer be investigating the incident.[15]Her manager, Mr Akroyd, then conducted a back to work interview [P.284] on the 5 October 2025, after the Claimant had been off sick for approximately three months. There was a note that said, ‘not fully recovered’ and the form was completed by Mr Akroyd. There was also a question that said Do you feel there is anything you can do to support them,’ [P.285] and the answer was, ‘...light duties and more breaks for 4 weeks from the 5 October 2015.’[16]It also said that ‘...Weronika is awaiting a physiotherapy appt from the GP.’ Mr Pridmore at paragraph 10 of his statement said that ‘...the Claimant confirmed that she was fit and happy to return to work,’ but this was in stark contrast to the document which said the Claimant was ‘’ not fully recovered.’ Light Duties[17]Following the first fit note being issued, where it recommended light duties for four weeks from the 29 October 2015, and to avoid heavy lifting and prolonged standing for four weeks [P.286], a further fit note was then issued on the 27 November 2015 that said ‘Sitting work. Avoid lifting.’ [P.287] This was an openended sick note with no specified time frame, and we find from this point on the Respondent was aware of the need for reasonable adjustments to ensure duties that could be done sitting down, and which avoided the need to lift. We also find that there was no reference in the fit note to any lifting of any type that would be deemed to fall within ‘light duties.’ We find no evidence of any specific discussion with the Claimant at this time about this fit note and what light duties she could now safely carry out. We also found no evidence throughout the next seven years up until her sick leave on the 1 August 2022 that indicated any detailed discussions took place with the Claimant about appropriate reasonable adjustments for her in view of her back condition.[18]We found throughout this period that reasonable adjustments could have been made that would have avoided the need to stand for long periods of time and also to avoid weight bearing on a consistent basis. We found, for reasons we now set out, that duties could have been reallocated to her from the all the departments where she could largely speaking carry out duties sitting down and avoid heavy lifting by reference to abilities to lift in view of her disability. We find there was no attempt to find out what the Claimant could safely lift in view of her disability. Whilst the lack of any proper procedure or investigation into the Claimants disability is not of itself an act of disability discrimination, we found the lack of investigation in relation to the duty to make reasonable adjustments led to an ongoing situation where the issue of the Claimants need for consistent light duties was left unresolved. We also found no attempt was made by the Respondents to give her sitting duties, not even on a trial basis.[19]There were ten departments in the factory as follows: -19.11.1 Mugs19.11.2 Mugs picking19.11.3 Stationery19.11.4 Canvas19.11.5 Memorabilia19.11.6 Art group19.11.7 Framing19.11.8 Accessories19.11.9 Flat19.11.10 Rolled[20]Mr Gillatt gave evidence that there were approximately 30 people in the admin department covering sales, marketing and orders, and around 8 people in his production admin department. The Respondent overall employed approximately around 130 permanent employees [para 1 of SW statement], plus agency staff when required.[21]Mr Gillatt gave evidence that the Claimant worked in the following five departments following her accident: - 21. 1 The Claimant worked in the mugs department from 2015-2017. 21.2 The Claimant then moved to accessories, which was separate to memorabilia, a bench away, and that she was trained up on the tabbing gun, which was a memorabilia machine purchased in Spring 2017 and that although she was mainly working on accessories, she also spent good chunks of her time working in the memorabilia department. 21.3 From February 2020 the Claimant then worked in the art group for around six weeks up until the Covid lockdown in March 2020. 21.4 The Claimant then came back in October 2020, 6 months later, being the last worker to return from Furlough, and where she then worked in rolled posters, and it was said that this was the Claimants own choice.[22]We found that the Claimant chose to work in rolled posters. We find it is not to the point i.e., whether she asked to work in the rolled posters department, as this did not remove the Respondents duty to find consistent light duties for her in that department.[23]We find that she was then moved by Dawn West into the Mug Department at the end of July 2022 [para 100 WS. The Claimant raised with Dawn West that she would find it difficult to work in this department, and ultimately this then led to her sick leave as set out below on the 1 August 2022.[24]The Respondents case is that these duties in the five departments, were, largely speaking, light duties. The evidence was that in those five departments she would deal with merchandise such as rolled posters, accessories and packing cups. No mention is made of whether she had to carry the trays of cups, and we found that she did have to carry the trays of cups/mugs that could weigh up to 15kg per tray in that department. Her duties also, we found, involved dealing with posters which involved putting the posters into boxes, and that these were not sitting duties, and that it inevitably involved some bending and lifting of packages of posters, and we found that a box of posters contained up to 100 posters. We found that working with rolled posters, accessories and packing cups and mugs did not amount to sitting work, and did not avoid lifting as recommended in the sick note [P.287] and did not amount to consistent light[25]Mr Gillatt confirmed that at no point prior to her extended period of sick leave did they consider referring the Claimant to Occupational Health.[26]Mr Gillatt gave evidence that normally warehouse operatives would be rotated around all ten departments, and that no warehouse operative had a fixed role in any one department. We found that all workers in the factory were expected to work in whatever department they were allocated to and that where they worked at any one time was ‘order led.’ We found that this method of production led to a fixed mind set by the Respondents towards the Claimants need for light duties in that they failed to consider reallocating her light duties suitable for her in view of her disability.[27]We found that although following the accident the Respondent did restrict her duties to the five departments that this decision was taken without any Occupational Health advice on whether the duties she carried out in those five departments were appropriate light duties or not, and without taking any advice from an occupational health doctor as to whether the duties in each department were suitable for the Claimant having regard to her disability. In evidence Mr Gillatt asserted anything weighing between 10 – 15 kilos they considered light duties, whereas anything over 15 kilos and over was not. This was not based on any medical evidence and simply said words to the effect of that ‘…this was the industry standard’.[28]We found that the lack of referral for medical input into what were suitable light duties for the Claimant with her back condition resulted in an approach that was not based on any informed assessment of what was suitable for the Claimant to do in the workplace. This of itself is not an act of disability discrimination but we found that this lack of clarity over what were suitable light duties for the Claimant was then left unresolved for a period of eight years until her dismissal.[29]In the submissions of the Respondent, they said that in relation to her work in the art group: - ‘Nothing turns on the distinction between whether heavy duties involves lifting a max. of 10kg or 15kg. R’s position is that, following her sick note of 27.11.15 (p.287) C was allocated light duties – limited to a maximum of 15kg (RG crossex & statement para19-25) and where C could ask for assistance with lifting. N.B. for most of the time C was lifting considerably less than 15kg and went on to heavier lifting depts at her specific request.’[30]We did not find that giving the Claimant lifting duties of up to 15 kg amounted to light duties. We found that the accident that injured her back involved lifting a package of mugs of 14 kilos. It made no sense to assert that allowing her to periodically lift objects of up to 15 kilos amounted to light duties as this was just over the weight that she lifted when carrying out normal duties at the point of the accident i.e. 14 kg.[31]We found that the accident that injured her back involved lifting a package of mugs of 14 kg. It was never clear to this Tribunal how the Respondents reached the view that lifting up to 15 kg was a safe limit for the Claimant following her accident. It seemed clear to this Tribunal that the Claimant continuing to lift at that weight did require an occupational health assessment by the Respondent before they could genuinely conclude they were offering her light duties when lifting weights up to 15 kilos.[32]The Claimants case was that she did carry on having to stand and weight bear, and we found even on the Respondents own case that was the case. She gave examples of standing at a machine for the mug department for long periods of time. We did not find that the duties the Claimant was given in each of these five departments were consistently light duties that meant she could perform her duties sitting down throughout the years from 2015 to 2022 on the evidence before us and which avoided standing and lifting as recommended by her GP. We found that she would rotate around these five departments, as other employees did in the ten departments, on an ‘order led’ basis, and that often she would be standing for long periods of time and lifting, against the advice of her GP i.e. she would be carrying out normal duties instead of light duties. We therefore found the PCP of having to carry out normal duties in place of lighter duties was made out over the period 2015-2022.[33]It was the Respondents case that if she needed help, she could ask a colleague to move things for her or lift them for her. We found no documented evidence of such discussions with the Claimant, and we would have expected the Respondent to at least put formal arrangements in place to be able to ask colleagues to help her. We found that no such arrangements were made to assist the Claimant to make such reasonable adjustments from 2015 to 2022 i.e. arranging for colleagues to help her with lifting.[34]We also found there was no evidence before us of the Respondent monitoring the effectiveness of putting her on alleged light duties in the five departments throughout 2015-2022. We heard evidence from the Claimant, that on occasion throughout this time she raised her concerns about the lack of consistency of being provided with light duties and having to carry out normal duties with Dawn West and that she was told there were no light duties, and she was rebuffed.[35]We found that on several occasions throughout the years 2015-2022 that the Claimant, on the balance of probabilities, did repeat her request for light duties and referred to her struggles with carrying out her duties by telling Dawn West, and we find the Respondent failed to give them to her. First Grievance – 10 January 2016[36]The Claimant raised a grievance about a variety of matters [P.289]. The grievance letter dated the 10 January 2016 set out firstly the accident that occurred. She complained of being blamed for the accident and the refusal to supply CCTV footage to show how the accident occurred.[37]She complained about the issue of light duties [P.290]. She set out that: - ‘.. In my understanding it was threatened that if I wouldn't come back to normal duties in short time then it will be hard to find permanent light duties for me and I will lose my work position. Then I was forced to doing jobs which could aggravate my health problem and when I refuse order given by my manager Paul Ackroyd, I was asked to bring new sick note from my GP with information how long I can stand in work, how often and how long breaks I should have. Because on my sick note is written light duty and avoid standing. Then my manager doesn't know what it means longstanding because for him it is 8 hours. [our emphasis added] What was intimidation of me to force me to return to normal duties. Everything was quiet for short time when I brought new note from my GP about my special needs and work which was light duty sitting job only without end date. Very soon after this I was starting to be treated in very bad way by supervisors and manager. My requests and questions was ignored and I was kept with no knowledge about my duties on next day same like often changing my workstation and giving me contradictory orders to increase my stress level in workplaces.’[38]She also said: - ‘after my return to work I was told that it is hard to keep me and work on light duty bases. I was forced to doing job which could worsen my health condition what gave me high level of stress and made side effects on my recovery. This is how I was unfairly treated in my deep feelings giving me and my all family a lot of stress and awareness that I can lose this job in result of this all. Now I need medical help to deal with stress and my health condition can't be improved in this kind of environment. I am terrorised by management staff to that point even I have problems with conversation about my concerns with them because of blockade occurred by stress… firstly I want full and fairly investigation in the accident case in which a result of I suffered injury… finally resolve my health status and agree with fitting me on some permanent workplace to give me comfort of feeling that I am not a problem and cover me from people who can revenge on my person for the rising of all this concern….’[39]Other complaints were made which form no part of this claim.[40]A grievance meeting then took place on the 21 January 2016. The notes [p.292] show that the following was said to her: - ‘WM said she gave Paul the footnote regarding not standing and was not happy with this response RW said that we have found a sitting job on decals for WM there are not really sitting jobs in the warehouse. WM thinks that Paul has a problem with this but it is not her fault RG said it is difficult for us but there was only the one role, and we have been accommodating and giving her this.’[41]We found that as to working on ‘decals’ that this was a reference to working in the mug department where stickers/transfers were placed onto the mugs, something that the Respondent claimed was light duties. We found that she did this in January 2016 until she moved to the accessories and memorabilia department in the Spring of 2017. However, we did not find that working in the decals, accessories and memorabilia departments were appropriate light duties as it could not be done consistently by sitting down and there would have been some lifting of items such as carrying mug trays to carry this work out.[42]At the time of the meeting in January 2016 there had been two fit notes issued by the Claimants GP [P.286 and P.287]. The first dated the 29.10.2015 said that ‘advise light duties, avoid heavy lifting and prolonged standing for four weeks.’ Mr Gillatt gave evidence that until the Claimant went off sick, they never considered obtaining further medical advice on adjustments made for the Claimant. It was said that she was performing her duties, and that she at no point complained in her two grievances raised about having to carry out normal duties, instead of light duties and that the Respondent considered that she was on light duties. We found that in the first and second grievance she did raise the issue of needing consistent light duties.[43]Mr Gillatt gave evidence [Para 14] that ‘We also explained that we were trying to obtain some clarity on what work the Claimant could do in the factory. We explained that this was not straightforward, but we had accommodated her in finding some appropriate ‘light duties’ work for her.’ [our emphasis added]. We heard no evidence on how they sought such clarity on what work she could do and found that they did not seek such clarity.[44]He also said at paragraph 19 that ‘we work in a factory where materials and finished product need to be lifted and moved around. Every department has this activity, however, there are some department's where the lifting requirements are lighter and fewer.’ We found that this was a concession that what they classified as light duties were not light duties but was simply a reference to some light duties where there was not as much lifting and in any event.[45]The Respondent gave evidence by Mr Gillatt that ‘… lifting 10 – 15 kilos was carried out by the Claimant...’ [paragraph 21 – Claimants work in the Art Group], and this was part of his description of work assigned to the Claimant that he considered light duties.[46]We find that lifting objects up to 10 – 15 kilos were not established nor proven by the Respondent as amounting to consistent light duties for the Claimant. We found that the burden of proof shifted to them to show they had made reasonable adjustments to the requirement for the Claimant to carry out normal duties from 26 October 2015 onwards. We find that this example of the alleged allocation of light duties, in particular in the art department when lifting 10-15 kilos was a requirement imposed on the Claimant, and that they failed to establish and discharge the burden of proof that they did make the reasonable adjustment throughout the material time of her employment by giving her light[47]The grievance was rejected on the 27 January 2016 [P.294] and it stated that (our emphasis added where underlined below): - ‘Following your return to work we have provided you with work that takes into account the details on your Fit Note, however we did explain that in the warehouse environment there is not a great deal of tasks that can be done sitting alone. You should not take this to mean that we do not want you to work here just that you need to appreciate it is not easy for us to accommodate this, but we have done.’[48]We found this compelling evidence that on the issue of doing light duties that as admitted by them in the grievance findings ‘there is not a great deal of tasks that can be done sitting alone’ and which avoided standing [ as per fit note issued on the 27 November 2015 that said ‘Sitting work. Avoid lifting.’ [P.287] and that they carried on giving her duties that was not sitting work but involved standing. Knowledge of Depression and appeal against Frist Grievance[49]The Claimant then appealed the grievance outcome [P.299] on the 22 February 2016. In it she recorded that ‘After all this situation I have problems with stress in work and I must take some medicines to reduce my stress, my GP told me that I have depression and high stress by all this problems in the workplace.’[50]At page 321 [handed in and marked as the 22/2/2018] and at page 428 [marked 19/2/21] is a copy of the Claimants prescription for Sertraline and it is written on there at page 428 that, ‘Weronika provided this packaging for information – 19/2/21. She said she has been taking these tablets for 4 years and there are no side effects.’[51]We found from around the 1 March 2016 onwards [P.301] the Respondents had knowledge the Claimant suffered from depression having brought this to their attention following her grievance hearing in writing.[52]The Respondents refused to deal with this appeal against the grievance findings due to it being submitted outside the five-day period for appealing, and due to receiving it 21 days outside the time set for appealing [P.303] and despite the Claimant formally requesting extra time for it to be considered [P.301].[53]As to the reasons for her sickness absence, whilst there were other medical issues that caused sick leave, we found the only reason for the final bout of absence that led to her dismissal was her back problem [P.579]. We did not find that the condition of depression was causative of her dismissal in relation to her claim for unfavourable treatment arising from disability.[54]Having found that the Claimants first grievance, in part about the lack of reasonable adjustments at work, resulted in no formal action by the Respondent. With the grievance being rejected, she then continued with her duties allocated to her which we found were variously in the five named departments of Accessories, the Art Group, Mugs, Memorabilia and Rolled Posters [Para 19-24 of Richard Gillett witness statement].[55]Following lockdown, it was agreed that she would return to Rolled Posters [P.409] from her return on the 26 October 2020 onwards. Second Grievance – 2021[56]On the 18 February 2021 the Claimant raised a second grievance (425-427). In the main this resulted from an incident where it was said the Claimant had handed out exemption cards from mask wearing in line with Covid guidance at the time and that as a result Dawn West, her supervisor, had shouted at her. This is not an issue for these claims, but it was not in dispute that an altercation had occurred which upset the Claimant and led to a form of apology from Dawn West, who denied shouting but who accepted speaking loudly to her.[57]The Claimant was given an exemption from mask wearing following a letter from her GP [P.424] and how mask wearing made the Claimant anxious due to her pulmonary condition, although this is not a relevant medical issue for this claim.[58]She set out at the fifth point of her grievance that, ‘I am disappointed with carelessness from the side of the company regarding my health state’…’I am very disappointed that the company didn’t care much for my health state and didn’t monitor my condition.’ We find that she raised in her second grievance issues about her bad back by reason of reference to her ‘health state’ and a lack of monitoring of her condition in relation to the duties assigned to her by the Respondent.[59]A grievance hearing was set for the 25 February 2021 [P.431]. The notes from that meeting were in the bundle [P.435-446] and thereafter an investigation took place. Reference was made to her disability in the meeting where she said: - ‘with the situation where I had a back problem, I was seeing a nurse about it. Paul told me all the information about my back was thrown in the bin because it wasn't relevant anymore. That's why I feel that the company doesn't adjust work to my health’.[60]It was the Respondents case that she didn’t complain about a lack of light duties in the meeting for her second grievance. Whilst nowhere does she refer to light duties she does, we find, raise concerns about a lack of adjustments [P.439] when she says, ‘generally feel that any health concerns are being disregarded.’.[61]The grievance, where, amongst other things, she referred to as her ‘health state’ [P.453] was rejected. It said the following, which we found proved the Respondent knew she was referring, amongst other things, to her back problem in this grievance when they responded as follows: - ‘You told us that you feel your health concerns are not taken seriously by the company. We are aware that you have had a back problem, and adjustments have been made in the past to accommodate this, for example by give following your doctors recommendations of lighter duties and no heavy lifting. However, we're not aware of ongoing issues with this as you have not expressed any concerns and to the best of our knowledge you are comfortable working in the areas you work in [our emphasis added]. In any situation where an employee makes us aware that they have a health condition we will wherever possible make reasonable adjustments as necessary for them to perform their normal work duties. I can confirm that any information pertaining to your health is retained on your personal file in the HR department, in accordance with general data protection regulations. This includes any information that is disclosed your own return to work conditions. We are not aware that you've been formally diagnosed with any particular health condition, but if at any time you need to discuss any sensitive health related issues at work we will gladly facilitate this by ensuring you're able to do so in confidence and in a private setting and we will do our best to support you… this part of your grievance is not upheld.’ [our emphasis added]’[62]We found that as of 17 March 2021[p.453] the Respondent did not consider the Claimant disabled, and so did not make any reasonable adjustments by giving her consistent light duties.[63]We found that despite restricting her to five departments in 2016, which they asserted did not involve as many standing duties and lesser lifting duties, but which we find did not consistently avoid lifting and standing, that as at March 2021 there was still no attempt whatsoever at making any reasonable adjustments, and the five departments she worked in did involve carrying out various normal duties instead of consistent light duties.[64]The Claimant appealed the second grievance outcome [P.460-464]. In relation to her ‘health state’ the Claimant said as follows [P.463]: - ‘In response to my grievance about their disinterest in the consideration of my state of health it has been found that there is no information from the company about my other medical conditions that and that you only have an entry about a problem with the lumbar spine that I acquired after an accident in this company in 2015. Of course, you indicated that I did not give any size that the problem still exists because I did not complain about the pain and discomfort during work. The truth is thanks to powerful drugs I'm able to work with the painkiller, but it is paid for with increased effort and adaptation movements in the position and increased pain after returning home. I did not feel sorry for my attempts were ignored or downplayed by my superiors, so I accepted the situation and tried to take care of myself. After the information I got from Paul that he got rid of my paperwork authorising me to work lightly when I tried to file a complaint against the supervisor for non-compliance with the recommendations given by my doctor, I fell out of wanting to fight for my rights and I dealt with the problems myself by increasing the doses of drugs in their rotation. I also found that after repeatedly admonishes my supervisor about my limited fitness it is her responsibility to remember about my health limitations because it is one of the aspects of health and safety for which she is responsible.’[65]The meeting with the Claimant about her grievance took place on the 15 April 2021 [P.491-496]. She told them in the meeting that [P.493]: - ‘my back situation has not changed for years, I'm in constant pain but trying to manage it as best as I can using creams and tablets. What are your limitations? In the past I brought us doctors note which said light work and sitting work but I don't feel like it was taken into consideration. I'm still being asked to do things I shouldn't be doing. Tell us some of the tasks you're being asked to do that you shouldn't do. It's difficult to stand in one place without moving, it's easier to walk a bit between tasks. Picking is easier because it's easier when I move. What about lifting? I can still lift the weight that doesn't cause any pain, and I try to do things so as not to cause pain.’[66]We find that the Claimant was left to make her own adaptations in the workplace to manage her disability and no proactive management of her disability was taking place in any form whatsoever by the Respondent as of April 2021, despite her repeated requests for consistent light duties.[67]The appeal outcome (497-499) confirmed that the original grievance findings still stood and were unchanged. However, for the very first time and over five years after the claimant’s accident the respondents confirmed [p.498] that, as one of the main health conditions was ongoing back pain, they wanted permission to obtain a medical report from her GP to ensure they were fully meeting their obligations in respect of this.[68]On the 20 July 2021 the Respondent wrote to the Claimants GP [P.508-509]. They asked for advice about any suitable reasonable adjustments that could be made. No reply was ever received from the Claimants GP. We found that this was due to an email the GP sent to the Respondent requesting payment of a fee for a report not then being sent to the correct email address. Instead, it had been emailed to a sales email address. Ms Warn admitted during evidence that she may not have chased for the report after she sent the request, and we found that she did not chase the outstanding report from the Claimants GP. Claimants sick leave from 1 August 2022 to dismissal[69]At paragraph 100 of the Claimants witness statement she gave evidence that at the end of July 2022 she was assigned to normal duties at the mug machine that required her to be standing still for a long period, that it was the worst job for her and it made her back ache standing still for so long, and that the packaged boxes were much heavier, more than twice as heavy as boxes with posters. She said that she was placed on this job by Mrs Dawn West after she had told her she could not carry out these duties. We accepted this evidence of the Claimant.[70]The Respondents could have called Ms Dawn West to give evidence and Ms Warn confirmed during evidence that they did not do so because of the difficult history in effect between the Claimant and Ms West. The Claimant went on to say in her evidence at paragraph 100 that after handing in her fit note which said ‘degenerative spinal changes, awaiting specialist input. For usual hours, no heavy lifting ^10kg or repeat bending’ [P.531] on 27 July 2022…’ that Ms Dawn West mocked her and said there were no light duties for her. We accepted this evidence and found it occurred as described by the Claimant. We found a failure to call Dawn West in this claim meant we could draw an inference and infer that the events occurred as described by the Claimant which led to this discriminatory state of affairs.[71]The Claimant gave evidence that she was then told by Ms West to obtain a sick note saying she was not fit for work in the absence of any suitable light duties and that as a result a sick note was obtained by her [P.532] which said, ‘you are not fit for work.’ Her evidence was that the failure to give her consistent light duties meant she was forced into taking sick leave by Ms West.[72]We found that this account of events was made out by the Claimant, and we find that she was forced onto sick leave by the Respondent due to their insistence at this point in July 2022 that she work standing at the mug machine, which could not be, we find, described as light duties.[73]The Respondents case was that she was on light duties. We find that she was not on light duties consistently throughout the time from 2016 to her sick leave commencing on the 1 August 2022. The Respondents did not run their case on the basis that they could not comply with the GP note at page 531, but instead disputed that they received the sick note, something we deal with below. Sick Leave of Claimant from August 2022 to dismissal[74]During the Claimant’s sick leave the Respondent kept in touch with the Claimant, and they were aware that the Claimant had an appointment with a specialist [P.537]. On the 21 February 2023 [P.557] the Respondent sought permission from the Claimant to obtain a report from her doctor on her current state of health and on a prognosis for her future health.[75]On the 27 February 2023 [P.562] the Claimant complained that she had provided consent the year before and that it had not been actioned by the Respondent. She stated that not only did they not act on her consent but that when she requested light duties, she was put on a machine to take out the mugs which was one of the hardest duties physically for her. At this point she initially refused to give access to her health records, and asserted the Respondent ‘didn’t care’ about her health.[76]We have already found that the Respondents failed to chase the medical report after it was requested by them from the Claimant’s GP. Had Ms Warn chased the report we found medical input would then have been obtained from the Claimants doctor at least one year earlier into whether adjustments could be made to help the Claimant.[77]The Claimant went on to say that there had been no change in her health state from when she last provided her consent the year before. She also said that it would not help the Respondents as she had not yet seen her surgeon at the spine clinic and that it would mean the information they needed would not yet be currently available, and that it would, ‘be best to wait to my visit with surgeon because then I will be know what medical steps will be taken next and this will clarify situation about my needs or adjustment in work and will roughly time when I will be able to come back to work.’[78]We found the Claimants desire for her to see her surgeon before her medical records were released to the Respondent understandable, and her scepticism towards the Respondent had been caused by their previous lack of action in obtaining a report for her GP.[79]At this point Ms Warn pointed out that the report had never arrived from her GP [p.562] and in reply the Claimant asserted she still wished to wait for her surgeon to see her before releasing her records and giving consent for this to happen [P.561].[80]In reply on the 9 March 2023 Ms Warn stated that they now wished to obtain a report from an independent medical practitioner/Occupational Health Specialist rather than obtaining a report from her GP and that she was in the process of organising an OH Service Provider [P.561].[81]The Claimant stated her concern in reply about whether they were looking to dismiss her due to her back problem [P.560] and repeated she thought the injury was their fault.[82]On the 9 March 2023 the Claimant then consented to the OH medical report being obtained by the Respondents [P.569].[83]On the 24 March 2023 the Respondent then confirmed [P.574] that they had decided to wait until she saw her specialist before obtaining a report from their appointed OH practitioner. The following was said: - ‘As your planned appointment with the spine specialist is now only a few weeks away we have decided it will be best to delay the OH appointment until after you have seen the specialist. As you have rightly said, you will hopefully have a clearer picture of what your future treatment needs will be after seeing the specialist and we recognise that this will be beneficial to the OH consultation’.[84]On the 21 June 2023 [P.584-599] the Respondents completed a form for the medical assessment of the Claimant to take place. The usual requests were made for the report to cover what adjustments could be made and what the Claimants prognosis was. The Respondent said in the form that light duties had been made available to her in the past and that: - ‘Warehouse operatives are being rotated and trained to work in all areas to enable us to be more agile and meet these demands and it may therefore be difficult to guarantee that duties will always be available in lighter areas.’ [our emphasis added][85]A report was prepared and made available on the 26 June 2023 – pages 594- 599 – the report recorded that the Claimant said that while she had been able to cope generally with light duties over the years, she had been expected to undertake heavier duties when the warehouse was busy [P.595]. It also identified that prior to her current absence symptoms indicated a different slipped disc to that caused by the original accident, and which was now causing her symptoms.[86]The issue of the Claimant refusing physiotherapy in favour of having a spinal injection was referred to. We had no medical evidence before us about what would have happened had she had the physiotherapy at that point, nor did we have any such evidence about the treatment options that were suitable for the Claimant at that time. We find that she preferred a spinal injection to physiotherapy at this point in time but that ultimately that was not provided for her.[87]The report confirmed she appeared to have a mood disorder caused by the back injury and due to her perception of how she was treated by her employer. It then went on to say that: - ‘Her specialist has not provided any recommendation in relation to workplace adjustments, as there is currently no treatment in place, they have not provided recommendations regarding timescales for improvement.’[88]It was not in dispute that Dr Greg Irons, the author of the report, never contacted the Claimants specialist for information about her planned treatment and future prognosis. There was no explanation before us why this did not occur, and we would have expected the Dr to contact the spinal specialist to obtain such information and to consider if the Respondent could offer her light duties. We did not accept the submission that it was for the Claimant to obtain such information from the specialist and provide it to the Respondent and we found the OH Doctor and Respondent, as part of a reasonable investigation into her absence and likely future prognosis, and in relation to the question of her continued employment, should have investigated the issue of prognosis and treatment as part of a reasonable investigation about her likely return to work before deciding to dismiss her. Instead, we find that they relied on third hand information from the Claimant about what her specialist had said to her, this being a Claimant whose first language was not English. We did not find that this amounted to a reasonable investigation into her continued absence from the workplace, and in relation to their ultimate decision to dismiss her.[89]The report said it was unable to provide any timescale for the Claimants return to work [P.598].[90]The report went on to say that: - ‘I am hopeful with appropriate medical and workplace support that Ms Mularczyk will be able to return to her previous role, albeit some ongoing adjustments may be required. This will be dependent on symptomatic improvement.’[91]We found that despite this opinion, i.e., that with appropriate medical and workplace support that the Claimant would be able to return to her previous role albeit with some ongoing adjustments to her role, that no such medical and workplace support was investigated as a possibility at this point, nor was there any further attempt to give her light duties that consistently avoided standing and lifting, and three days after they discussed the report with her she was then dismissed.[92]We found the Respondent at this stage had a duty once again at the point of receiving this final occupational health report on the 29 June 2023, to consider reasonable adjustments and light duties to enable her to return to work to avoid her dismissal.[93]The Claimant was invited to a further meeting [P.602] to discuss the report. A meeting took place on the 17 July 2023 and notes were in the bundle of that meeting [P.603]. Discussion took place about the Claimants desire for spinal injections instead of physiotherapy. They also said as follows [P.604]: - ‘OK so if return to work in the near future isn't likely, then we would consider whether there might be any other positions available that might be more suited to your state of health that could help you get back to work sooner, we would also look at whether any reasonable adjustments could be made to your work arrangements to help you return in some capacity and support you on your return. Unfortunately, there are no alternative positions that we could consider and as we have no guidance or recommendations from your specialist in relation to workplace adjustments or timescales for improvement that does make it very hard [our emphasis added].’[94]We found that during the meeting no discussion took place at all about what adjustments the Claimant thought could be made to enable her to return to work. We found that there was no exploration of this by the Respondent prior to that meeting or during that meeting as to whether a position could be created through the reallocation of some of her existing duties where she was able to mostly sit during her working hours and avoid heavy lifting, and repeated bending.[95]On the 15 August 2023 a further meeting took place and notes of that meeting were in the bundle [P.615-616]. It was said that the Claimant stated as recorded in the notes that ‘she was happy with its contents.’ The Respondents counsel sought to prevent cross examination by the Claimant of their witness on this report and said she had confirmed in cross-examination that she was ‘happy with it.’ I pointed out that this Claimants first language was Polish, and, in any event, we did not find that this reply by the Claimant amounted to a concession she could not return to work as the report itself set out she would be able to do so, dependent on prognosis, if adjustments were made. A bald statement that the ‘Claimant was happy with its contents’ did not in any event take the issue any further.[96]In the meeting the Claimant confirmed that she was starting physiotherapy on the 22 or the 28 October 2023 which was only two months hence from the date of the meeting. The meeting lasted twenty minutes. We found there was no detailed discussion about what adjustments might be made to facilitate her return to work, and having found that she worked for eight years without any reasonable adjustments that amounted to consistent light duties, we found that any other reasonable employer as part of a reasonable investigation would have discussed with the Claimant the issue of what the Claimant felt she could do at work, before any decision was taken about her continued employment with the Respondent.[97]Three days later, and despite the report stating her return to work may be possible with adjustments she was dismissed due to incapacity as set out in the letter dated the 18 August 2023 [ Page 618-619]. It said as part of the reason for dismissal that: - ‘You have no information at this time regarding the duration of the physio, or what will happen afterwards.’[98]Ms Warn gave evidence that at the point of dismissal she considered if there were any other vacancies outside the warehouse the Claimant could carry out in the company and concluded there were none which then led to her dismissal. She also confirmed however that she did not discuss with anyone outside the warehouse whether the Claimant could carry out any other roles, nor was there we found any evidence of this being discussed with the Claimant prior to her[99]The Claimant appealed her dismissal – page 623-625. She set out physiotherapy may have facilitated her return to work ‘by the end of year.’ She pointed out that they had referred to ‘various options’ without setting out what they were. We note that in this regard [p.615- in the last meeting prior to dismissal,] that the options referred to her firstly remaining on long term sickness absence until recovered sufficiently to return to work or secondly her employment being terminated on the grounds of long-term capacity to work. We found that there is no reference to adjusted light duties so she could return at this point to work. Claimants Appeal against Dismissal[100]An appeal hearing then took place on the 4 September 2023 – p.634 – 679.[101]The Respondent, as set out above, had initially said they would wait for her to see her specialist, before they instructed their OH Doctor. This was then followed by no communication between the Respondent or their OH advisor and her specialist. The Claimant said, in terms, in her letter of appeal [P.624] that there had been little point in them agreeing to wait to see her specialist when they then failed to communicate with her ‘doctors’ as to what they had concluded about treatment and prognosis, and by this we inferred she was referring to her specialist as well.[102]While we find the Respondent was entitled to appoint their own independent OH advisor, and that any failure to conduct investigations by failing to communicate with her specialist cannot of itself amount to a failure to make reasonable adjustments, we do not find they were entitled to ignore any treatment plan proposed by her specialist for the purposes of her unfair dismissal claim, and the records he held about her disability. In particular his views on how long any treatment would have taken to achieve any improvement for the Claimant, and his views on her future prognosis were highly pertinent as part of a reasonable investigation in relation to their decision whether to dismiss her or not.[103]Whilst we find there was some confusion over when she would start the physiotherapy i.e. August or October 2023, we find in any event that this was a relatively short time away from the date when they decided to dismiss her on the 18 August 2023 [P.618].[104]On the 14 September the Claimants appeal against her dismissal was dismissed [P 677-679]. It said that due to the length of time she had been absent, which was at this point just over one year, and that the further significant period of time before physiotherapy was to commence, which we note at this point was less than one month away or thereabouts, and the uncertainty around duration and the success of that treatment, that they were dismissing her. They said that the issue of reasonable adjustments to enable her return to work had been considered but that her specialist had not provided any recommendations or guidance to workplace adjustments, despite the fact the Respondent had not directly, nor through their OH Doctor, sought these prior to deciding to dismiss her as set out above. They stated they ‘were unable to explore this option with her.’ We did not find they were unable to explore this option with her.[105]We found that any other reasonable employer conducting a reasonable investigation would have asked the specialist for his recommendations on adjustments before dismissing her, as they had originally planned to do, and then discussed those with the Claimant. In making this finding we had regard to Ms Warns evidence [para 54] that: ‘By this time it was only four weeks until the claimant was due to see the spine specialist and I was of the opinion that it would be best to hold off with arranging the occupational health assessment until after this had taken place so that any recommendations made by the specialist in relation to the claimants treatment plan and future capabilities for work could be taken into consideration and assist us with being able to manage her absence and future return to work.’[106]Mr Gillatt [para 47] gave evidence that ‘all assistance and reasonable adjustments were made to assist the Claimant with her back injury, it is clear and documented that the company made every effort to assist the Claimant with this and her return to work.’[107]We preferred the Claimants evidence that they did not try and assist her with her return to work and we make this finding based on all evidence before us and there being no specific discussions with her about what they could do by way of reasonable adjustments to facilitate her return to work. Duty to Make Reasonable Adjustments[108]In a case concerning a breach of a duty to make reasonable adjustments the Respondents must either say there was no breach, as was asserted in this case, but in any event in the alternative they may run an argument about when they did breach such a duty for the purposes of determining limitation.[109]No such submissions were made by the Respondent on this point on limitation. The issue of limitation was not referred to by the Respondents in their Response, and the only time it was referred to was in the List of Issues drawn up by the Judge at the preliminary hearing and thereafter no amended Response was filed alluding to limitation. The Claimant was not cross examined either on the issue of limitation and the date when she issued the claim. We found that those witnesses for the Respondent who had knowledge of the events over these eight years were all at the hearing giving evidence, and all had a full recollection of the events in question. The other potential witness they chose not to call, was Dawn West the Claimants supervisor, and we found she would have had important evidence to give about the allegations made by the Claimant about the breach of the duty to make adjustments for her over the time period of eight years, and in particular in relation to moving her to the mug department in July 2022 which then led to her sick leave. It was confirmed that she still worked for them at the date of the hearing.[110]As we find there was a breach of the duty to make adjustments, we now set out the dates upon which we find the duty was breached as follows: -110.1 Upon the Claimants return to work [page 285] the GP note advised light duties from 5.10.2015 for four weeks, and we find they should have been put in place within a reasonable period of seven days following the sick note.110.2 On the 29.10.2015 [P.286] a further sick note was provided advising light duties, and again by at least one week later we find they should have been put in place within a reasonable period of seven days following the sick note.110.3 On the 27.11.2015 [p.287] the GP note advised on an open-ended basis light duties i.e. sitting duties and avoiding standing and as we found they should have been in place by now in any event following the issue of the above fit notes. In any event we find that they should have been put in place in the alternative at the latest by early January 2016 as set out in the List of Issues.110.4 When the Claimant raised her first grievance on the 10 January 2016 and alerted the Respondents to her continuing difficulties with her back, we found that as of the 27 January 2016, when they sent the grievance outcome, that they should have put such light duties into place. We found that instead they rejected her grievance and failed to put such consistent light duties into place by this date.110.5 In her return-to-work interview [P.317] on the 6 February 2018 the Claimant referred to her need for light duties where it was recorded ‘no heavy lifting’ and ‘pain in back’, and this was we find once again ignored, and we find by this date the breach of duty to make reasonable adjustments was repeated once more by failing to put into place consistent light duties.110.6 In her appeal against the grievance findings [P.461] the Claimant stated that, as at the 26 March 2021, ‘..I reminded her of my back problems and how that I can’t stay here long, she disappears the whole day, leaving me in the given position and she avoided me from giving me a chance to ask when someone would change positions with me.’ We found the Claimant was clearly raising her need for reasonable adjustments and that Dawn West was ignoring her requests. We found that by this date the breach of duty to make reasonable adjustments was repeated once more by failing to put into place consistent light110.7 We found that during the appeal hearing in April 2021 [P.493 onwards] against the dismissal of her grievance above that she specifically told the Respondent that, ‘My back situation has not changed for years, I’m in constant pain but trying to manage it as best as I can using creams and tablets,’ and ‘In the past I brought a doctor’s note which said light work and sitting work but I don’t feel like it was taken into consideration. I’m still being asked to do things I shouldn’t be doing.’110.8 We found that following the dismissal of this appeal the Respondent started to finally take some action in relation to the Claimant’s disability and asked for permission to instruct the Claimant’s GP as at the 20 July 2021 [P.508].110.9 We found that the Respondent having obtained the Claimants permission to get a report at the end of June 2021, they then compounded this failure by failing to chase the GP report when it didn’t arrive. It was not until a year later in July 2022 that the Respondent told the Claimant that the GP report had never been obtained. We found that by this date from July 2021 onwards that the breach of duty to make reasonable adjustments was repeated once more by failing to put into place consistent light duties.110.10 We found that the fit note dated the 27 July 2022 then stated [P 531] – no heaving lifting above 10 kg or repeat bending. We find that the Claimant showed this fit note to Dawn West but was then told by Dawn West there were no light duties. We found that by this date as of 27 July 2022 that the breach of duty to make reasonable adjustments was repeated once more by failing to put into place consistent light duties.110.11 We found that a further meeting then took place to discuss the occupational health report [P.603 - 605]. She was told on this date of the 17 July 2023 that there were no ‘alternative positions’ available. We found that by this date as of 17 July 2023 that the breach of duty to make reasonable adjustments was repeated once more by failing to put into place consistent light110.12 We found that at the final meeting with the Claimant on the 15 August 2023 [Page 615] that they failed to discuss once more with her the possibility of consistent light duties. We found that by this date as of 15 August 2023 that the breach of duty to make reasonable adjustments was repeated once more by failing to put into place consistent light duties. Disputed Sick Notes[111]The Respondents disputed that two sick notes were handed in by the Claimant which were at P.531 (dated the 27.7.2022) and P.353 (dated the 05.12.2018) of the Bundle. They based this on the fact they did not have a signature on them from the Respondent to show receipt whereas other sick notes did have. As to the disputed sick notes we find she showed them to Dawn West her supervisor who was aware of what they said about light duties – [P.531] and [P.353]. Equal Opportunities Training[112]We found that set against this continuing failure to make reasonable adjustments that it was highly relevant that Ms Warn, and all other Managers and Supervisors had not been provided with any equal opportunities training by the Respondent. Submissions[113]We took the submissions of both parties into account but do not repeat them in full here. THE ISSUES, THE LAW & APPLYING THE LAW TO THE FACTS Unfavourable Treatment Arising from Disability[114]Section 15 of the Equality Act 2010 provides as follows: - 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if: (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[115]In Pnaiser v NHS England and another [2016] IRLR 170, the EAT summarised the proper approach to claims for discrimination arising from disability as follows: The tribunal must identify whether the claimant was treated unfavourably and by whom. It then has to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person, but keeping in mind that the motive of the alleged discriminator in acting as he or she did is irrelevant The tribunal must then determine whether the reason was "something arising in consequence of [the claimant's] disability", which could describe a range of causal links. That stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. The knowledge required is of the disability; not knowledge that the "something" leading to the unfavourable treatment was a consequence of the disability. Was it unfavourable treatment?[116]The concept is broadly analogous to the concepts of disadvantage and detriment found elsewhere in the EqA 2010.[117]We have had regard in particular to the following aspects of the EHRC Code: ‘Being treated unfavourably for the purposes of section 15 of the EqA 2010 means that the person "must have been put at a disadvantage" (paragraph 5.7); and "The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about, so an unjustified sense of grievance would not qualify…. It is enough that the worker can reasonably say that they would have preferred to be treated differently" (paragraph 4.9, in the part of the EHRC Code dealing with indirect discrimination). This guidance stems from cases such as Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11.122. 1[118]Case law establishes that there is a relatively low threshold for demonstrating that treatment was unfavourable, as demonstrated by the above provisions of the EHRC Code. Burden of Proof[119]In cases of 'discrimination arising from a disability', what is required at the first stage is that the Tribunal firstly identify the individual/s responsible for the treatment complained of and enquire into the reason for that treatment, undertaking this exercise as if determining the reason for conduct complained of in a direct discrimination claim.[120]Secondly, they must determine - applying an objective test - whether there is a connection between the disability and "the something" that provides the reason for the treatment in issue as per Pnaiser. Disability (Equality Act 2010 section 6) 24. Did the claimant have a disability as defined in Equality Act 2010 section 6 at the time of the events the claim is about? The Tribunal will decide: 24.1. Did they have a physical or mental impairment: back pain and depression?[121]The Respondents conceded both disabilities of back pain and depression at the material time. However, they disputed knowledge of depression at the material time. Discrimination arising from disability (Equality Act 2010 section 15) 25. Did the respondent treat the claimant unfavourably by: 25.1. Dismissing her?[122]We found that the Respondent did treat the Claimant unfavourably by dismissing her.26. Did the following things arise in consequence of the claimant’s disability: 26.1. The claimant’s sickness absence that led to her dismissal?27. Was the unfavourable treatment because of her sickness absence?[123]We found that the sickness absence arose from her back problem which then led to her dismissal. However, we find that there was no mention of depression in any of the documents leading to her dismissal, nor did her final bout of sick leave arise from her depression. We therefore find that the dismissal, which was unfavourable treatment because of her sick leave, and this sick leave related to her disability of a back problem, led to her dismissal. We found that the unfavourable treatment in dismissing her did not arise from her depression. 28. Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 28.1.a. The Respondent needed to manage its staff levels to maintain the operational requirements of the business.b. The Respondent needed to engage with and manage absent employees for reasons including but not limited to ensuring employee welfare. 29. The Tribunal will decide in particular: 29.1. was the treatment an appropriate and reasonably necessary way to achieve those aims[124]On the evidence before us we found that the Respondents needed to manage their staff levels to cover the Claimants’ duties by using agency workers, but we found that they had a pool of them on hand all the time and there was no evidence before us about the actual costs for their business. We found that the Respondent employed around 130 employees and in addition agency workers and had no difficulty in covering the duties of the Claimant when she was absent. By the time of dismissal, the Claimants statutory sick pay had ended and so we found that her absence wasn’t incurring any significant costs for the Respondent on the evidence before us.[125]We find it was not a proportionate means of achieving a legitimate aim i.e., to dismiss the Claimant to achieve this asserted legitimate aim of managing staff levels i.e. of achieving costs saving and managing staff levels and we find the pursued legitimate aim was disproportionate to dismissing the Claimant.[126]As to the asserted legitimate aim of 28.1. b above we found this a vague legitimate aim, and whilst we found that they needed to engage with her and manage her absence including but not limited to ensuring employee welfare we did not find that this meant they needed to dismiss her in all the circumstances of this case, and we did not find this to be a proportionate means of pursuing a legitimate aim by dismissing her. 29.2. could something less discriminatory have been done instead.[127]We found that something less discriminatory could have been done instead, which would have been to delay any dismissal and to wait instead for her physiotherapy treatment to conclude at very little cost to them. At this point her Statutory Sick Pay had ended, and her treatment was due to start only a few months hence from the point of dismissal, and she may then have been fit to return to work, with appropriate adjustments and after her treatment started to work. 29.3. how should the needs of the claimant and the respondent be balanced?[128]The Respondent has stated its legitimate aims as set out above, but these aims are not we find legitimate and proportionate balanced against the Claimants 29.4 Did the respondent know, or could it reasonably have been expected to know that the claimant had the disability? From what date?[129]We have found that the Respondent knew she had a back problem from the outset following the accident in 2015 and this was conceded by the Respondent i.e. that they had knowledge of her back problem throughout.[130]The claim for unfavourable treatment arising from disability in relation to her dismissal arising from her back problem therefore succeeds.[131]We found that the Respondents knew of her depression from the 1 March 2016 [P.301]. However, we found that this played no part in her dismissal and this claim for unfavourable treatment arising from her depression therefore fails. The Law - Failure to Make Reasonable Adjustments[132]The Equality Act 2010 provides as follows: - 6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability. ………………………………………………………. 20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it.[133]The guidance given in Environment Agency v Rowan [2008] IRLR 20, [2008] ICR 218 is to be applied, namely that in order to make a finding of failure to make reasonable adjustments there must be identification of:(a) the provision, criteria or practice applied by or on behalf of an employer; or(b) the physical feature of premises occupied by the employer;(c) the identity of non-disabled comparators (where appropriate); and(d) the nature and extent of the substantial disadvantage suffered by the claimant.[134]Laws LJ in Saunders added: ''the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot … make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP'.' Applying the Law to the Facts[135]We have noted Mr Menan’s reference to the case of Doran v Department for Work and Pensions EAT 0017/14 and his submission that the duty to make adjustments is not triggered until the Claimant has a date to return to work. However, this claim for reasonable adjustments does not concern the act of[136]In Doran the EAT accepted that the decision referred to in that case, which was the case of NCH Scotland v McHugh [2006] 12 WLUK 396, and which was relied upon by the Tribunal when makings its decision about the trigger point for the duty to make adjustments, was in fact an obiter (i.e. non-binding) comment so far as the trigger point for the duty to make reasonable adjustments was concerned.[137]We distinguish this case from Doran, as in this case the actual act of dismissal is not part of the claim for a failure to make adjustments but is instead about the failure to make adjustments up to the actual act of dismissing the Claimant but not including the act of dismissal.[138]In any event, in the alternative, whilst there was no indication of a date for a return to work in the OH report for the Claimant the OH Doctor had however indicated that she would be able to return with appropriate adjustments and workplace support and a meeting was arranged to discuss the report, but we found that no discussion whatsoever took place about the possibility of any adjustments with the Claimant at the final meeting with her following which they decided to dismiss her. Instead, we found they simply told her at the final meeting they had considered adjustments but did not say what those were that they had considered and then said there were none they could make. We did not find in this case, as in Doran, that the ‘ball was in the Claimant’s court’ and instead we found that having obtained the report from their OH Doctor specifically to decide if adjustments could be made the ball was now in the Respondents court prior to deciding to dismiss her as to whether they could make the adjustments to facilitate her return to work. In short, the duty to make adjustments had already been triggered prior to going off sick and was also triggered again during the meetings they had with her prior to dismissal.[139]We found that they didn’t in fact at any point consider making any reasonable adjustments when considering whether to dismiss her.[140]We also found that at the final meeting prior to dismissal that the Claimant made quite clear that she wanted to return to work but was now waiting for her physiotherapy treatment to start a few months hence. The Respondent then proceeded to dismiss her three days later without updating itself on whether such physiotherapy treatment may enable her to return to work in the near future. Whilst a failure to investigate further of itself is not an act of disability discrimination we found this telling evidence of the Respondents failure to consider reasonable adjustments up to the point it decided to dismiss her, and we found their breach of duty to make reasonable adjustments continued on until just prior to the point that they decided to dismiss her. Duty to Make Adjustments – when did the Duty Arise?[141]In this case having found that the duty to make adjustments first arose and was breached in late 2015, and then again arose in early January 2016 and was once again breached, with further failures to make adjustments as set out above at paragraph 110 onwards, then we found there was a series of breaches of the duty to make adjustments on a variety of dates over a period of eight years.[142]Having found that the breach of the duty arose from late 2015 onwards then the Respondents submissions on this point that there could have been no breach of the duty due to the Claimant being dismissed while she was off sick falls away. Burden of Proof[143]On the issue of a failure to make adjustments we reminded ourselves of the Burden of Proof provisions when making our findings of fact. In 'reasonable adjustments' cases the claimant is required, at the first stage: (a) to establish the provision, criterion or practice relied upon which in this case was having to carry out normal duties instead of being given light duties; and b) to demonstrate substantial disadvantage. The burden then shifts to the respondent to show that no adjustment or further adjustment should be made.[144]On the test on disadvantage we reminded ourselves that all we have to find is "whether the PCP has the effect of disadvantaging the disabled person more than trivially in comparison with others who do not have the disability” as per Sheikholeslami v Edinburgh University [2018] IRLR 1090. We find that it did disadvantage the Claimant more than trivially compared to others. Suffering back pain when carrying out your duties is we find more than a trivial effect compared to other employees who are not disabled.[145]We found that requiring the Claimant to carry out normal duties at different points throughout the eight-year period without consistent light duties was a substantial disadvantage to her in that it caused her discomfort in her lower back and compared to someone without the Claimants disability this was a substantial disadvantage.[146]The Claimant having proven the PCP was applied to her, as set out in our findings of fact above, and having proven substantial disadvantage, then the burden of proof shifted to the Respondent to show that no adjustment or further adjustment should be made. They asserted an adjustment was made and that they gave her light duties. We found that the duties they gave her did not consistently amount to light duties and even on the Respondents case as conceded by them she was at times lifting up to 15 kilos which we did not find amounted to avoiding heavy lifting and we found were not light duties. In any event the issue of standing frequently was we found made out by the Claimant and this was in contravention of her doctor’s sick note which recommended sitting duties [P.287]. We therefore found that the Respondents failed to discharge the burden of proof that they had made a reasonable adjustment by giving her light duties.[147]Judged objectively we found it was reasonable for the Respondents to give the Claimant light duties by giving her sitting duties that avoided lifting, [P.287], and avoiding heavy lifting [P.317]. No attempt was made to do so consistently, and we found that this amounted to a failure to make reasonable adjustments, and we find that the Respondent failed to discharge its duty to make reasonable adjustments for a period of eight years from late 2015 and thereafter on various dates up to the date of her dismissal.[148]No point was advanced by the Respondents that any failure to make reasonable adjustments could have only run up until her sick leave started. In any event even if such a point had been advanced, we find on the facts as found above that there was still a failure to make adjustments from 2016 to the date her sick leave started on the 1 August 2022. We find that this failure was then repeated when they met with her during her sick leave and prior to dismissal as set out above. Reasonable Adjustments (Equality Act 2010 sections 20 and 21) 31. Did the respondent know or could it reasonably have been expected to know that the claimant had the disability regarding her back? From what date?[149]The Respondents conceded that they knew she was disabled at all material times for the disability relating to her back. 32. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 32.1. In around January 2016 the respondent required the claimant to do normal duties in place of light duties?[150]We find that this PCP of requiring the Claimant to do normal duties was proven by the Claimant from January 2016 to the date of her dismissal, and that they did not allocate consistent light duties often and with regularity throughout this period. We find she frequently had to carry out normal duties, and so we find this PCP was established by the Claimant. 33. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that her back complaint meant that normal duties would cause back ache in lower back?[151]We found that it clearly put the Claimant at a disadvantage as it caused her lower back ache compared to someone without her disability when she carried out her duties. We found that the Claimant, compared to others without her disability, had to take painkillers and apply creams to her back to cope with her normal duties and so carried out her duties while in pain and discomfort. This did we find put the Claimant to a substantial disadvantage compared to someone without the Claimants disability and with find that this disadvantage was more than trivial. 34. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?[152]We found that the Respondent could have reasonably been expected to know that she was at the disadvantage. We found that she raised this issue on several occasions about her bad back including in both grievances, and in her appeals against the grievance outcomes, and in the form of sick, and fit notes from her Dr who recommended adjustments. In her evidence and on the facts as found by us we also found that she raised her concerns and the back pain she was suffering from verbally with Dawn West on a number of occasions, and we refer to paragraph 110 above where we set out when the Claimant either alerted the Respondent to her back problems or they themselves referred to it. 35. What steps could have been taken to avoid the disadvantage? The claimant suggests: 35.1. Kept the claimant on light duties.[153]We find that the Respondent could have made reasonable adjustments so that the Claimant was consistently on light duties where she was mostly sitting down and not standing for long periods of time or repeatedly weight bearing at a level of heavy lifting, and that they could have achieved this by a reallocation of duties so that she was consistently carrying out light duties. We heard no evidence that this was not possible and the Respondents case in any event was that up to the start of her sick leave on the 1 August 2023 that she was on light duties. We find she was not on consistent light duties. 36. Was it reasonable for the respondent to have to take those steps and when?[154]We find that it was reasonable to take those steps from late 2015 onwards and on the further dates indicated above at paragraph 110 where we find the Respondents were alerted throughout her employment to her need for light 37. Did the respondent fail to take those steps?[155]We find the Respondent failed to take those steps and the claim for a failure to make reasonable adjustments in relation to her disability of a back problem at the material time from 2015 to the date of her dismissal succeeds. THE ISSUE OF LIMITATION[156]Section 123 of the Equality Act 2010 provides as follows: - 123 Time limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Time limits 12. Were the claims under the Equality Act 2010 made within the time limit in the Equality Act 2010 section 123? The Tribunal will decide: 12.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?[157]Mr Menan conceded in submissions that to the extent that the PCP, i.e., the substantial disadvantage, is found to exist it is a continuing state of affairs up to the EDT, and there can be no time point. This is not a correct statement of the law on an omission to make reasonable adjustments. There can be no continuing state of affairs in relation to a failure to make reasonable adjustments such that it continued up to the date of dismissal. Instead, what the Respondent had to argue in the alternative was, if there was a breach of their section 6 duty under the Equality Act 2010 by a failure to act, then in accordance with s.123 (4) (a) and (b) of the Equality Act they must point to a date the breach took place i.e. when an act took place inconsistent with their duty or if not identify a reasonable time by which they ought to have complied with their duty. They did not run their defence on this basis.[158]In the absence of any submissions from the Respondent on limitation in accordance with s.123 (4) of the Equality Act 2010 we went on in any event to make findings on the evidence before us about when the duty to make adjustments was breached as set out at paragraph 110 above.[159]We found the failure to make the adjustments occurred in late 2015 in relation to the initial temporary adjustments, and by early January 2016 for the permanent recommended adjustment, and on those dates which we are set out at paragraph 110 onwards.[160]We find that the claim was not made to the Tribunal within three months of the acts to which the complaint relates. In relation to the breach of duty that occurred in late 2015 and early January 2016 the claim was presented approximately eight years out of time.[161]The further breaches of the duty to make adjustments in 2018, 2021, 2022 and 2023, as set out in paragraphs 110 above, were also presented out of time. The claims were not therefore made in time in relation to the claim for a failure to make reasonable adjustments. 12.2. If not, was there conduct extending over a period?[162]This was not applicable. 12.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?[163]This was not applicable. 12.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 12.4.1. Why were the complaints not made to the Tribunal in time? 12.4.2. In any event, is it just and equitable in all the circumstances to extend time?[164]No evidence was led by the Claimant, and no submissions were made about why the claims were not brought in time as this was not pleaded as an issue in the Respondents response. However, there was no evidence before us that the Claimant knew about limitation periods, nor was it put to her that she could have found out if she had tried to. In fact, we heard no submissions from either party on this issue of what the Claimant knew about limitation periods. The submissions by the Respondent on this issue only appeared in their written submissions.[165]All the relevant witnesses for the Respondent gave evidence without difficulty about the events over the eight years of the Claimants employment. There was no prejudice to the Respondents in allowing these claims to proceed out of time within this period which we considered was just and equitable. By contrast, the Claimant having established her claims on the facts for a failure to make reasonable adjustments, faced severe prejudice if we did not extend time for the presentation of her claim for a failure to make reasonable adjustments as she would then lose that claim. The prejudice to the Claimant was clearly huge whereas we could see no prejudice to the Respondent. We therefore concluded that it was just and equitable to extend time for the presentation of the claim for a failure to make reasonable adjustments over the material period until the date of the presentation of the claim. Unfair Dismissal
The Law
[166]S.98 of the Employment Rights Act 1996 provides as follows: 98 General(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.(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, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(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.(4) Where the employer has fulfilled the requirements 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.(5) Subsection (4) is subject to— (a) sections 98A to 107 of this Act, and (b) sections 152, 153, 238 and 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).[167]Before dismissing an employee for reasons of ill-health, it is well established law, that an employer should find out the current medical position. This will usually involve obtaining, with the employee's consent, a report from the employee's general practitioner and, if appropriate, his consultant. The tribunal must not to substitute its own answer to that question for that given by the employer. The question is ultimately managerial, rather than medical.[168]In this claim the Respondent [evidence of Sue Warn] specifically stated they would wait for her to see her specialist as this would in essence be helpful in deciding what her prognosis was. In the event the Respondent in this case went ahead on the basis of simply what the Claimant told them about her consultant had said without directly asking them what the prognosis was, and we note that this is a Claimant whose first language was not English.[169]It is also well-established law that the employer having properly informed themselves of the employee's state of health and the prognosis, should consider the requirements of his business, the employee's past sickness record and whether the employee could be offered an alternative position more suitable to his state of health.[170]The employer should also consider whether the employee should be regarded as disabled and, if so, whether any reasonable adjustments should be made for the employee. The employer should consult the employee and any representative before dismissing him.[171]Having properly informed itself of the position and consulted with the employee, the employer must decide what action to take. The central question is whether a reasonable employer would have waited longer to dismiss and, if so, how long.[172]The EAT in various cases has stated that whilst each case will turn on its facts, some factors which may be important include:(i) the nature of the illness;(ii) the likelihood of it recurring or some other illness arising;(iii) the length of the various absences and the spaces of good health between them;(iv) the need of the employer for the work done by the particular employee;(v) the impact of the absences on others who work with the employee;(vi) the adoption and the carrying out of the policy;(vii) the emphasis on a personal assessment in the ultimate decision and of course,(viii) the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee so that the employee realises that the point of no return, the moment when the decision was ultimately being made may be approaching.[173]The important point is that the employer's belief that it could not wait any longer must be a reasonable one in all the circumstances of the case. It is not enough that it is genuinely held. 13. Was the claimant dismissed?[174]This was not in dispute, and she was. 14. What was the reason or principal reason for dismissal?[175]This was not in dispute. The Respondent states the reason was capability (long term absence). 15. If the reason was capability, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: 15.1. The respondent genuinely believed the claimant was no longer capable of performing their duties.[176]We find that the Respondent did not genuinely believe she was no longer capable of performing her duties without first obtaining the specialist input, particularly when they had agreed to defer getting the OH report until she had seen her specialist – [WS of Sue Warn as set out above where she refers to this assisting them in making decisions about the Claimant going forward].[177]Instead of obtaining this specialist input at the final meeting about the issue of her seeing her specialist [p.615]] and what their opinion was instead they simply asked the Claimant in a general way ‘if there had been any developments with her specialist’ before they dismissed her, and then went ahead and dismissed her anyway without getting any further input from specialist, i.e., as to any adjustments they may be able to make to her duties, or in relation to timescales and prognosis in relation to her return to work. This finding is made considering the fact they had employed her while she had a bad back, which we find they knew about, and which included often carrying out normal duties for over eight years on what they deemed light duties. We do not find in these circumstances they genuinely believed she was no longer capable of performing her duties. 15.2. The respondent adequately consulted the claimant.[178]We did not find they adequately consulted with the Claimant on what could be done to avoid dismissal in any meaningful way i.e. by asking her what duties do you think we could give you? Despite referring to it in the dismissal letter there was no evidence before us that they discussed alternative duties with her at any point and what she thought they could do by way of offering amended duties in the workplace. Instead, they simply told her in the letter of dismissal there weren’t any other duties, even though for the previous eight years she had been doing what they asserted were light duties, and yet now they said they had none. 15.3. The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;[179]Whilst they did seek an OH report, in that report [p599] they were told she was covered by the EQA i.e. disabled, and yet at this point, despite previously saying they needed the specialist input from her specialist before deciding to dismiss her, they still took no further steps to get input from her specialist at all, and instead asked only one question of her about what her specialist had said. The report from OH was dated the 23 June 2023 and they dismissed her without further input from her specialist on 18 August 2023 following the meeting on the 15 August 2023. This was not a reasonable investigation in these circumstances within the reasonable band of investigations of any other employer, and where they had said they needed the input from the Claimants own specialist, but thereafter didn’t communicate with them directly or via their OH doctor whatsoever.[180]Having found that they failed to carry out a reasonable investigation within a reasonable band of investigations of any other employer then we find that the dismissal was unfair, and the claim succeeds. 15.4 Whether the respondent could reasonably be expected to wait longer before dismissing the claimant;[181]Having found that the dismissal was unfair on procedural grounds we turn to the issue of whether the Respondent could have reasonably been expected to wait any longer before dismissing her. The OH Doctor had stated that ‘I am hopeful with appropriate medical and workplace support Mrs M will be able to return to her previous role, albeit some ongoing adjustments may be required. This will depend on symptomatic improvement’. We find that it would have been reasonable for the Respondents within a reasonable band of investigations and within a reasonable band of responses of any other employer to wait longer before dismissing the Claimant and in particular to wait for her physiotherapy treatment to start and conclude before deciding whether to dismiss her. 15.5. Dismissal was within the range of reasonable responses.[182]On the issue of whether even had a fair procedure and investigation been followed the Claimant may have been fairly dismissed at some future point, i.e. the Polkey argument, we specifically stated that this issue would be dealt with as part of the remedy hearing i.e. whether should there be a reduction based on Polkey, and so this issue of whether any dismissal would have occurred in any event at a future date will be dealt with in our remedy judgment at the remedy hearing.[183]The issue of any alleged contributory fault by the Claimant in not starting her physiotherapy treatment earlier will also be dealt with in our remedy judgment. Approved by: