Mrs S Endsor v University Hospitals of Derby and Burton NHS Foundation Trust: 6010801/2024
EMPLOYMENT TRIBUNALS
Case No 6010801/2024
Between
Mrs S EndsorClaimantUniversity Hospitals of Derby and Burton NHS Foundation TrustRespondent
Before
Employment Judge Victoria ButlerIn person for claimantMs S Souter (instructed by Counsel) for respondentDate 23 July 2026
JUDGMENT
[1]The claim of discrimination arising from disability fails and is dismissed.[2]The claim of failure to make reasonable adjustments fails and is dismissed.[3]The claim of unfair dismissal succeeds, and the Respondent is ordered to pay the Claimant the following amounts: Basic award: £2,664 Loss of statutory rights: £500 Compensatory award: £6,410.25 (loss of earnings and pension loss for the period October 2024 – March 2025) Total: £9,574.25 JUDGMENT and summary reasons having been sent to the parties on 27 May 2026 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Procedure Rules 2024, the following reasons are provided:
REASONS
[1]The Claimant presented her first claim to the Tribunal on 6 March 2024 and her second claim on 14 November 2024. She was employed by the Respondent as a Referral to Treatment (“RTT”) Validator until she was dismissed following a period of long-term absence. She brings claims of unfair dismissal, failure to make reasonable adjustments and discrimination arising from disability.[2]The disabilities relied on are Type 1 diabetes, fibromyalgia, Hashimoto’s disease and pernicious anaemia. The Respondent concedes that the Claimant was disabled for the purposes of the Equality Act 2020 (“EQA”) at the material time by virtue of all four impairments. However, it denies knowledge at the material time.
The hearing
[3]The hearing was listed for six days. I used the first morning to read in and the evidence concluded on the fourth day. I used the fifth day to deliberate and gave judgment on the sixth.[4]The parties relied on recordings of Teams meetings as evidence absent a transcript. They were short in duration, so I agreed to view and consider them.
The issues
[5]The issues agreed between the parties for determination are appended to this judgment.
The evidence
[6]I heard evidence from the Claimant. She also produced a witness statement from Ms M Wicks which was in essence a character statement. It was admitted unchallenged by the Respondent because it did not assist in determining the issues.[7]The Claimant’s husband produced a witness statement which was also admitted unchallenged save for the Respondent’s position that the process it adopted was fair and there was no inappropriate behaviour by its solicitors.[8]For the Respondent I heard evidence from: Mr G Hodgkinson, RTT Team Leader; and Ms G Tice, Head of Patient Access.[9]I found all the witnesses to be entirely credible. This was a case where the facts were agreed. The disagreement was whether the application of the Respondent’s policies was unfair and discriminatory.[10]I made my findings of fact based on the material before me considering the contemporaneous documents where they existed and the conduct of those concerned at the time. I resolved any conflicts of evidence on the balance of probabilities. The facts
Background
[11]The Respondent is a University Hospital employing approximately 14,500 people across five hospitals and other community sites. The Claimant was employed at the Royal Derby Hospital.[12]The Respondent has a Health, Wellbeing and Attendance policy which has accompanying guidance (pages 246 – 254). The policy provides that supportive health and wellbeing discussions/meetings should take place and the formal process should be considered: “where support mechanisms have been unsuccessful in improving attendance, there is a continued pattern of absence and/or in cases of a prolonged period of absence due to ill health where there is no indication of a return to work...... The focus of the formal health and well-being meetings will be to give a colleague further support to facilitate their continued attendance at work or in cases of a prolonged period of absence due to ill health help to facilitate a return to work”… “During the meeting that will be a review of previously identified support measures and initiatives as outlined in Section 2 and consideration whether any alternative and/or additional support and/or adjustments are appropriate. Account will also be taken of any Occupational Health advice received or consideration if a re-referral to Occupational Health is required to obtain up to date medical advice…..”.. “In certain circumstances a case conference may take place. A case conference usually consists of a face-to-face discussion between an Occupational Health Professional, the colleague, the colleague’s representative (should they wish to invite one); the line manager and a people services representative. The purpose of a case conference is to discuss any health and well-being concerns related to a colleague. By discussing the employment circumstances and medical background of the colleague and the Occupational Health recommendations, a case conference aims to reach a common understanding of the issues and to agree a way forward with specific actions, e.g. another appointment at a later date, deciding to ask for consent for GP reports. It may also be useful where further clarification or discussion regarding Occupational Health advice is required. When to call a case conference will vary greatly on a case by case basis. However, in all cases a referral to Occupational Health will have been actioned and an occupational health assessment will have taken place……” Final Review Meeting “……. In reaching a decision about the appropriate outcome of the meeting consideration should be given to the content and outcomes of the supportive health and well-being discussions and formal management. Before termination of employment is considered all other options must have been explored and exhausted……..” “Appeals Colleagues may appeal against the outcome of the final review meeting. The appeal should be made in writing, stating the full grounds of appeal, to the person identified in the decision letter within 14 calendar days of the date on which the decision letter was sent….”[13]The policy also has sickness absence pay extension guidelines which provide that any extension beyond the normal sick pay allowance (six months’ full pay and six months’ half pay) remains discretionary and is not a contractual right. It provides that the Respondent will adopt a person-centred approach when deciding whether to extend sick pay. The criterion that the Claimant relies on is “where evidence is obtained that an extension can be proved to materially support a return and/or assist recovery”. The RTT Validation Team[14]The Claimant commenced employment with the Respondent on 2 February 2015 as a RTT Validator. For context and as explained by Ms Tice, at the material time the team comprised circa twenty-one team members and was under significant operational pressure. The Trust was in a tier one position for elective performance and cancer, and the RTT performance was being monitored by NHS England, therefore putting a lot of focus on validation performance. The team was already struggling thus placing a considerable burden on the remaining staff who were working additional hours to maintain service delivery. The Claimant[15]On application for the RTT role, the Claimant declared that she was diabetic (page 287). Her colleagues, including Mr Hodgkinson who became her line manager in February 2023, also became aware that she has fibromyalgia and thyroid disease. The Claimant undertook her training at home but thereafter worked in the office save a period of shielding during Covid. All team members who did overtime were able to do this from home if they chose, something the Claimant often did.[16]The RTT Validator role itself was demanding, requiring sustained concentration and the ability to follow complex timelines. The Claimant was a valued member of the team and there were no concerns with her performance. The Claimant’s absence[17]The Claimant’s absence began on 15 May 2023 due to neck ache/pain and general tiredness. Thereafter, the reason for the Claimant’s absence was recorded by the Respondent as “ongoing fatigue, musculoskeletal pain and stiffness” (pages 353 – 354) albeit the medical certificates officially recorded “chronic fatigue and pain” (unnumbered). The Claimant was initially in receipt of full sick pay.[18]In summary, the Claimant was symptomatic and initially thought she was suffering a flare up of fibromyalgia or possible arthritis. Thereafter, she had a prolonged period of seeking a diagnosis, exacerbated by the length of time it was taken to be seen by the NHS which the Respondent was unable to expedite for her. To move things forward, the Claimant paid privately for treatment and diagnosis which proved fruitful and she was finally diagnosed with pernicious anaemia in October 2024.[19]The Claimant and Mr Hodgkinson kept in touch during her absence. The Claimant always kept him up to date on progress and he was supportive throughout. The Claimant takes no issue with the Respondent in this regard.[20]On 27 June 2023, the Claimant was referred to Occupation Health and attended an appointment on 18 August 2023. The physician reported that she had existing long-term health conditions which are usually stable and well controlled with medication and was awaiting a diagnosis for long term back pain. They were unable to propose a timescale for a return to work but considered that she would be able to resume her usual duties once diagnosed (pages 298 – 302).[21]On 15 August 2023, Mr Hodkinson reminded the Claimant that her sick pay would be reduced to half pay after six months (page 357).[22]On 22 February 2024, the Claimant had a formal Health and Wellbeing meeting with Mr Hodgkinson and Ms Lowther (HR). During the meeting, the Claimant enquired about the possibility of extending her sick pay and Mr Hodgkinson committed to finding out if it was possible (page 360). It was agreed that they would meet again in a further two to three weeks (page 303).[23]On 23 February 2024, Mr Hodgkinson e-mailed Ms Rowe of the Resondent and explained the Claimant’s absence and her strive for a diagnosis in detail. He explained: “Her sick pay entitlement ends 16/5/23. Steph has a young family and a mortgage and has really tried to live on half pay but is struggling. Both Steph and I feel like the long waits to be seen in multiple specialities has contributed massively to having such a long time away from work. Being given an extension of sick pay would help take one thing off her mind, and without financial worries, we feel this will contribute towards Steph getting the diagnosis and treatment that she requires ……” He also confirmed that the relevant budget holder supported the request (pages 350 – 352).[24]On 15 April 2024, the Claimant attended a further Health and Wellbeing meeting with Mr Hodgkinson and Ms Lowther during which it was agreed that she would be referred to Occupational Health again. The Claimant was also advised that if her absence continued and there was no foreseeable return to work, she may be referred for a Final Review meeting (page 304).[25]On 15 April 2024, the Claimant made a formal request for an extension to her sick pay explaining: “However, I have recently been informed that my sick pay will be reduced to nil due in May 24. This reduction in income will make it extremely difficult for me to afford the nursery fees, forcing me to withdraw my child from the nursery. This will negatively impact both my recovery and my ability to return to work in a timely manner. Amongst the previously mentioned in my first e-mail request. I kindly request that you consider extending my sick pay to allow me to continue to afford the necessary childcare for my little one. This extension would not only support my recovery but also ensure that my child's development is not disrupted and a nursery place is held. This stability provided by the nursery has been crucial for my well-being, and I am confident that maintaining this arrangement will aid my return to work in the best possible condition, once a diagnosis is received” (page 314 – 315).[26]On 17 April 2024, the Claimant was referred to Occupational Health. The subsequent report confirmed that the Claimant was suffering with an undiagnosed condition, and her fatigue may be worse. The clinician went on to say: “I am unable to offer any opinion on long-term outlook or what further treatment may help her improve her symptoms. In my opinion Stephanie is highly likely to be considered as having a long-term, disabling, condition under the Equality Act 2010 as it can have a substantial adverse impact on her ability to carry out day-to-day activities and has lasted for over 12 months. The employee should not be treated less favourably because of the condition. Please make adjustments to absence triggers: disregard disability related sickness absence and allow flexibility in the triggers leading to the various stages of attendance management: as this can help to ensure an employee is not put at a substantial disadvantage by any absence management policy” (pages 329 – 333).[27]On 1 May 2024, the Claimant chased her application for an extension of sick pay and provided in-depth reasons for her request which would allow her to focus on her recovery and child’s well-being. She explained that an extension would be beneficial to reduce stress, continue care for her child, allow time for diagnosis and treatment and provide for additional support such as osteopath treatment and private tests. She summarised that it would “materially support my assisted recovery by reducing financial stress, ensuring my child's continued care and allowing me the time and resources needed to focus on my health and well-being” (pages 310 – 311).[28]On 22 May 2024, the Respondent rejected the Claimant’s request for an extension explaining that her circumstances did not meet the criteria set out in Agenda for Change (page 307).[29]On 23 May 2024, the Claimant challenged the Respondent’s decision to refuse the extension, citing her awareness of other Trusts being more flexible and the impact of NHS delays on her diagnosis and potential treatment (page 307).[30]On 17 June 2024, the Claimant was invited to a Formal Review meeting and advised that a possible outcome was the termination of her employment (page 375).[31]On 17 June 2024, the Claimant had a private consultation with Dr Klein who suspected she had a B12 deficiency. He suggested a three-month course of B12 injections and said: “if you are better in three months then we will know for certain that you have B12 deficiency” (pages 377 – 379).[32]On 18 June 2024, the Respondent responded to the Claimant’s in-depth reasons for an extension of sick pay, explaining why she did not meet the criteria (pages 305 – 306). The Final Review meetings[33]The first Final Review meeting took place on 21 June 2024, chaired by Ms Tice. Mr Hodgkinson attended to present the management case, and the Ms Tice was supported by Mr Lowther and Mr McCabe from People Services.[34]Mr Hodgkinson was fully supportive of further assisting the Claimant. The panel also had sight of Dr Klein’s letter. The Claimant explained Dr Klein’s potential diagnosis, that the B12 injections had been ordered, she expected to feel better within three to six months but was hoping for improvement in three, and that she wanted to return to work when she was well. She also said: “either way it’s three months” and “I’m holding all my hopes up on being great in three months”. Within the meeting, the Claimant also raised the impact of NHS treatment delays on her return to work and that the absence management process did not take that into account.[35]Ms Tice adjourned the meeting to consider her decision. Her conclusion was to adjourn the Final Review meeting for three months allowing time for the injections to take effect. She confirmed she would arrange a further Final Review at the end of September/November, but this was a slip of the tongue and she meant September/October. The Claimant was also advised verbally that she had the right to appeal the decision. The outcome of the meeting was confirmed in a letter dated 28 June 2024 (pages 380 – 381).[36]On 4 October 2024, the Claimant was invited to the reconvened Final Review meeting on 14 October 2024. She was advised again that a possible outcome was the termination of her employment (page 385).[37]On 10 October 2024, the Claimant had a further appointment with Dr Klein who formally diagnosed the Claimant with pernicious anaemia, and his letter explained the following: “In terms of how you are feeling, things are getting somewhat better and you have more bouts of energy in waves. You have still fatigue but your back stiffness has changed. You felt last time that your back was solid but now there are only specific areas that are painful but less stiff. You are not feeling feint but still feel weak. The pins and needles in your arms are much better and are only very rare now. The dissociation between your brain and muscles is less frequent. You are having B12 injections every other day and you don't really notice any difference before or after an injection. ………You are still suffering with cognitive issues which are preventing you from working and I expect these will slowly improve over the next few months……..” (pages 392 – 393).[38]Ms Tice chaired the meeting again, and the Claimant gave an update on her treatment. The Claimant referred to pre-prepared notes during the meeting because her brain was going “in and out half the time”. She explained that she was improving albeit more slowly than she would have liked and her cognitive symptoms were likely to be better within the next couple of months. Her sick note expired in mid-November 2024, and she could potentially return to work then on a phased basis working from home, describing this as ‘do-able’. If she could start off with updating her training, she could definitely return. Her request to work from home was to minimise fatigue from travel - she was only able to do the school run at that point and was not socialising much. Her thoughts were that she could do five to six hours a day to start off with and would like to come into the office albeit could not commit to how frequently.[39]Ms Tice adjourned before making her decision but ultimately took the decision to dismiss the Claimant. She had in mind the following in arriving at her decision: the Claimant has been off sick since May 2023; her perception that the Claimant’s health was not likely to significantly improve enough to render regular attendance in her substantive role or any other role: her perception of the likelihood of an alternative suitable post becoming available in a reasonable period of time: the support and reasonable adjustments she had already received from the Respondent: additional reasonable adjustments that it could make; and her perception of the likelihood of these improving the Claimant’s attendance in the future.[40]Ms Tice was of the view that there was no medical evidence to support the Claimant’s assertion that she could return to work in mid-November. Further, if the Claimant was unable to manage regular periods of work the impact on the wider team would have continued. Ms Tice was also concerned that if the Claimant returned to work too soon, it could result in a serious setback to her recovery.[41]Ms Tice did not put her mind to the question of whether the Claimant was a disabled person by reason of pernicious anaemia nor did she take steps to understand what alternative employment was available, if any. Furthermore, she did not consider the adjustments proposed by the Claimant, namely a phased return and working from home because she considered the Claimant too ill to return at all in any capacity.[42]Ms Tice confirmed her decision to dismiss the Claimant and confirmed her decision in a letter dated 23 October 2024 and advised her of the right to appeal.[43]The Claimant appealed the decision on 1 November 2024 (page 590) which was acknowledged on 27 November 2024. However, the Respondent failed to arrange a meeting or contact the Claimant until 23 July 2025 when it invited her to attend an appeal on 4 August 2025, some ten months later. Ultimately, the Claimant declined to attend given the delay, she had already issued proceedings, secured new employment and felt that a meaningful appeal could take place.[44]The Claimant secured alternative employment at Moorfields Eye Hospital in April 2025 working as bank staff in a role two banks higher than her role at the Respondent. She earns £15.27 per hour and works approximately 16 hours per week. She explained that she can work more hours but chooses not to - she felt pushed off a cliff edge after her dismissal and was taking antidepressants, as a family they can support her working less hours and she was spending endless hours preparing for this case.
The law
[45]Section 98 of the Employment Rights Act 1996 provides: . “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (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. ……… (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.”[46]Section 15 of the Equality Act 2010 (“EQA”) provides: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if – (a) A treats B unfavourably because of something arises in consequences of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Sub-Section (1) does not apply if A shows that A did not now, and could not reasonably have been expected to know, that B had the disability.”[47]Sections 20 of the EQA provides: “(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.” …….[48]Section 136(2) EQA provides: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[49]I was referred to the following cases: K Spencer v Paragon Wallpapers Limited [1976] IRLR 373 EAT: Pnaiser v NHS England and another [2016] ICR 305: Wilson v Post Office [2000] EWCA Civ 3036: Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] UKEAT 0755/02/1403: O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145: Spencer v University Hospitals Birmingham NHS Foundation Trust (1301253/2018); and Kitching v University Hospitals of Morecombe Bay NHS Trust (1301253/2018). Submissions[50]Both parties provided oral submissions, and I have had regard to both in arriving at my conclusions, even where there is no specific reference to them. Conclusions Unfair dismissal
Conclusions
[51]The Claimant says that her dismissal was unfair. When she told the Respondent she could come back to work after the expiry of her fit note on a phased basis working from home, the Respondent failed to re-refer her to Occupational Health and/or have a case conference with Occupational Health or discuss alternative employment/redeployment. Further, the Respondent failed to deal with her appeal.[52]The Respondent relies on Dr Klein’s report which says that the Claimant’s cognitive function would improve over the coming months alongside the Claimant’s comments in the Final Review meeting that she would be much better in January 2025. Considering Dr Klein’s letter, it did not need any further medical information, and the Claimant would not have been fit enough for alternative roles either. At the point of dismissal, the Claimant had already been absent for seventeen months and it would not have been reasonable to wait any longer before dismissing her. Procedure[53]The Respondent agreed that its failure to action an appeal in a reasonable timescale was unacceptable. The ACAS Code of Practice does not apply to capability dismissals, but the general principles of reasonableness do.[54]The Claimant’s position was that she would be able to return to work after four weeks in some capacity and was denied the opportunity to make further submissions about any improvement to her health or provide any further medical evidence about her prognosis at an appeal hearing. By the time the Respondent had offered her an appeal on 4 August 2025, she had already secured alternative employment and issued these proceedings. It was not unreasonable of the Claimant to decline engagement with an appeal at that stage because of her view that it would not be meaningful.[55]The Respondent submitted that the onus was on the Claimant to update the Respondent on her progress whilst the appeal process was ongoing. However, I reject that submission. She had set out her grounds of appeal clearly including her view that she was fit to return to work in some capacity on expiry of her sick note.[56]On the facts of this case, I am satisfied that the failure to hold an appeal within a reasonable timescale rendered the dismissal procedurally unfair. The dismissal[57]The parties agree that the Claimant was dismissed and the reason for dismissal was capability. The Claimant had been absent from work for seventeen months the Respondent took the view that she was not able to return for another three months and dismissed her.[58]In determining whether the Claimant’s dismissal was fair or otherwise I have had regard to the following: whether the Respondent had a genuine belief that illhealth was the reason for dismissal: it had reasonable grounds for its belief: it carried out a reasonable investigation: it ascertained the up-to-date medical position: it consulted with the Claimant; and it considered the availability of alternative employment.[59]I am satisfied that the Respondent had a genuine belief that ill health was the reason for dismissal and it had reasonable grounds for that the belief. The Claimant had been absent for seventeen months and finally received a diagnosis of pernicious anaemia in October 2024. The Respondent received a copy of Dr Klein’s report with the diagnosis and took the decision to dismiss based on its contents.[60]More generally, there is no criticism by the Claimant about the Respondent’s treatment and consultation of her up to the point of dismissal (save the failure to extend her sick pay which I address later). Mr Hodgkinson was fully supportive of her and regularly kept in touch. Ms Tice acted reasonably in postponing the Final Review meeting in June 2024 for a further three months.[61]The key issue for determination is whether it was reasonable for the Respondent to solely rely on Dr Klein’s report and statement “you are still suffering with cognitive issues which are preventing you from working and I expect that these will slowly improve over the next few months”. It took this as a definitive statement of the Claimant’s incapacity to work on any basis as all. However, the report did not address the critical question of the Claimant’s ability to work whether on a phased basis, with adjustments, or in an alternative role.[62]At the October 2024 Final Review meeting, the Claimant told Ms Tice that she thought she could return to work in mid-November on a phased basis working from home. Her suggestion was to start with refresher training which was mandatory and would be a necessary part of her return to work in any event. Whilst her position was somewhat inconsistent with Mr Klein’s report it was not wholly inconsistent. Dr Klein remarked on a slow improvement over a few months and her proposed return to work was one month after her consultation allowing time for further improvement. The Respondent failed to question the Claimant about the inconsistency but more importantly, failed to seek any medical evidence about any capacity within which the Claimant could return considering her proposal. This was contrary to the policy guidance which provides all other options must be explored and exhausted before termination of employment.[63]I do not criticise the Respondent at all for its concerns about the Claimant’s recovery being hampered if she returned too soon but given its size and resources it was unreasonable not to re-refer her to Occupational Health, hold a case review to resolve the inconsistency or ask further questions of Dr Klein. The Respondent submitted that there was no medical evidence that the Claimant could return to work, but no medical practitioner was asked the question or what adjustments could be put in place to facilitate a return.[64]I have had regard to the Respondent’s position that it was not reasonable to wait any longer given the Claimant had already been absent for seventeen months. However, given the end was potentially in sight it was unreasonable not to take steps to explore a return given the Claimant’s position that a return in four weeks was ‘do-able’. The Respondent unilaterally took the view that it was not. Dr Klein’s report was a diagnosis and prognosis at the point of consultation rather than an assessment of the Claimant’s ability to return to work. The Claimant was criticised for not self-referring to Occupational Health but having told the Respondent she thought she could come back in four weeks, the onus was on it to explore this further, not for the Claimant to prove it.[65]The Respondent asserted throughout that the Claimant had not provided a definitive return to work date. However, it was unreasonable to discard her view that she could return on expiry of her sick note without obtaining further evidence. As such, it failed to ascertain the up-to-date medical position on her ability to return to work in some capacity.[66]The Respondent failed to enquire about alternative employment given its stance that the Claimant was not fit to work in any capacity. This was unreasonable. Whilst the Respondent considered she was not cognitively fit for the FTT role it did not explore whether she cognitively fit for other available roles even on an interim basis.[67]For these reasons, the decision to dismiss the Claimant fell outside the range of reasonable responses and her claim of unfair dismissal succeeds. Knowledge of disability[68]The Respondent denies it knew that the Claimant was a disabled person at the material time. However, I am satisfied that it should have known given Occupational Health’s definitive advice in April 2024 that she was. The Respondent’s witnesses gave evidence that this statement was regarding her diabetes, thyroid disease and fibromyalgia but I am satisfied their understanding was incorrect because the report was obtained specifically in relation to her current absence.[69]The Claimant's impairment was undiagnosed in April 2024, but the effects of the impairment certainly met the test of disability. The Claimant says that the Respondent had knowledge or ought to have had knowledge in June 2024, but in my view, nothing turns on whether it was April or June 2024. The impairment was diagnosed as pernicious anaemia at the point of dismissal. Discrimination arising from disability The ‘something arising’[70]The ‘something arising’ relied by the claimant is her absence. The Respondent does not dispute that her absence arose in consequence of disability, and I am satisfied that it did too. The less favourable treatment[71]The Claimant alleges that the Respondent failed to apply fair processes to her, disregarded her and the letter from Dr Klein, disregarded Occupational Health’s advice regarding adjustments, failed to discuss alternative roles and failed to hear her appeal. I deal with each allegation in turn. Fair processes/failure to discuss alternative roles/failure to hear the appeal[72]The allegation of ‘failure to apply fair processes’ is an ambiguous allegation. However, the Respondent clearly applied its Health, Wellbeing and Attendance Policy to the Claimant, which was the applicable policy, so no unfavourable treatment arises in that regard.[73]There is no criticism by the Claimant of the Respondent’s treatment of her under it until the point of dismissal (save the failure to extend sick pay which falls under the failure to make reasonable adjustments claim).[74]The major flaws in the application of the process were the failure to obtain medical evidence on her ability to return to work, failure to consider alternative employment and the delay in arranging an appeal. I am satisfied that these failures amount to unfavourable treatment because they disadvantaged the Claimant. If the Respondent had obtained further medical opinion and/or discussed alternative roles she may not have been dismissed. If it had heard her appeal, she may have been reinstated.[75]However, I am satisfied that the Respondent’s treatment was not caused by the Claimant’s absence. Whilst the process was instigated because of it, any unfairness in its application arose from the Respondent’s handling of the process and its assessment of her capability for work based on Dr Klein’s report alone, rather than because of the absence itself. The Respondent’s reliance and interpretation of Dr Klein’s report was the reason it did not obtain any further medical evidence, and it failed to discuss alternative roles with the Claimant because it considered her too unwell to return to work in any capacity following that report. Whilst I have found the Respondent’s assessment of the Claimant’s capability to be unreasonable for the purposes of the unfair dismissal claim, I am satisfied that the cause of the treatment was the Respondent’s evaluation of her fitness for work and was not because of the Claimant’s absence itself.[76]The failure to arrange an appeal in a reasonable timeframe was because of poor management and administrative failure and not the Claimant’s absence.[77]For these reasons, I am satisfied that there is no causative link between the Claimant’s absence and how the Respondent applied its process. Disregard of Dr Klein’s report and the Claimant[78]I am satisfied that the Respondent did not disregard Dr Klein’s report because it relied on the contents as a reason to dismiss her. As such, there was no unfavourable treatment.[79]I am also satisfied that the Respondent did not disregard the Claimant. The Respondent gave her full support during her absence and considered her views at the June 2024 Final Review meetings which is why it was postponed, allowing for treatment to take effect. The Respondent considered the Claimant’s views again at the October 2024 Final Review but preferred to rely on its interpretation of Dr Kleins’ report and its assessment that she would not be able to return to work in mid-November. Given the Claimant was not disregarded, there was no unfavourable treatment. Disregard of Occupational Health advice[80]I am satisfied that the Respondent disregarded Occupational Health’s advice not to adjust the absence management process because the Health Wellbeing and Attendance Policy did not permit those adjustments. There are no set trigger points, and all absence was recorded in the same way. As such, I am satisfied that this was not unfavourable treatment. Even if it was unfavourable treatment, the cause of the treatment was the terms of the policy and not because of the Claimant’s absence.[81]For these reasons, the claim of discrimination arising from disability fails. Reasonable adjustments[82]The Claimant relies on two PCPs – the application of the Health Wellbeing and Attendance Policy and Guidance (“PCP 1”) and its sick pay policy of paying twelve months’ sick pay and not extending it (“PCP 2”). The Respondent concedes they amount to PCPs. PCP1[83]The Claimant says that PCP1 placed her at a substantial disadvantage in that recording absences as ‘sickness’ rather than ‘disability-related absence’ disproportionately penalised her, unfairly triggering absence management processes and dismissal.[84]I am satisfied that PCP1 did not put the Claimant at a substantial disadvantage compared with non-disabled persons. In principle, I accept that disabled persons are more likely to have more sickness absence than non-disabled persons. However, there is no provision for recording disability related absence differently to sickness absence in the Respondent’s policy. Rather, at the time, all long-term absence was treated in the same way.[85]Importantly, there are no significant trigger points within the policy but rather an assessment of individual circumstances so all employees, disabled and nondisabled, are treated uniquely. A Final Review is not convened until the Respondent considers there is no indication of a return-to-work following consultation with the employee. Indeed, the Claimant herself conceded that she met the trigger point for a Final Review in June 2024.[86]Furthermore, I am satisfied that the policy was apt to be applied flexibly, thus advantageously, demonstrated by the Respondent’s decision to adjourn the June 2024 Final Review allowing time for the Claimant’s health to improve. Whilst the Respondent dismissed the Claimant before all other options were explored and exhausted contrary to the policy, that relates to the way the policy was applied rather than the provisions of the policy itself.[87]Accordingly, I am satisfied that the policy did not put the Claimant at a significant disadvantage compared to non-disabled persons by disproportionately penalising her nor was the absence process unfairly triggered leading to her dismissal. It follows that the duty to make reasonable adjustments did not arise. PCP2[88]I am satisfied that PCP 2 did not put the Claimant at a disadvantage compared with non-disabled employees simply because non-disabled employees would be equally disadvantaged by a reduction from full pay to half pay then to nil pay. Further, this is not a case where the Respondent’s failure to make adjustments was preventing the Claimant from returning to work. Even if she was put to a substantial disadvantage, I have had regard to the case law on this point which has established that there is no obligation on employers to extend sick pay except in exceptional cases and I am satisfied that no exceptional circumstances arose in this case. Moreover, the Respondent has criteria under which sick pay can be extended permitting flexibility in the application of the policy. It applied that criteria to the Claimant but determined she did not meet it.[89]I am also satisfied that the Respondent’s decision not to extend the Claimant’s sick pay did not put her at a substantial disadvantage compared to non-disabled employees. The decision to extend sick pay is discretionary and based on a ‘person-centred approach’ subject to an employee meeting certain criterion. The approach does not differentiate between disabled and on-disabled employees. The Respondent applied the criteria to the Claimant and concluded that she was not eligible for an extension which it was entitled to conclude given the discretionary nature of the policy. If a non-disabled person did not meet the criteria, they too would have had their request for an extension denied and suffer the same disadvantage. Conversely, other disabled and non-disabled employees may well meet the criteria.[90]For these reasons, the claim of failure to make reasonable adjustments fails. Remedy for unfair dismissal[91]The Respondent submitted the Claimant had contributed to her dismissal by not chasing the appeal. I disagree. The Claimant appealed setting out her grounds in detail. The ball was in the Respondent’s court entirely to progress matters.[92]The Respondent also submitted that a Polkey deduction should apply because the Claimant would have been dismissed in any event by the New Year. In support, it relies on the fact that she did not commence her new employment until April 2025. I reject that submission because the Claimant began the recruitment process for her current role in December 2024 after she was headhunted so was clearly well enough in her view to return to work. Furthermore, Dr Klein’s report indicated that her cognitive function would have improved by then.[93]I am satisfied that the Claimant mitigated her loss. However, I do not award losses beyond the commencement her new role. It is two bands higher than that at the Respondent and she chooses to work fewer hours despite them being available.[94]The Claimant was 36 years old at the date of dismissal with nine years’ complete service. Her gross pay was £296 per week.[95]Accordingly, I make the following awards: Basic award: £2,664 Loss of statutory rights: £500 Compensatory award: £6,410.25 (representing the period October 2024 – March 2025 £6,135.70 and pension loss of £274.55) Total: £9,574.25 Approved by: