Mr G Westwell v East of England Ambulance Service NHS Foundation Trust: 6018814/2024

EMPLOYMENT TRIBUNALS

Case No 6018814/2024

Between

Mr G WestwellClaimant

East of England Ambulance Service NHS Foundation TrustRespondent

Before

Employment Judge Price, R Clifton, B Von-Maydell-Koch

In person for claimant

Ms C Page (instructed by Counsel) for respondent

Date 26 February 2026

[1]The claimant has various disabilities which were agreed by the respondent. At the outset of the hearing any necessary reasonable adjustments were explored with the claimant. He wanted to have regular breaks, which was agreed to. The claimant also wanted to take pre-written notes into the witness box to help him answer questions. This was objected to by the respondent. It was explained to the claimant that this would not ordinarily be allowed as it would be perceived as unfair to the respondent. The claimant wanted time to take some advice. He was given that time. Upon his return to the tribunal he said he no longer pursued the request for that adjustment.

[2]The claimant also at various points explained to the tribunal that he found giving evidence and making submissions very difficult. The claimant was given time to consider his submissions and formulate them. He was also given additional Case No: 6018814/2024 2 time after hearing the respondent’s submissions, so he could sit and think about what he wanted to say in response. Further, the claimant presented as able to understand and answer all the questions put to him when he was crossexamined. Indeed the tribunal considered that the claimant was both articulate and clear in his evidence. However, the tribunal was also concerned that at times in his evidence he appeared to be very angry, at these points the tribunal asked the claimant to be calm and considered if breaks were necessary in order to diffuse the stress the claimant may be under. The claims

[3]The claimant brings the claims on for reasonable adjustments, indirect discrimination and a claim for discrimination arising from a disability.

[4]The issues in the claim had been set out at a case management order following discussion of the same at a preliminary hearing. However, at the outset of this hearing, the tribunal clarified the claimant’s case. He confirmed that the reasonable adjustment claim and Indirect discrimination claims were based upon the respondent’s practice of not properly investigating unsatisfactory references. The claimant stated that this puts him at a disadvantage as he was more likely to receive a negative reference, based on his communication difficulties presented by his ASD.

[5]The respondent accepted the claimant was disabled within the meaning of the Equality Act 2010 at all material times. The evidence

[6]The tribunal heard from the claimant and two witnesses for the respondent, Mrs Adams, Head of Resource and Shared Services and Mr Gavin Morris Sector Safeguarding Lead. The tribunal also had a bundle of 536 pages of evidence before it and it considered all the documentary evidence before it that it was referred to. It also carefully considered the submissions made by both the claimant and the respondent. The facts

[7]There are many agreed-upon facts in this claim. It was agreed the claimant made a job application for the role of 999 call handler. It was also agreed that a conditional job offer was made to the claimant for this post. This was conditional upon positive references and a sufficient DBS, amongst other matters.

[8]The claimant’s DBS showed a conviction. He had been convicted for stalking under the Protection from Harassment Act 1997. The penalty given include a restraining order for a period of five years. The claimant also had disclosed in Case No: 6018814/2024 3 advance to the respondent that he had a conviction. Further, the claimant was given two references the respondent considered unsatisfactory. His application was considered twice by what the respondent calls an ‘EVC panel’ whose role was to undertake a risk assessment and make an employment decision where a DBS certificate had been returned and was not clear, meaning that it included either a conviction or other relevant and potentially problematic information on an applicant.

[9]The claimant engaged with the EVC panels and provided his account of the conviction. He also provided written submissions to the EVC panel and evidence as to the context of his conviction and the negative references and his ASD.

[10]Subsequent to the EVC conducting a risk assessment, the job offer was withdrawn.

[11]It is also agreed that the respondent did not go back to the claimant’s previous employers who had provided negative references and explore the evidence that led to a negative reference. Nor did the respondent explore the claimant’s medical evidence any further than reading the medical evidence he provided them and obtaining an OH assessment. It is further agreed that the OH report found the claimant fit for the role.

[12]Further, the tribunal found that the claimant threatened to take the respondent to an employment tribunal at numerous stages throughout the application process.

[13]There was one unagreed fact, that needed to be determined. The respondent’s evidence raised concerns about the claimant’s conduct outside of the EVC panel meeting, the tribunal accepted Mrs Adams’ evidence In particular, that the claimant called her up and told her that it would be a mistake if she did not employ him and that he knew where she worked and he would come and find her. Although the claimant denied having said this in evidence, we consider that Ms Adams was a credible witness and her account of this call was supported by a later email the claimant sent Mrs Adams in which he again asserted that in his view it would be a mistake of her not to employ him. Mrs Adams was concerned by this and the matter was reported to the police by the respondent.

[14]It is also worth highlighting for the sake of completeness that various adjustments were made by the respondent to the recruitment process in order to assist the claimant. The respondent held a panel to review the Claimant’s explanation and give him an opportunity to explain the circumstances of the conviction. In this case, the respondent, did that twice due to the claimant’s Case No: 6018814/2024 4 concerns with the first process and his complaints about his communication. This was not the usual process and was done in order to accommodate the claimant. The EVC panel meeting was held in person as that is what the claimant requested. This was not the unusual process and was done in order to accommodate the claimant. The respondent gave the claimant an additional opportunity to add further points in writing and to add further evidence for the EVC review. The law

[15]The claimant brings complaints alleging discrimination on the grounds of the protected characteristic of disability under the provisions of the Equality Act 2010 (“EqA”). The claimant complains that the respondent has contravened provisions of part 5 (work) of the EqA.

[16]The duty to make reasonable adjustments appears in Section 20 Equality Act 2010 as having three requirements. The requirement of relevance in this case is the first requirement in Section 20(3). That is as follows: “the first requirement is a requirement, where a provision, criterion or practice [“the PCP”] of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.

[17]The obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is one in respect of which the EHRC Code provides considerable assistance. A list of factors which might be taken into account appears at paragraph 6.28 and includes the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer’s financial or other resources and the type and size of the employer. Paragraph 6.29 makes clear that ultimately the test of the reasonableness of any step is an objective one depending on the circumstances of the case. Examples of reasonable adjustments in practice appear from paragraph 6.32 onwards.

[18]As to whether a disadvantage resulting from a provision, criterion or practice is substantial, Section 212(1) of the 2010 Act defines “substantial” as being “more than minor or trivial”. Paragraph 20(1) of Schedule 8 to the 2010 Act provides that: ‘a person is not subject to the duty to make reasonable adjustments if he or she does not know, and could not reasonably be expected to know:(a) in the case of an applicant or potential applicant for work, that an interested disabled person is or may be an applicant for the work in question; Case No: 6018814/2024 5

(b) in any other case referred to in Part 2 of the Schedule, that an interested disabled person has a disability and is likely to be placed at a disadvantage by [the employer’s provision, criterion or practice (PCP), the physical features of the workplace, or a failure to provide an auxiliary aid]’.

[19]In Smith v Churchills Stairlifts plc

2006 ICR 524

, CA, the Court of Appeal confirmed that the test of reasonableness in the context of what is now S.20 of the Equality Act 2010 is an objective one and it is ultimately the employment tribunal’s view of what is reasonable that matters.

[20]If the steps that it is suggested that a respondent should have taken by way of reasonable adjustment (whether in the form of the provision of an auxiliary aid or otherwise) would have no real chance of avoiding or reducing the disadvantage, then the respondent is under no duty to take those steps. It cannot be reasonable to require a party to make an adjustment that has no prospect of achieving the desired effect (Hindmarch v North-East Ambulance NHS Foundation Trust

[2025] EAT 87

). However, it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage, Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

[21]Discrimination arising from disability is defined by s15 of the Equality Act as when: A person(a) (A) discriminates against another

(b) (B) if, A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[22]There are four elements to section 15(1), as explained by the EAT in Secretary of State for Justice and another v Dunn EAT 0234/16(a) there must be unfavourable treatment;

(b) there must be something that arises in consequence of the claimant’s disability;

(d) and the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

[23]In Pnaiser v NHS England and anor

2016 IRLR 170

, the EAT summarised the approach to be taken under section 15. The tribunal must identify whether there was unfavourable treatment and by whom. It must determine the cause of or reason for the treatment, focusing on the conscious or unconscious thought processes of the alleged discriminator. There may be more than one reason or cause for the treatment and, as in a direct discrimination case, the ‘something’ need not be the main or sole reason for the treatment but it must have at least Case No: 6018814/2024 6 a significant (more than trivial) influence so as to amount to an effective reason for or cause of it. If an effective reason or cause is ‘something arising in consequence of’ the claimant’s disability, the tribunal will consider whether the respondent can show that the treatment is a proportionate means of achieving a legitimate aim.

[24]When considering whether treatment meets that test, the tribunal must carry out a critical evaluation, weighing the needs of the employer against the discriminatory impact on the employee. The tribunal must carry out its own assessment on this matter, as opposed to asking whether the employer acted reasonably.

[25]For an indirect discrimination claim to succeed each the four elements of s 19(2) EqA must be met, namely: there must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the claimant; that PCP must put people who share the claimant's protected characteristic at a particular disadvantage when compared with those who do not share that characteristic; the claimant must experience that particular disadvantage; and then, the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim Business needs and economic efficiency may be legitimate aims, but the EHRC Employment Code says that an employer solely aiming to reduce costs cannot expect to satisfy the test (paragraph 4.29).

[26]In paragraph 4.31, the Code gives guidance on the meaning of proportionality, referring to decisions of the CJEU which view treatment as proportionate if it is ‘appropriate and necessary’. The Code explains that ‘necessary’ does not mean that the measure adopted by the employer is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means. Conclusions Failure to make reasonable adjustments

[27]The PCP relied upon by the claimant is that the respondent did not investigate his negative references. The tribunal accepted on the basis of the respondent’s evidence, that it did not investigate the claimant’s references any further than reading the documents provided by the former employers. These employers were not connected with the respondent in any way, save that they were included on the application form the claimant completed for the 999 call handler role. Case No: 6018814/2024 7

[28]However, the tribunal did not find the claimant had suffered a disadvantage as a result of this. The disadvantage the claimant relied upon is that his job offer was withdrawn.

[29]There is no evidence before the tribunal, save for the claimant’s assertion, that someone with ASD would be more likely to experience a negative employment reference than any other employee.

[30]However, even if that were the case, the tribunal found that the claimant’s job offer was not withdrawn because of the references. The tribunal accepted the evidence of both the respondent’s witnesses that the job offer was withdrawn primarily due to the claimant’s conviction and the claimant’s conduct in the EVC Panel reviews. As to the latter the respondent concluded that the claimant’s conduct demonstrated a lack of insight and understanding into his conduct and his conviction and as such posed an ongoing risk.

[31]The contemporaneous documentation clearly shows that the EVC Panel focused on potential risks posed by the claimant’s conviction and that this was the reason why the panel decided to withdraw the job offer. Further, Mr Morris told the tribunal in his evidence, that the EVC panel were only convened for issues arising out of DBS checks and not negative references. The tribunal accepted his evidence that where negative references coexisted with an unclear DBS they may be part of the background taken into account by the EVC panel but were not the determining factor. It follows, that even if the duty to make reasonable adjustments had arisen, the adjustment sought would not obviate a disadvantage. Even if the respondent had investigated the references and considered that they were unfair or unreasonable, they still would have withdrawn the job offer due to the claimant’s conviction and his conduct before the EVC panel and his threats to Mrs Adams.

[32]For these reasons the claim for failure to make reasonable adjustments is dismissed. Indirect discrimination

[33]The claimant relies upon the same PCP as set out under the claim for failure to make reasonable adjustments and for the same reasons the tribunal found the respondent did have this practice.

[34]Further, the same disadvantage is relied upon. Again, the tribunal finds there was no disadvantage as a result of this PCP. The claimant claim is that his disability causes him to act in way that are more likely to be interpreted negatively by other people and that this renders him more likely to get a negative reference. There is no evidence of that before the tribunal save for the Case No: 6018814/2024 8 claimant’s assertion of the same. Even if it were correct, the disadvantage relied upon is having the job offer withdrawn. For the reasons already set out above the tribunal does not consider that this was a consequence of the respondent’s practice of not investigating unsatisfactory job references.

[35]Further, in a claim for indirect discrimination, the disadvantage must be considered in a comparative exercise. The appropriate comparator in the case is an employee who the PCP also applies to, in that the employee is someone who also has had negative employment references that the respondent has not investigated further. The tribunal find that when judged against that comparator the claimant and people with ASD suffered no specific disadvantage.

[36]The claimant’s case was that the respondent’s actions were not proportionate as he should have been given the job on at least a probationary basis. We accept Ms Page’s submission that whether the PCP was necessary requires weighing the importance of the legitimate aim against any discriminatory impact caused by the PCP.

[37]In this case we have not found any discriminatory impact or disadvantage caused by the PCP. However, the tribunal went on to consider, if that were wrong and the claimant did suffer disadvantage, i.e. the job offer being withdrawn was this justified?

[38]The tribunal found the respondent’s conduct was justified. The tribunal accepted that the respondent’s actions were aimed at fulfilling their duty of care to vulnerable individuals. 999 callers are often, by definition, at a very vulnerable moment in their lives when they call 999, and call handlers will have access to a lot of sensitive personal identifying and sensitive data about those individuals. Other staff may also be vulnerable, having to sit with and hear very difficult events unfold. The tribunal considered this was a legitimate aim.

[39]The tribunal also considered the decision to withdraw the job offer was proportionate, in the sense that it was reasonably necessary to meet this aim. In this case, having undertaken this balancing exercise the tribunal held, that there was nothing less discriminatory that could have been done instead.

[40]In forming this view, the tribunal considered the rights of other stakeholders, critically, other staff and those seeking care from the emergency services. The tribunal considered the respondent’s conclusion it would not have been responsible or safe to put the claimant in direct contact with those people even on a probationary basis in the circumstances of the level of risk posed by the claimant’s conviction and his conduct during the application process was reasonable. Case No: 6018814/2024 9

[41]The tribunal accepted that the claimant provided evidence that he had undertaken therapy and carefully considered his argument that this had altered his conduct such that it reduced any risk posed by his conviction. The tribunal also accepted that the claimant had disclosed the conviction and the possibility of negative references to the respondent. The tribunal is not making a finding that the claimant was likely to repeat his actions or that he is a risk. The tribunal is not tasked with answering those questions. However, the tribunal considered there was a risk posed by the facts of the claimant’s conviction and also his conduct during the application process and that the respondent had to manage that risk and that their decision not to offer the claimant a job was a proportionate manner of managing that risk and meeting their duty of care to service users.

[42]At the heart of the claimant’s case is that he considers that the respondent should have considered his written submissions over what he said during the EVC panel meeting. The tribunal considered that the respondent's decision that there was an ongoing risk posed by the claimant was reasonable in the circumstances, givena. the conviction was fairly recent and a restraining order was still effective,

b. His response in the EVC panel review meeting,

c. his conduct towards Mrs Adams. This was verified by the claimant’s evidence before the tribunal, when he was asked about what he considered he had done wrong in order to be convicted, he explained that he had made chit chat in a betting shop and was too polite. He told the tribunal that what he had learned from his conviction was that he should not be polite to people.

[43]For all these reasons the tribunal dismisses the indirect discrimination claim. Discrimination arising from a disability

[44]The ‘something arising’ the claimant relies upon is his inability to articulate himself under pressure. There was no medical evidence of this before the tribunal. The tribunal also noted that the claimant’s own witness statement which he confirmed as true before the tribunal, opens with a statement that one of his strengths is acting under pressure.

[45]The tribunal also consider that the claimant was able to fully articulate himself in his evidence before the tribunal. He was able to answer the questions in a meaningful and responsive way and he was clear in his answers. For these reasons the tribunal did not consider the claimant has an inability to articulate himself under pressure and it follows that this does not arises from his disability. Case No: 6018814/2024 10

[46]However, if the tribunal is wrong in that conclusion and this was something arising in consequence of his disability, the tribunal accepted that it was because of the claimant’s conduct at the EVC Panel in part that lead to his job offer being withdrawn, which is the unfavourable treatment complained of.

[47]However, the claim does not succeed. The tribunal considered that the treatment was justified. The tribunal accepted the respondent’s evidence and submission that 999 call handlers have to deal with pressure and that calls are not entirely scripted. The Tribunal accepted that given the claimant’s own assertions regarding the challenges he faces as a consequence of his disabilities, he would struggle to fulfil the requirements of the role if he has difficulties communicating under pressure, which the tribunal accepted was an essential requirement of the role. The respondent’s aim of having employees who can fulfil the functions the role requires to provide a public service is a legitimate one. Not employing an applicant who cannot fulfil these requirements is a proportionate means of meeting that aim.

[48]For these reasons, this claim is dismissed. Approved by: Employment Judge Price 26 February 2026 SENT TO THE PARTIES ON 5 March 2026 ...................................................................... FOR THE TRIBUNAL OFFICE All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunaldecisions shortly after a copy has been sent to the claimants and respondents.