Mr R Maddison v Suresave Energy Services UK Ltd: 8001583/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001583/2025
Between
Mr Rhys MaddisonClaimantSuresave Energy Services UK LimitedRespondent
Before
Employment Judge J G d’InvernoMr J Lawson, Solicitor for claimantMs G Nicholls, of Counsel for respondentDate 24 February 2026
JUDGMENT
The Judgment of the Employment Tribunal is: (First) That each of the claimant’s complaints of; Unfair Dismissal, in terms of the Employment Rights Act 1996 (“ERA”), and of Discrimination arising from Disability and Discrimination by reason of Asserted Breach of Duty to Make Adjustments, in terms of the Equality Act 2010 (“EqA”), fail. (Second) The claimant’s section 98 ERA complaint of Unfair Dismissal is dismissed. (Third) The claimant’s section 15 ERA complaint of having suffered Discrimination arising from Disability is dismissed. ETZ4(WR) (Fourth) The claimant’s section 20/21 EqA complaint of Discrimination by reason of Breach of Duty to make Adjustments is dismissed.
REASONS
[1]This case called In Person at Edinburgh on 20 January 2026 being the first day of a 4 day listed Final Hearing.[2]The claimant appeared and was represented by Mr J Lawson, Solicitor.[3]The Respondent Company, Suresave Energy UK Limited, was represented by Ms G Nicolls, of Counsel.
The Issues
[4]In the course of Case Management Discussion conducted at the outset of the hearing parties representatives confirmed and the Tribunal records that the issues requiring investigation and determination at Final Hearing remained those set out by Judge Cowen at paragraph 16 of her Note of Output and Orders, issued following the Closed Preliminary Hearing (Case Management Discussion) which proceeded before her on 25 September 2025, the same being:- “Disability It is agreed that the claimant was disabled by way of cancer between October 22 and his dismissal on 31st January 2025. Discrimination arising from a disability (section 15 EqA)
The Issues
[1]Did the respondent treat the claimant unfavourably? The unfavourable treatment of which the claimant complains is his dismissal.[2]If so, did the respondent treat the claimant unfavourably because of something arising from his disability? The claimant asserts that the ‘something arising’ is absence.[3]If so, can the respondent show that the treatment was a proportionate means of aching a legitimate aim within the meaning of section 15(1)(b) EqA? The respondent asserts that the legitimate aim was managing its business. Reasonable Adjustments[4]Did the respondent operate a provision, criterion or practice (“PCP”) which put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with a person who did not have his disability? The claimant relies on;(a) the PCP of the attendance targets applied by the respondent and,(b) the Absence/Capability Policy.[5]If so, did the respondent know or could the respondent reasonably have been expected to know that the claimant was likely to be at a substantial disadvantage by that PCP when compared with persons who do not have his disability? (a) The claimant alleges that the substantial disadvantages were; (i) the dismissal (ii) the likelihood of being dismissed[6]If so, did the respondents take such steps as it was reasonable to have taken to avoid the disadvantage, in accordance with section 20 of the EqA 2010? The claimant alleges that the following adjustments should have been made:(a) A phased return to work(b) Working from home(c) A suitable alternative role.[7]Did the respondent fail to make these adjustments?[8]If so, was it reasonable for the respondent to make these adjustments?[9]If the respondent had implemented the adjustments that the claimant contends should have been made, would this have alleviated any disadvantage? 10.Can the respondent show that the claimant was dismissed for a potentially fair reason pursuant to section 98(1) or (2) of the ERA? The respondent says that the reason was capability. 11.If so, did the respondent act reasonably in all the circumstances in treating that reason as a sufficient reason for dismissing the claimant pursuant to section 98(4) of the ERA? 12.Did the respondent follow a fair procedure when dismissing the claimant?
Remedy
[13]In the event that some or all of the claimant’s claims are successful:(a) What financial loss has the claimant suffered?(b) What level of compensation should be awarded for injury to feelings?(c) Should there be any reduction to the award of compensation?(d) If an appropriate process has been followed, what are the chances that the claimant would have been dismissed in any event?(e) What steps has the claimant taken to mitigate his loss?(f) Have the steps taken by the claimant to mitigate his loss been reasonable?” Sources of Documentary and Oral Evidence 5. Parties lodged a Joint Bundle of documents to be referred to at the hearing extending to some 160 pages to which, on the morning of the first day there was inserted, on the claimant’s application of consent of the respondent, substitute pages 15A, 15B, and 15C, and additional pages 161 to 171 inclusive. 6. The Tribunal was referred to certain of the documents in the Bundle, in the course of evidence and submission. 7. The claimant gave evidence on affirmation on his own behalf. 8. For the respondent evidence was heard from Mr David Black, Dismissing Officer and the respondent’s Head of Operations, and Mr Robert Stirling, the Internal Appeal Officer and the respondent’s Managing Director, both of whom gave evidence on oath. Agreed Facts 9. At the outset of the hearing parties representatives tendered and the Tribunal received a “Statement of Agreed Facts” intended by parties to be binding upon the Tribunal for the purposes of the hearing. 10. The agreed facts, numbered 1 to 15 inclusive together with an additional matter of fact, the agreement of which was confirmed in the course of submissions and is allocated the number “16”, are as follows:- The claimant was employed by the respondent from 27th June 2022. “1. 2. The claimant’s employment was terminated by the respondent on the 31st January 2025. 3. The claimant was employed as a Site Manager. 4. The claimant’s annual salary at the date of termination was £46,675.20. 5. The claimant is a disabled person as defined by section 6 of the Equality Act 2010. His disability was cancer. The respondent had knowledge of the claimant’s disability at the relevant time. 6. The claimant was first absent from the respondent due to his cancer on the 24th of October 2022. On or around 13th January 2023 the claimant returned to work on a 7. phased return. 8. The claimant was absent from work again due to his mental health and treatment regarding his cancer from the 19th of February 2024. 9. The claimant did not return to work prior to his dismissal following being off work from the 19th of February 2024. 10. The respondent got Occupational Health Reports for the claimant on the 4th of April 2024, 17th September 2024, 17 December 2024. 11. The respondent and claimant had welfare calls on the 23rd September 2024, 5th November 2024, 3rd December 2024. The claimant was dismissed on the 31st of January 2025. 12. The claimant appealed the decision to dismiss him on the 21st of 13. February 2025. The claimant had an appeal meeting on the 14th of March 2025. 14. The claimant’s appeal was rejected on the 20th of March 2025.” 15.[16]As at the date of dismissal, the claimant had accrued 2 complete years of service and, in the event of his complaint of unfair dismissal succeeding it was a matter of agreement that his basic award would fall to be quantified in the sum of £1,400. Findings in Fact11. On the oral and documentary evidence presented the Tribunal made the following essential Findings in Fact restricted to those relevant and necessary to the determination of the issues. The Effective Date of Termination of the claimant’s employment was 31st of12. January 2024.13. The claimant was dismissed for reason of capability which is a potentially fair reason in terms of section 98(2)(a) of the Employment Rights Act 1996 (“ERA”).14. As at the Effective Date of Termination, the respondent’s undertaking was one in which approximately 600 individuals were employed.15. In October of 2022 the claimant, having been diagnosed as suffering from kidney cancer underwent the surgical removal of one of his kidneys. 16. When not absent from work due to ill health, the discharge of the claimant’s duties in his role of Site Manager involved him undertaking a 2½ hour each way self driving commute from his home in Dundee to the site of which he was Manager in Aberdeenshire.[17]The claimant, on average stayed overnight in hotel accommodation proximate to the site for 2/3 nights of the working week.[18]When not absent from work due to ill health or engaged on a phased return to work, the claimant performed his duties in the role of Site Manager for between 1 and, up to a maximum of, 3 days per month working from home, with the balance of his working day spent on site.[19]While the claimant’s role as “Site Manager” did not change, the duties and tasks which required to be executed by the Site Manager in that role did change and evolve as the contract, under which site work was being carried out, progressed through its various stages.[20]In January of 2024 the nature of the tasks which required to be executed by the Site Manager were such that they required to be executed substantially on site and could not be satisfactorily undertaken through remote working.[21]In October of 2022 the claimant, having been diagnosed with a cancer of the kidney, underwent the surgical removal of his right kidney.[22]In 2023, following the full healing of his surgical wounds, he being in no pain and not requiring to take any medication, the claimant undertook a phased return to work upon temporarily adjusted duties.[23]The temporarily adjusted duties were;(a) carrying out of office work only,(b) from home initially,(c) with a gradual build up to full time working hours across a 5 week period after which,(d) the claimant commenced site work for 1 day per week with,(e) it gradually increasing to his pre absence levels of performing the full duties of his role substantially on site with home work of only between one and three days per month.[24]Following his return to full time working in 2023, the claimant commenced a further long term absence from work on the 19th of February 2024, from which he did not return prior to his dismissal on 31st January 2025. In the period 19th February 2024 until up to around 15th April 2024, the principal25. reason for the claimant’s absence was work related stress and anxiety arising out of having to undertake responsibility for managing scaffolding activities on site, that being an area in which he was both unexperienced and had not received specialist training for. In the period 19th February to 15th April 2024 the claimant was unaware of what26. was subsequently identified to be a recurrence of his cancer.[27]The claimant was referred to Dr Christine Dainty, Occupational Health Physician whose Report, dated 4th April 2024 is produced at pages 87 to 89 of the Bundle.[28]Under the heading “Background and Current Situation”, in the second paragraph on page 88, Dr Dainty states “Mr Maddison explained to me that he is currently awaiting the results of a scan following his treatment for his serious medical condition in 2022, and until those results have been shared with him, I think this is an ongoing source of stress for him.”[29]In the fifth paragraph of the OH Report, on page 88 of the Bundle, Dr Dainty “There are no work place adjustments I can suggest at this stage which would support a return to work currently.”[30]Under the heading “OH Clinical Opinion and Recommendation”, at page 88, Dr Dainty stated “In my opinion Mr Maddison is currently not fit for work due to his ongoing stressors. I would be hopeful that on resolution of his recent health issues, a planned return to work can be anticipated following his results. At that stage he would be fit for work with suitable adjustments.”;[31]Regrettably, the hoped for resolution of the claimant’s “recent health issues”, those being issues of non cancer related stress, did not follow; rather, on or about the 15th of April 2024, the claimant received confirmation that his cancer had returned requiring further intervention surgery. Prior to the confirmation of the re-emergence of his cancer on or about 15th April 32. 2024 the claimant had intended and was preparing to return to work in the week beginning 15th April 2024.[33]In 2022 the claimant had continued to work and, perform his duties without adjustment, until a time very proximate to the date of his first surgery on 24th October 2022. The claimant’s second surgery took place on the 30th of August 2024.34. In the period 15th April to 30th August 2024, the claimant did not return to work but35. remained absent on sick leave.[36]The claimant’s absence in that period was vouched by a GP’s Fit Note. The Fit Note was not produced.[37]There was no objective documentary evidence placed before the Tribunal which went to determine, by way of medical diagnosis, what the reason for the claimant’s absence was in that period.[38]The claimant’s position in evidence was that he felt well enough to return to work in that period but had not done so on the advice of his then Line Manager Mr Bennett.[39]The claimant’s position in evidence was that he was sufficiently recovered from his mental health issues, felt able to and was willing to return to work in the period 15th April to 30th August 2024, remaining absent only because his Line Manager advised that he should do so. On 30th August 2024 the claimant underwent further surgery for the removal of40. cancerous cells. The surgery was intrusive. In the period 30th August 2024 up to and including the Effective Date of41. Termination of his employment, 31st January 2025, the claimant was absent recovering from his surgery. The claimant’s absence in the period 30 August up to 31st January 2026 was42. related to his disability including recovery from his surgery.[43]Post his surgery, the claimant was advised by his clinical team that the expectation, following surgery of the type which he had undergone on 30th August 2024, was that recovery should normally be achieved in a period of between 3 and 6 months. The claimant’s expectation of his likely recovery period was informed by that advice.[44]A six month period measured from the date of surgery would have expired on 28 February 2026. Following his surgery of 30th August 2024, the respondents referred the claimant 45. on 2 subsequent occasions for Occupational Health Assessment and Report; two further Occupational Health Reports were produced, one on the 17th of September 2024 (pages 90-92 of the Bundle) and a further Report on the 17th of December 2024 (pages 93-95 of the Bundle).[46]In taking steps to inform itself of the claimant’s “true medical condition” the respondent referred the claimant to and instructed the provision of Occupational Health Medical Reports and further relied upon the diagnosis and opinions set out in the Fit Notes issued by the claimant’s General Medical Practitioner.[47]The respondent’s normal practice, which was one identified in their Sickness Absence Policy, including where applying it to periods of long term disability related absence, when considering an employee’s fitness to return to work and prognosis of likely future fitness to return within a reasonable period, was to seek medical advice from expert Occupational Health medical doctors and to rely upon that of employees’ General Medical Practitioners as expressed in Fit Notes issued by them.[48]In the case of the claimant none, of the three Occupational Health Reports covering the two periods of his long term sickness absence identified a requirement for or contained a recommendation that additional clinical expert reports or information be obtained.[49]The respondent’s Absence Policy (82) includes the following wording:- “If you are unable to return to work, or it is not possible for you to give a sufficiently certain timescale of when you will be returning to work, the company may require a medical report from your GP or Consultant or refer you to a company nominated Occupational Health Service in order to ascertain a diagnosis and prognosis of your sickness absence.[50]The respondent for its part did not proactively seek such additional clinical expert evidence in the absence of any recommendation, in the Occupational Health Reports of requirement or advisability of obtaining the same.[51]The claimant, for his part did not ask, at any point during his periods of absence or post his dismissal during the appeal process, that such additional clinical expert evidence be obtained. Neither did he ever present to the respondent any such additional expert clinical evidence.[52]For sake of consistency, the respondents referred the claimant to the same Occupational Health expert doctor on each of the three occasions, Dr C Dainty.[53]In relative terms, sustaining the claimant’s long term sickness absence, for a further month from the date of dismissal 31st January 2025 until 28th February 2025, that being the expiry of a six month period measured from the date of the claimant’s surgery on 30th August 2024, would have had no significant impact on the respondent’s business.[54]During the claimant’s first period of absence in 2024/23 and during his phased return to work which commenced on or around 13th of January 2024, the on site duties of his role were carried out, in his absence, by his then immediate superior manager Mr Kevin Bennett who was based on site.[55]By the time of the claimant’s dismissal, Mr Bennett’s intermediate management position had become redundant and Mr Bennett had left the business.[56]Following the redundancy of Kevin Bennett’s role and position and his departure from the business, the respondent’s did not recruit an intermediate level manager to replace him, that level of management having been removed from the management structure. As at the date of the claimant’s dismissal, 31st January 2025, the contract, upon 57. which he was employed in the role of Site Manager was ongoing.[58]While the role of Site Manager did not, and had not changed, the duties which the Site Manager required to discharge and the location of the necessary discharge of those duties did, and had changed.[59]As at the date of his dismissal, the discharge of the duties associated with the role of Site Manager (the claimant’s role) substantially required to be carried out (performed) on site. It was not possible to discharge those duties in compliance with the respondent’s contractual obligations, by someone working solely or substantially from home as opposed to wholly or substantially on site. During the five month period from 30th August 2024 to 31st January 2025, and as60. the duties associated with the site management role increasingly required to be discharged on site as the site contract evolved through its various stages, the additional discharge of those on site duties was increasingly distributed, on a temporary basis, amongst three other employees as duties additional to those associated with their own posts. As at the 31st of January 2025, arrangements for the temporary discharge of the61. claimant’s on site duties by those three employees could have been extended on a temporary basis, for an additional month, without significant impact upon the respondent’s business. As at 31st January 2025, the discharge of the claimant’s on site duties through62. such a temporary arrangement could not reasonably have been sustained by the respondent for an indeterminate period.[63]As at the date of the claimant’s appeal hearing and as at the date of communication of the appeal outcome, the respondents had not taken steps to recruit a replacement for the claimant in the role of Site Manager.[64]The duties of the role of Site Manager which, as at the date of the claimant’s dismissal required to be discharged on site, were duties which involved the signing off and certification of the completion of certain aspects of the contracted works, including the identification and rectification of snagging works and were duties which directly impacted upon the release of contractual payments due to the respondent under the contract.[65]As at the date of the claimant’s dismissal, there was a need for the respondent to have someone doing the work which the claimant was employed to do.[66]During his first period of long term sickness absence, the respondent referred the claimant to an Occupational Health expert Doctor of Medicine and received a relative Occupational Health Report dated 1st September 2022 (78-84 of the Bundle). During his second period of long term sickness absence, 19th February 2024 to 67. 31st January 2025, the respondent referred the claimant to the same Occupational Health medical expert on three occasions receiving three Occupational Health Reports respectively dated; 4th April (87-89), 17th September (90-92) and 17th December 2024 (93-95).[68]The respondent, in addition received and considered the medical opinions expressed by the claimant’s GP in the Fit Notes, the last of which submitted by the claimant extended to the 2nd of February 2025.[69]The respondent spoke with the claimant at length regarding his disability and the state of his fitness to work, taking account of the views which he himself expressed in relation to the progression of his recovery from surgery and as to his fitness to work, in welfare calls on the 23rd September (96-97), 5th November (98-100) and 3rd December 2024 (101-104). By letter dated 24th January 2025 (110-111), the respondent invited the claimant to70. a “Capability Meeting (Ill-Health)”. The 24th January 2025 invitation letter advised the claimant that the meeting would71. be conducted under the company’s Absence Policy, a copy of which was attached, and highlighted that one possible outcome of the meeting was that his employment might be terminated by reason of capability.[72]The letter advised the claimant of his right to be accompanied by a work colleague, EFV representative, or an appropriately certified Trade Union official, and further asked that the claimant advise of any adjustment to the meeting arrangements appropriate in the light of disability.[73]The claimant opted to attend the meeting unaccompanied and confirmed to the Chair and the HR Business Partner Scott Gingell at the outset of the meeting that he was comfortable to proceed on his own. The meeting of 31st January 2025, the Minute of which is produced at (113-116) 74. was chaired by the respondent’s Head of Operations, Mr David Black. Also present at the meeting was Scott Gingell, an HR Business Partner of the respondents.[75]In the course of the meeting upon consideration of the claimant’s own expressed views and of the Occupational Health medical advice before him, Mr Black took a decision to dismiss the claimant on ill health capability grounds.[76]Mr Black’s decision to dismiss the claimant was not a decision taken by him in advance of the meeting. By letter dated 5th February 2025 the respondent wrote to the claimant confirming77. that the outcome of a capability meeting of 31st January 2025 was that the claimant’s employment was terminated on the grounds of medical capability. The 5th February 25 outcome letter went on to confirm; that the claimant was not78. required to work his notice period, that his last day of service would be recorded as the 31st of January 2025, that he would receive one month’s pay in lieu of notice, together with any accrued but unused paid annual leave entitlement, that his final payment date would be 28th February 2025 and that a P45 would be issued to him as soon as possible. The outcome letter of 5th February 2025 also confirmed the claimant’s right of79. appeal against the decision to dismiss, the mechanism by which he should exercise that right and the identity of the Appeal Officer, namely Robert Stirling, Managing Director of the respondent company to whom he should write, within 5 working days of the 5th February 2025 setting out the grounds of his appeal. The letter attached a copy of the Minute of the meeting of 31st January 2025 for the80. claimant’s information and use.[81]The claimant and Mr Black having identified in a telephone conversation that they should aim to meet in January of 2025, the date of the capability meeting (31st January 2025) was arranged by the respondent’s HR Department by reference to the availability indicated in Mr Black’s diary. Following the meeting of 31st January 2026 the claimant did not return to his 82. Medical General Practitioner either in advance of or upon the expiry of his then Fit Note on 2nd February 2026.[83]The claimant did not contact his General Medical Practitioner and ask that he be issued with a “Fit to Work” Note. Between the meeting of 31st January and the outcome letter of 5th February 2026 84. there was opportunity for the claimant to contact his GP as above.[85]Had the claimant submitted a Fit to Work Note to the respondent or a further Fit Note which identified a reasonable period within which he would be fit to return to work prior to the issue of the letter of outcome of 5th February, the Dismissing Officer, Mr Black, would have given consideration to the same. In the period 31st January to 5th February 2025 had the claimant submitted to the 86. respondent other relevant medical certification of his fitness to work or of confirmation of a reasonable period on the expiry of which he would be fit to return to work, the Dismissing Officer Mr Black would have given consideration to the same.[87]The respondent, including in particular the Dismissing Officer David Black and the Internal Appeal Officer Robert Stirling, considered the claimant to have been a valued employee.[88]In his submitted Grounds of Appeal under paragraph “7 Requested Outcome” the claimant stated he did not seek reinstatement or re-employment but rather a payment in compensation for what he asserted had been a procedurally unfair dismissal in terms of the Employment Rights Act 1996, and for disability discrimination arising from the respondent’s alleged failure to put in place work place adjustments.[89]The claimant’s Grounds of Appeal submitted by him on 21 February 2025 did not contain any express assertion that he had been fit to work on the 31st of January 2025 but rather, that he had been dismissed on 31st January “despite holding a valid GP issued Sick Note that was active until the 2nd of February 2025”.[90]The claimant’s Grounds of Appeal did not include an assertion that he had been medically certified as fit to work or otherwise an assertion that he had become fit to work in the period from 31st January to 21st February 2025. The claimant’s Appeal Hearing proceeded on 7th March 2025, that is 7 days after91. the expiry of the 6 month period measured from the date of his surgery 30th August 2024, and being the longest period over which he had been advised, at the time of the surgery, he should expect it would take him to recover from it. Between the date of his dismissal on 31st January 2025 and the Appeal Hearing92.14th March 2025, the claimant did not return to his GP to obtain a “Fit to Work Certificate”.[93]Neither at the Appeal Hearing nor between the hearing and the date of the outcome letter of 20th March 2025, some 3 weeks after the expiry of a 6 month period from the date of his surgery, did the claimant present any medical evidence certifying that he was fit to work, or stating that he would be fit to work within an identifiable reasonable period of time.[94]During the Appeal Hearing, the claimant took issue with David Black’s reliance, at the capability meeting on 31st January 2025, upon the most up to date Occupational Health Report of 17th December 2024, which stated -(a) that the claimant; was not fit to resume his duties and,(b) in which the Occupational Health Doctor was unable to provide a timescale within which the claimant might be able to return to work and stated that there were no adjustments, as at that point 17th December 2025(c) which, if made by the respondents would permit the claimant’s return to work.[95]The claimant asserted that Mr Black ought to have relied, rather, upon the earlier Occupational Health Report of 17th September 2023, which was prepared at the 6 week point following his surgery and in which the Occupational Health Doctor,(a) while also stating that the claimant was not fit to work as at that date and that he was unable to identify a date by which the claimant would be fit, also recorded,(b) that “the majority of individuals following surgery of this type may take between 3 to 6 months for full recovery” and,(c) recommended by way of work place adjustment as at the 6 week post surgery date of 17th September 2024, that the claimant be allowed more time to respond and recover following his surgery, a recommendation which the respondents had followed allowing a further period of 3 months to elapse before again referring the claimant for Occupational Health assessment. The Occupational Health Report of 17th December 2024 had recorded the 96. claimant’s statement, made to the Doctor, that as at 17th December he had been advised that further treatment was to be commenced in early 2025.[97]In the course of the Appeal Hearing the claimant stated that contrary to what had been anticipated on 17th December 2025 there had not been any further treatment.[98]The inference arising from the claimant’s statement in that regard made at the Appeal Hearing, which he confirmed in the course of evidence before the Tribunal was his intended implication, was that Mr Black’s decision to dismiss him had been based solely upon that reference to anticipated further treatment which in the course of a conversation after the date of dismissal but before the Appeal Hearing with a Urologist after the dismissal he had learned was not/was no longer in fact planned. On the 13th of March 2025, the day before the Appeal Hearing, the claimant spoke 99. with a Urology Nurse Specialist at Ninewells Hospital, in Dundee, in the course of a telephone clinic.[100]On the 13th of March 2025 at 13:30 hours the Nurse Practitioner sent a letter to the claimant (127) summarising the content of that conversation.[101]The letter of 13th March 2025, the terms of which are referred to and here held incorporated by reference, indicated that the Unit was generally aware that “after major surgery it can take a minimum of 3 months for recovery and then 3 months to resume normal activities of living.”; and “On speaking to you today you have recovered very well from your surgery and I would be expecting you to resume back to your work and also be as active as you normally are. There are certainly no restrictions with working and the purpose of surgery was to allow you to get on with your life which includes your work life as well as your social life. If you require any further information with regards to this letter please do not hesitate to contact me on the above matter.”[102]At the appeal meeting of 14th March 2025 the claimant neither produced a copy of the letter from the Nurse Practitioner to the Appeal Officer nor made reference to its existence.[103]At the appeal meeting the claimant referred only to a conversation with a Urologist. He did not recount or otherwise summarise the content of the conversation beyond stating that he had understood from it that the previously anticipated further treatment which he had told the Occupational Health Doctor about in December would not now be taking place.[104]In response to a direct question asked of him in the Appeal Hearing (136) as to how he was at that point, 14th March 25, and “what was the diagnosis, what was the doctor saying”, the claimant stated only that he was doing scans and that his operation had been successful.[105]At the appeal meeting the claimant did not state that, as at the date of the Appeal Hearing he was fit to return to work, neither did he state that at any point between the date of his dismissal and the Appeal Hearing, including after the expiry of the 6 month period from the date of his surgery, he had become fit to work.[106]The letter of 13th March 2025 from the Urology Nurse Specialist did not contain any express statement that the claimant was, as at the date of the letter, fit to work. Rather, predicated upon the claimant’s recounting that he considered that he had recovered very well from his surgery, that there was an expectation on the part of the nurse that he would resume back to work and also be; “as active as you normally are”.[107]In the letter of 13th March 2025 the Nurse Practitioner makes no recommendations as to how a return to work might/should be managed, something which is consistent with the generality of the comments and the future context in which they are being made.[108]The letter of 13th March 2025 did not expressly identify a future period of time after the elapse of which the claimant would be fit to return to work.[109]Separately, and in any event, the claimant did not make the respondent aware of the existence or of the content of the letter of 13th March 2025 until after the raising of his proceedings before the Employment Tribunal. Neither its existence nor its content were matters which were capable of being considered by the respondent prior to the determination of the Appeal.[110]The Occupational Health Report of 17th September 2024, upon which the claimant contended should have been relied upon at the Capability Hearing and at the Appeal, in preference to that of 17 December 2025 was qualified in its prognosis. In it, the Occupational Health Doctor states;- “The majority of individuals following this type of surgery may take 3-6 months of full recovery from their surgery. However it is difficult to determine at this stage, if and when further treatment may be required on a long term basis.” (91) …. “Hopefully as he progresses during his recuperation Mr Maddison will be able to reengage with day to day activities commensurate with his anticipated function in the work place” and “Once he has fully recovered and regained his normal function and ability then potentially regular attendance may be achievable.”[111]In his welfare call with Mr Black on the 5th of November 2024, the claimant stated that he was “still in the same position as he was when he saw Occupational Health [on 17 September 2024]. He couldn’t even stand when watching his son play football without being in agony.” And that his “fitness and fatigue was nowhere near where it was before the operation” (100).*[112]In making the above comments the claimant was doing so by reference to the 17th September 2024 Occupational Health Report.[113]In the welfare call of 5th November the claimant is recorded as going on to say that he had “not done anything physical, no heavy lifting or being on his feet for any length of time”. He stated “he didn’t know where he was physically”.[114]In the 17th December 2024 Occupational Health Report the claimant is recorded as saying that he was “limited by his condition, in that he is feeling extreme tiredness and fatigue”.[115]In the 17th December 24 Report the Occupational Health Doctor goes on to state that; “this is impacting on his ability to undertake normal day to day activities and this is likely to impact on his ability to undertake his work as a Site Manager” (94).[116]The Occupational Health Doctor goes on to state “Hopefully on a long term basis with response to his treatments, his functional ability will stabilise and potentially a return to work at a later date may be achievable” (94).[117]“The above expression of prognosis is twice qualified viz –(a) hopefully on a long term basis with responses to his treatments” .. and ..(b) “potentially a return to work at a later date may be achievable”.[118]The Report confirms that the claimant is not fit to return to work as at the 17th of December 2024. The Report does not identify any reasonable period of time it was expected that the claimant would be fit to return to work.[119]The Report of 17 December 2024 does not confirm that the claimant is expected to be fit to return to work by 28th February 2025, that is on the expiry of the 3 to 6 month for full recovery period which was noted in the 17th September 2024 Report as being a commonly encountered maximum time scale.[120]At the capability hearing of 31st January 2024 the claimant did not assert that he was fit to work.[121]On 31st January 2025 the claimant’s sickness absence was covered by a Fit Note stating that he was not fit to work.[122]At the capability hearing of 31st January 2024 the claimant, under reference to the qualified prognosis set out in the Occupational Health Report of 17th September 2024 stated that he had understood that that Report of 17 September 2024 said that he would be able to return at some point.[123]At the ill health capability meeting on Friday 31st January 2025, the respondent’s Head of Operations Mr Black noting that the claimant’s Sick Note was due to expire, stated that the claimant would need to attend his GP to obtain another and went on to say that, based upon the Occupational Health Report of 17th January, the claimant’s GP would in all likelihood issue him with another Fit Note. At the ill health capability meeting of 31st January 2025 the claimant agreed that his GP would in all likelihood issue him with another Fit Note following the expiry of the current Fit Note on 2nd February 2025.[124]At the ill health capability meeting of 31st January 2025, the respondent was entitled to rely upon the most up to date Occupational Health Report of 17th December 2024 and upon the claimant’s own expressed views.[125]In so relying upon the Report of 17th December 2024, Mr Black did not rely only on the reference contained in the Report to anticipated further treatment.[126]At the Appeal Hearing the claimant presented no medical evidence to support a proposition that he was, as at the date of the hearing, or at any time since the expiry of his Fit Note on 2nd February had been, fit to return to work.[127]At the Appeal Hearing the claimant did not provide the Appeal Officer with a copy of the letter of 13th March (127) which he relied upon at the hearing before the Tribunal as a medical document vouching of his fitness to work.[128]The claimant placed no medical evidence before the respondent which went to show that he was or had been fit to return to work. The claimant placed no medical evidence vouching his fitness to return to work at any point between the expiry of his Fit Note on 2nd February and the date of the appeal outcome letter of 20th March 2025.[129]At the Appeal Hearing, the claimant did not make reference to the existence of the letter at (127). He referred only to a “conversation with a Urologist” in which he had learned that there were to be no further treatments. He did not state that in that conversation he had been told that he was fit to work.[130]In the period following his dismissal, the claimant had not obtained alternative employment. On the 9th of January 2026 the claimant commenced working in a business venture of his own which involves him in flying drones over construction sites.[131]Following his dismissal, the claimant made no application for alternative employment prior to in or about June/July of 2025 and within a further 3 months thereafter ceased making applications for jobs.[132]The respondent’s aim of managing its business is a “legitimate aim” for the purposes of section 15 of the Equality Act 2010 (“EqA”).[133]The unfavourable treatment complained of by the claimant was his dismissal.[134]The respondent’s dismissal of the claimant was treatment capable of amounting to “unfavourable treatment” for the purposes of section 15 of the EqA. Failure to Make Reasonable Adjustments[135]The respondent applied its Absence/Capability Policy to amongst others the claimant, which Policy placed the claimant at a substantial disadvantage of being dismissed or the likelihood of dismissal.[136]The respondent did not apply the PCP of its attendance targets to the claimant at any point during his absences.[137]Instituting a phased return to work, allowing the claimant to work from home or, allowing the claimant to work in an alternative role, were not adjustments which, if implemented at any time prior to the claimant’s return to work or confirmation of his fitness to return to work within an identified reasonable period, were not adjustments which would have had the effect of avoiding the disadvantage at which the claimant was placed.[138]The contended for adjustments were not steps which it was reasonable to take at a time prior to the claimant’s return to work or confirmation of his fitness to return to work, to avoid the disadvantage.[139]The claimant placed no medical evidence before the Tribunal such as to enable the Tribunal to find in fact whether the claimant was or was not medically fit to work in the period following his dismissal, up to and including the first job application by him in June of 2025.[140]The claimant’s own evidence was restricted to his indicating that following his dismissal he felt “very low” particularly around the time of his son’s 21st birthday, which occurred on a date proximate to his dismissal, in circumstances where he did not have available to him the income which would have allowed him to properly mark that occasion as he would have wished to do.[141]As at both the date of the claimant’s dismissal and as at the date of the appeal outcome, no suitable alternative role to that of his then role of Site Manager, was available within the respondent’s organisation.[142]The claimant was in receipt of Universal Credit from the 31st of July 2024 up to and including the 31st of December 2025.[143]In the event that the complaint of unfair dismissal were to succeed the proscribed period would be from the date of dismissal 31st January 2025 up to and including 31st December 2025.[144]That the jobs involving the role of Site Manager came up, Scotland wide, fairly regularly depending on who was winning contracts. Summary of Submissions[145]Parties representatives exchanged and each provided the Tribunal with a written copy of the oral submissions made by them at first instance, supplemented by additional oral submissions where exercising a limited right of response.[146]These already being a matter of written record, the submissions made by parties representatives under reference to the relevant statutory provisions and the case authorities cited are held incorporated by reference, and are respectively here summarised as follows:- For the Claimant[147]While accepting that the respondent had discharged the onus of proof in establishing that the reason for the claimant’s dismissal was capability which was a potentially fair reason, the claimant’s representative submitted that upon an application of the provisions of, and the tests incorporated within, section 98(4) of the Employment Rights Act 1996 the Tribunal should hold the dismissal to be unfair in all the circumstances of the case (including the size of the respondent’s undertaking).[148]The respondent was under a proactive obligation to inform itself of the “true medical position”, and that in relying on Occupational Health Report and the opinions of the claimant’s GP as expressed in the Fit Notes together with the claimant’s own views whether recorded in the Occupational Health Reports or expressed by him in the course of welfare calls or the ill health capability meetings, the respondent had failed to fulfil that obligation. In order to fulfil the obligations the respondent was required to and therefore should have sought medical advice directly from the claimant’s “Clinical Team” including as to the nature and purpose of any anticipated further treatment recorded in the Occupational Health Report of 17th December 24 as having been mentioned by the claimant. In so failing to proactively seek medical advice from the claimant’s Clinical Team, the claimant’s representative submitted that the respondent had failed to act reasonably in treating the claimant’s ill health capability as a sufficient reason for dismissing him such as to render the dismissal unfair in terms of section 98(4) of the ERA.[149]The claimant’s representative submitted that the respondent’s referral of the claimant to an Occupational Health and medical expert rather than to “the claimant’s Consultant” was unreasonable in the circumstances and rendered the dismissal unfair.”[150]Under reference to BS v Dundee City Council, the claimant’s representative submitted that the respondent could have and in the circumstances should have, waited longer before dismissing the claimant, at least until the expiry of the 6 month period measured from the date of his surgery, that being the end of the “3 to 6 month period of time during which the claimant had been advised, at the time of undertaking the surgery that it may take him to achieve full recovery”.[151]The respondent’s witnesses had confirmed in evidence that as at the date of his dismissal the claimant’s on site duties were being spread across 3/4 different employees who were discharging them, on a temporary basis, in addition to the duties of their own principal appointments. That temporary position could have been sustained for another month without significant adverse impact upon the respondent’s business.[152]He submitted further that at the point of his dismissal the Tribunal should hold that the respondent did not have a need to have the work of the Site Manager role carried out.[153]In addition, the fact that the respondent was a relatively large employer of some 600 employees was a factor to be weighed in the balance when considering whether it was not reasonable for the respondents to have waited longer. The claimant’s representative submitted that the decision to dismiss the claimant on 31st January 2025 was not a decision which fell within the band of reasonable responses.[154]Additionally, the claimant’s representative invited the Tribunal to find that the respondent had predetermined the outcome of the ill health capability meeting based upon the dialogue between the claimant and Mr Black which is recorded in the Minute of the meeting.[155]Regarding remedy, the claimant’s representative reminded the Tribunal that the burden of proving that the claimant had failed to mitigate his loss lay with the respondent and that the respondent had led no evidence as to what further steps the claimant could have taken to mitigate his loss. He invited the Tribunal to accept the claimant’s evidence that “he was very low after his dismissal”, as a sufficient explanation of his failure to take any steps to apply for alternative work until in or around June 2025, such as to suspend his duty to mitigate his loss in that period, and that although the claimant had thereafter only applied for some 6 appointments this should not be regarded as any failure in his duty to mitigate given that he had in contemplation setting up his own business in which he began to trade in January 2026.[156]Regarding compensation the claimant’s representative reminded the Tribunal that the claimant’s salary as at the date of dismissal was a matter of agreed fact, namely £46,675.20, that as at the date of dismissal the claimant had accrued 2 complete years of service and that accordingly in the event of the complaint of unfair dismissal succeeding the claimant’s basic award should be in the sum of £1,500.[157]In terms of a compensatory award if the claimant were to be successful in his claim, it was submitted on his behalf; that he should be compensated for the 47 weeks following the expiry of a 4 week notice period in respect of which he was paid in lieu of notice, that his relevant net weekly wage fell to be quantified as £698.63 resulting in a compensatory award of £32,835.61 from which fell to be deducted the £250 of income generated from his new business in January of 2026. Further, that the claimant should receive a full 52 weeks of loss of pension contribution in the sum of £2,333.76 reflecting an auto enrolment employer’s contribution at the minimum level of 3%, that an award of £500 should be made in respect of loss of the claimant’s statutory rights and, that the Tribunal should reject any Polkey submission.[158]In relation to injury to feelings, the claimant’s representative submitted that the award was one which should sit in the middle of the updated Vento band in the sum of in or around £20,000.[159]In conclusion, the claimant’s representative submitted that the Tribunal should find that the claimant had been subjected to disability discrimination in terms of section 15 of the Equality Act 2010, the unfavourable treatment being his dismissal, and in terms of section 20 and 21 of the Equality Act 2010, by reason of breach of duty on the part of the respondent to make adjustments, the adjustments contended for being the disapplication to the claimant of the attendance targets contained within the respondent’s Absence/Capability Policy and the offering to the claimant of a phased return to work, or working wholly from home, or a suitable alternative role as an alternative to dismissing him.[160]Although the Tribunal’s understanding was that the issue of remedy had not been reserved to a subsequent hearing but rather was before the Tribunal along with the merits in the claim for determination at the instant hearing, the claimant’s representative’s written submission, at paragraph 44, proposed that in the event of the claims succeeding, the case should be continued to a separate remedy hearing to decide the level of compensation due and whether reinstatement or reengagement should be ordered. Submissions for the Respondent[161]The respondent’s representative, while acknowledging that the burden of showing a potentially fair reason sat with the respondent submitted that it had become a matter of acceptance in the course of the hearing which failing that on the evidence presented the Tribunal should find, that the reason for dismissal was capability which was a potentially fair reason. That dismissal on ill health grounds was one of the potential outcomes flagged up to the claimant in the course of the welfare call of 3rd December 2024 in the circumstances of his ongoing long term sickness absence that ultimately being the reason given for the claimant’s dismissal in the confirmatory letter of dismissal of 5th February 2025 (117).[162]That the reason for dismissal was not as appeared to have been alleged by the claimant in his oral evidence “something to do with company rebranding or reshaping”.[163]That it was no part of the respondent’s case that the claimant would have been dismissed in any event by reason of redundancy.[164]Let it be assumed that capability was either accepted or established before the Tribunal the question which then arose was whether, in terms of section 98(4) ERA 1996, the respondent had or had not acted reasonably in all the circumstances in treating the claimant’s ill health capability as a sufficient reason for dismissing him on 31st January 2025.[165]That the respondents, in accordance with their Policy had opted to obtain 3 Occupational Health Reports in the period of the claimant’s second long term sickness absence, respectively on 4th April,17th September and 17th December 2024. It had also relied upon the medical opinion expressed by the claimant’s GP in the Fit Notes submitted by the claimant and certifying his non fitness for work including that which extended up to the 2nd of February 2025.[166]The respondents had in addition sought and had taken into account the claimant’s own views in welfare calls on the 23rd of September, 5th November and 3rd December and had ultimately invited the claimant to an ill health capability meeting by letter dated 24th of January 2025 which letter expressly warned the claimant that one potential outcome of the meeting could be his dismissal on capability grounds.[167]That the evidence presented was insufficient to establish the claimant’s assertion that the Dismissing Officer Mr Black had predetermined the outcome of the meeting.[168]That the decision to dismiss was one taken at the meeting upon consideration of the views expressed by the claimant as to his state of health both in the course of the meeting and as recorded in the Occupational Health Report of 17th December and the welfare call of 3rd December 2024.[169]That at the capability meeting of 31st January 2025 the respondent had reached its decision based upon the medical evidence available to it having also taken account of the claimant’s own expressed views.[170]That the respondent was reasonably entitled to rely upon the Occupational Health Reports prepared by the Occupational Health medical expert, including the most up to date Report of 17th December 2025.[171]That the respondents were not under a proactive obligation to source separate medical advice from the claimant’s Clinical Team in the absence of any recommendation within the Occupational Health Reports that they do so and or in the absence of any request by the claimant that they do so.[172]The respondent’s representative invited the Tribunal to reject the claimant’s representative’s contention that Occupational Health experts were not qualified to provide the advice which they did in relation to the claimant, given what was said to be the complex nature of the surgery which he had undergone.[173]That whatever may be said about the complexity of the surgery, bearing in mind that it was only the claimant’s non medical evidence that went to that point, the issue of recovery to the point of fitness to work, was not of itself a complex one and was one which did fall within the competence of an Occupational Health medical expert.[174]That in placing the reliance upon the content of the Occupational Health Report of 17th December 2024 the respondent’s decision maker had taken into account not only the claimant’s comments, recorded in the Report and relating to potential or anticipated further treatment, but had relied upon the totality of the Report which contained other elements from which they were reasonably entitled to conclude that no reasonable period of time had been identified at the end of which the claimant was likely to be fit to return to work; including in particular that the claimant would be fit to return to work either on the 2nd of February, the date of expiry of his then current Sick Note or one month later, on the expiry of the 6 month maximum likely recovery period which had been flagged up to the claimant at the time of his surgery and reiterated in the 17th September Report.[175]That the decision to dismiss taken by the respondent Mr Black was one which, in the circumstances and on the evidence, both medical and the claimant’s express views, which was before him at the meeting, was a decision which he was reasonably entitled to take.[176]In relation to the appeal, that the claimant had taken no steps to return to his GP and obtain a Fit to Work Certificate either as at 2nd of February 2025 on the expiry of his then current Fit Note, or as at the 28th of February 2025 as at the expiry of the originally projected 6 month recovery period. In the respondent’s representative’s submission the explanation for that was likely to be that the claimant was not in fact fit to return to work at either of those points in time and was aware of the same.[177]In his Grounds of Appeal, submitted on the 21st of February 25, under the heading “Desired Outcome”, the claimant did not seek reinstatement or re-employment but rather compensation.[178]At the Appeal Hearing which proceeded on the 14th of March, some 6 weeks after the claimant’s dismissal, the claimant presented no medical evidence vouching any proposition that he was fit to return to work as at that date or had been fit to return to work at any point in the 6 weeks which had passed since his dismissal.[179]The respondent’s Appeal Officer Mr Stirling had made clear that had any such evidence been presented to him he would have given full consideration to it.[180]The claimant had focused on the paragraph contained within the Occupational Health Report of 17th December in which he is recorded as relaying to the Occupational Health Doctor the fact that consideration was being given to further treatment to be taken forward in January of that year. He proposed that Mr Black’s decision to dismiss had been based solely upon that paragraph and then went on to make reference to a “telephone conversation which he had had with a Urologist” in the course of which he had learned that the previously anticipated further treatments were in fact now not going to be taken forward.[181]Although asked by Mr Stirling whether he had a Report in that regard, the claimant had said that he did not and referred only to a “telephone conversation with a Urologist”.[182]The claimant had not said when the telephone conversation had taken place or refer to anything else which was said in it.[183]As had been explained before the Tribunal the claimant had in fact not only had a telephone conversation with a Urologist but had received, on the 13th of March 2025 a letter from the Urology Nurse Practitioner with whom he had spoken confirming the content of that conversation. That was the letter which was now produced at page 127 of the bundle. At no point prior to the commencement of his proceedings in the Employment Tribunal had the claimant made reference to the existence of that letter or otherwise brought its content to the attention of the respondent.[184]Its content was not something which the decision maker Mr Black could have taken account of, nor was it something which the Internal Appeal Officer Mr Stirling could have taken account of.[185]Separately, and in any event, even had the letter been disclosed to the respondents at any point in the dismissal or appeal process, it did not contain any express statement that the claimant was fit to work either as at the date of the letter or had been fit to work at any point in the period from his dismissal on 31st January. Nor did it contain any express statement that the claimant would be fit to work within an identified reasonable period of time.[186]Objectively construed, the terms of the letter fell to be regarded as a statement of general future expectation of what was likely to be the case once the claimant had recovered fitness to the point where he was able to resume normal activities of living including work life.[187]Even had the claimant made the letter available to the Appeal Officer it would not have constituted medical vouching of the claimant’s fitness to return to work nor would it have allowed for the identification of a defined reasonable period of time within which the claimant would be fit and able to return to work.[188]That in all the circumstances the dismissal fell to be regarded as fair in terms of section 98(4) of the ERA 96.[189]That the respondent did not accept the claimant’s representative’s characterisation of the dismissal as being a “sanction” in the context of an ill health capability reason for dismissal.[190]That the respondent relied upon objective justification in respect of its decision to dismiss the claimant.[191]That the decision to dismiss was not predetermined.[192]That nothing turned upon the date of the meeting that having been fixed by the respondent’s HR Department and driven by Mr Black’s diaried availability.[193]That any reference that had been made to a potential ex gratia payment was not a concession that the respondent had got the process wrong or anything along those lines.[194]The claimant had not asserted at the capability meeting of 31st January 25 that he was fit to work contrary to the terms of his then valid Fit Note. In his Grounds of Appeal he founded upon the Fit Note asserting that he had been dismissed when medically unfit to work.[195]That in all the circumstances the respondents were entitled to rely upon the claimant’s own account of matters and the Occupational Health Reports, as sufficient in the circumstances to inform their decision to dismiss.[196]That although, at the appeal meeting the claimant had made reference to the possibility of obtaining of a further Occupational Health Report that suggestion was not backed up by a Fit Note or any other medical vouching by him.[197]That it was open to the claimant to have asked at any point in the process that the respondent obtain specialist input from his Oncologist in addition to the Occupational Health Reports and his GP’s Fit Notes, but that at no point had he done so.[198]That in the 7 days elapsing between the letter from the Urology Nurse Practitioner of 13th March and the appeal outcome letter of 20th March it was open to the claimant to bring the existence and content of that letter to the Appeal Officer but that he had not done so.[199]That the Tribunal should hold that the decision to dismiss was both substantially and procedurally fair and that the respondent had acted reasonably, in all the circumstances, in treating the claimant’s ill health capability as a sufficient reason for dismissing him as at the 31st of January 2025.[200]Under reference to the case of Polkey, that the claimant’s failure to revert to his GP post 2nd February 2025 for a Fit Note/Fit to Work Certificate and the absence of any attempt on his part to seek employment or to otherwise generate any income until January of 2026 had the claimant not been dismissed on the 31st of January 2025, on the balance of probabilities he would have been dismissed very shortly thereafter within a few weeks of the 31st of January 2025, and that any compensatory award made in the event of the complaint of unfair dismissal succeeding should be reduced significantly to reflect the likelihood of subsequent dismissal on capability grounds. Discrimination Arising From Disability[201]While accepting that dismissal is treatment capable of amounting to “unfavourable treatment” the respondent’s representative submitted that only the period from 30th August 24 to the date of dismissal 31st January 25 fell, on the evidence, to be regarded as attributable to “absence arising from the claimant’s cancer”.[202]That the respondent had a legitimate aim of managing its business and that the dismissal was an appropriate means of achieving that legitimate aim and was a reasonably necessary means of doing so. Failure to Make Reasonable Adjustments[203]The respondent’s representative noted that the claimant relied on 2 PCPs, namely the application of attendance targets and the application of the Absence/Capability Policy to the claimant. The respondent’s representative submitted that there was no evidence before the Tribunal that went to establish that attendance targets were ever applied to the claimant or ever placed him at a substantial disadvantage. Per contra the evidence of the respondent’s witnesses was that the targets had not been applied to the claimant at any point during either of his long term sickness absences and that the complaint, in so far as relying upon the application of that PCP should fail.[204]In respect of the application of the Absence/Capability Policy, the respondent’s representative accepted that this was applied amongst others to the claimant and placed the claimant at a substantial disadvantage of being dismissed or of the likelihood of dismissal.[205]That, as at the date of the decision to dismiss the discharge of the duties associated with the claimant’s role required to be carried out substantially “on site”. They could not be discharged by home working.[206]That there was no evidence before the Tribunal of the existence of alternative roles. The respondent’s witnesses’ evidence was that no suitable alternative roles were available.[207]Notwithstanding the above, it would not have been reasonable to have implemented (nor would it have alleviated the substantial disadvantage); a phased return to work, working from home or an alternative role in circumstances where the claimant was not fit to work, where the role could not have been carried out from home or where there was no suitable alternative role.[208]On the basis of the above, the respondent’s representative submitted that the complaint of discrimination arising from alleged breach of duty to make adjustments should be dismissed. Remedy[209]That the sum of £250, earned by the claimant in January of 2026 fell to be deducted from any compensatory award made if losses were awarded up to that point.[210]That the recoupment provisions applied in respect of Universal Credit sums received.[211]That it was a matter of agreement between the parties that the basic award fell to be quantified in the sum of £1,400.[212]That taking into account Polkey, the loss of earnings should be capped at 4 weeks (4 x £695.83 = £2,794.52 net) plus pension loss of 4 weeks x £44.88 equalling £179.52.[213]In the alternative, if the Tribunal was not minded to make a Polkey deduction, then in the respondent’s submission the claimant, (if he was fit as he now appears to be suggesting in retrospect), could have and should have gained new employment within a relatively short period of time from dismissal and any future loss flowing from dismissal should be capped at no more than 1-2 months. Mitigation of Loss[214]In failing to take any steps to find alternative employment until after the elapse of some 5 or 6 months from the date of his dismissal, the claimant had not acted reasonably in mitigation of his loss.[215]There was no medical evidence before the Tribunal which went to vouch a medical reason for his delaying to do so. The only explanation advanced was the claimant’s evidence that after his dismissal he felt very low occasioned by his inability to provide an appropriate celebration for his son’s 21st birthday which had occurred proximate to the date of his dismissal.[216]That the evidence of Mr Black who was Scotland wide Head of Operations was that the role of Site Manager came up fairly regularly depending on who was winning contracts.[217]Without prejudice to the earlier submissions which were to the effect that the claimant on the balance of probabilities was not fit to work for a substantial period after his dismissal, if the Tribunal were to find that he was in fact fit to work it followed that he had failed to mitigate his loss. He should have immediately started applying for jobs similar to the ones which he applied for in June or July, October and November rather than waiting until June/July to make a first application. It was unreasonable for the claimant to have failed to take those steps sooner.[218]On the balance of probabilities, had he taken such steps he would have secured alternative employment within a relatively short period of time following his dismissal namely within 1/2 months.[219]Further, regarding the claimant’s new drone business for which, on his evidence he undertook training over an unspecified period of time, took a test in October 2025 and received his first invoice in January 2026, the respondent’s representative submitted that that was a life choice that the claimant had made and the respondent should not be required to compensate him for loss of earnings which resulted in consequence. Injury to Feelings[220]The respondent’s representative submitted that any injury to feelings award, in the event that either or both of the complaints of discrimination were to succeed, should be significantly lower than the £20,000 contended for by the claimant’s representative. The only evidence before the Tribunal in support of the contended for award was that of the claimant and was to the effect that he felt “beat up … angry … unfairly treated …” and that in being dismissed he had suffered a “crushing blow”, and in describing that such impacts on him were sharpened by the proximity of his dismissal to his son’s significant birthday. He was however unable to deny in cross examination that he had in fact capped out on company sick pay and statutory sick pay some time before the date of his dismissal, and that his financial position, with the exception of the cessation of accrual of annual leave entitlement, was in fact largely unchanged on dismissal. The respondent’s representative submitted that, in those circumstances, the dismissal could not have had the financial impact upon him which he gave evidence about.[221]That while accepting that such emotions were not uncommonly experienced by persons when they were dismissed from employment they fell far short of justifying an award of £20,000.[222]This was not a case in which there was an allegation of any enduring course of conduct or a campaign of harassment. The evidence established that, contrary to the claimant’s assertion, he did not provide medical evidence at his appeal against dismissal which was “entirely disregarded” (page 15 of the pleaded case). Rather he made a passing reference to part of a conversation with a Urologist the detail of which he did not disclose and did not provide the Appeal Officer with a copy of the letter of 13th March, nor a Fit Note from his GP either during the capability meeting or prior to or in the week after the appeal meeting. On the evidence presented the respondent’s representative submitted that in the event that the complaints of discrimination succeed, an appropriate award would lie in the middle of the lower band of the updated Vento scale and would fall to be quantified in the sum of around £5,000.[223]In conclusion the respondent’s representative invited the Tribunal to make the following Findings in Fact and in Law:(a) That the reason for dismissal was capability That the claimant was not fit to return to work on the 31st of January(b) 2025 (or on the 3rd of February 2025)(c) That the respondent was entitled to proceed to dismiss and to reject the appeal, each on the basis of the medical evidence contained within the Occupational Health Reports and on the claimant’s own account(d) That the claimant’s dismissal was fair in all the circumstances(e) That the decision to dismiss was objectively justified and was a proportionate means of achieving the respondent’s legitimate aim of managing its business(f) That the contended for “reasonable adjustments” would not have alleviated the accepted substantial disadvantage at which the claimant was placed(g) That it was separately and in any event not reasonable that the respondents, as at the 31st of January 2025 at a time when the claimant was neither fit to return to work nor was there any medically supported expectation that he would be fit enough to return to work within a reasonable time, to have implemented either a phased return to work, allowed the claimant to work from home or employed him in an alternative role when no such suitable alternative role existed(h) That in the event that the dismissal be found to be procedurally unfair, then had a fair procedure been adopted the claimant would have been dismissed shortly after the 31st of January 2025(i) That the claimant had failed to properly mitigate his losses(j) That it was not just and equitable that the respondent should have to compensate the claimant for losses arising out of his life choice to pursue a career change to carrying on a self employed drone business(k) That, in all the circumstances and upon the evidence presented and submissions made, that the claimant’s claims should be dismissed. Applicable Law and Authorities[224]In the course of parties’ submissions the Tribunal was referred to the following relevant authorities, all of which it found of assistance: 1. O’Brien v Bolton St Catherine’s Academy [2017] ICR 737 2. BS v Dundee City Council [2013] CSIH 91 3. Monmouthshire County Council v Harris [2015] UKEAT/0010/15) 4. Liverpool Area Health Authority (Teaching) Central & Southern District v Edwards [1977] IRLR 471) 5. Fyfe v Scientific Furnishing Limited [1989] IRLR 331 6. Wright v Silverline Car Caledonia Ltd UKEATS/008/16 7. East Lindsey District Council v Daubney 1977 ICR 566, EAT 8. S v Dundee City Council 2014 IRLR 131 9. Vento v Chief Constable of West Yorkshire Police (No 2) [2002] EWCA Civ 1871The Law and Authorities Equality Act 2010 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. 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. … 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. … 5. If unfavourable treatment complained of is dismissal, the test to be reviewed by the Tribunal in respect of reasonableness in the unfair dismissal claim and the s15(1)(b) test for proportionality will likely lead to the same result but it is not the case that a dismissal found to be within the range of reasonable responses will certainly be found to be a proportionate means of achieving a legitimate aim (or the other way around): O’Brien v Bolton St Catherine’s Academy [2017] ICR 737. 6. In BS v Dundee City Council [2013] CSIH 91 (as applied in Monmouthshire County Council v Harris [2015] UKEAT/0010/15) the following factors may be relevant to how long an employer may be expected to wait: availability and cost of temporary cover, exhaustion of sick pay, administrative costs of keeping the employee on the books and finally the size of the organisation. 7. The standards of a reasonable employer should be adopted when considering whether or not an employer has investigated the medical position. The standard is not whether they have left no stone unturned: BS v Dundee City Council [2013] CSIH 91 8. There is a risk that a dismissal will be found to be unfair if an employee requests (but is ignored) from obtaining a counter-report (Liverpool Area Health Authority (Teaching) Central & Southern District v Edwards [1977] IRLR 471). 9. The burden of proving a failure to mitigate losses lies with the Respondent (Fyfe v Scientific Furnishing Limited [1989] IRLR 331). The Respondent must show the Claimant has acted unreasonably; see Wright v Silverline Car Caledonia Ltd UKEATS/008/16. Findings in Fact and in Law[225]The reason for the respondent’s admitted dismissal of the claimant on 31st January 2025 was capability which is a potentially fair reason.[226]The claimant’s dismissal was not a sham redundancy.[227]The Effective Date of Termination of the claimant’s employment was 31st January 2025.[228]The claimant was not fit to return to work as at the Effective Date of Termination 31st January 2025.[229]As at the Effective Date of Termination the claimant’s absence was supported by a GP’s Fit Note certifying his non fitness to return to work and extending up to and including the 2nd of February 2025.[230]The claimant was not fit to return to work on or about the 3rd of February 2025.[231]The respondent was entitled to proceed to dismiss and to reject the appeal against dismissal, on the basis of the medical evidence (reports) from the Occupational Health expert and the claimant’s own account, communicated by him at the ill health capability meeting.[232]In dismissing the claimant the respondent followed a fair procedure.[233]In terms of section 98(4) of the Employment Rights Act 1996 (“the ERA”) the respondent in the circumstances, (including the size of administrative resources of the employer’s undertaking), acted reasonably in treating the claimant’s non fitness to return to work either on the 31st January 2025, at the point of expiry of his then current Fit Note on 3rd February 2025 or within an identified and medically supported future reasonable period, as a sufficient reason for dismissing him.[234]The decision to dismiss the claimant was one which fell within the band of reasonable responses available to an employer acting reasonably in the circumstances.[235]The respondent’s dismissal of the claimant falls to be regarded, in terms of section 98(4) of the ERA as both substantively and procedurally fair, in all the circumstances.[236]The decision to dismiss the claimant was objectively justified and was a proportionate means of achieving the respondent’s legitimate aim of managing its business for the purposes of section 15 of the EqA.[237]The reasonable adjustment for which the claimant now contends should have been implemented by the respondent on 31st January 2025, as an alternative to dismissing him, would not have avoided the substantial disadvantage at which the claimant was put in relation to returning to work and working, in comparison with persons who did not share his disability.[238]Implementing a phased return to work, working from home, or offering an alternative role in circumstances where the claimant was not fit for work were not steps which it was reasonable for the respondents to have to take at the material time to avoid the disadvantage.[239]In dismissing the claimant for reason of capability on the grounds of his subsisting ill health, the procedure followed by the respondent was not such as to taint the dismissal with unfairness.[240]In the event that the Tribunal had found the dismissal to be procedurally unfair, which it has not, it would have also found that had a fair procedure been followed, the claimant would have been dismissed shortly thereafter.[241]The claimant’s decision, taken following his dismissal, to pursue a career change to self employed drone business, was a decision point beyond which it would not have been just and equitable, in all the circumstances, for the loss sustained by the claimant following his dismissal to be regarded as loss attributable to action taken by the respondent.[242]Let it be assumed that the claimant was medically fit to work in the period from the date of his dismissal up to his making first job applications in June 2025, the Tribunal would have held that in delaying for a period of 5 to 6 months before seeking other employment and thereafter restricting job applications made by him across a 12 month period to only 5, the claimant would have failed to have taken reasonable steps to mitigate his loss.[243]In circumstances in which the most up to date Occupational Health Report, of 17th December 2024, disclosed no likelihood of the claimant being able to return to work within a defined reasonable period, and recorded the claimant’s own statement that he was, at that time still experiencing extreme tiredness and fatigue and that his position had not improved since the 17th September 2024 Occupational Health Report, the respondent’s dismissal of the claimant was an appropriate means of achieving their important legitimate aim of managing their business and was, in the circumstances a reasonably necessary means of doing so. Discussion, Determination and Disposal of the Claims[244]On the evidence presented and the submissions made the Tribunal disposes of the claims as follows. It was ultimately a matter of concession that the reason for dismissal was capability, which is a potentially fair reason in terms of section 98(2) of the ERA. That being so the core issue for determination is whether, in terms of section 98(4) of the 1996 Act the dismissal falls to be regarded as fair or unfair, that is to say:- “(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”.[245]The asserted unfairness complained of by the claimant is said to arise by reason of:(a) The respondent relying upon the reports of Occupational Health expert medical practitioners, the advice of the claimant’s GP as expressed in the Fit Notes issued, and the claimant’s own views as expressed in the welfare telephone calls and at the capability management meeting of 31st January 2025, as opposed to obtaining expert medical input from the claimant’s Clinical Team of Medical Practitioners;(b) The respondents taking the decision to dismiss the claimant as at 31st January, on the evidence available to them, rather than deferring that decision for a further indeterminate period, or at least until the expiry of a further month until what would have been the expiry of a previously identified 3 to 6 month period during which fitness to return to work might be expected to have been recovered; and(c) The respondent failing to put in place arrangements for phased return to work, as an alternative to dismissing the claimant, on 31st January 2025 at a point before the claimant was fit to return and at which no definitive reasonable period of time after which he would be fit to return had been identified, and or at the same point failing to offer him alternative employment or the facility to perform the duties of his role, as required at that time, entirely from home.[246]As per BS v Dundee City Council above, the factors of “availability and cost of temporary cover, exhaustion of sick pay, administrative costs of keeping the employee on the books” are relevant considerations when answering the question of how long an employer must wait.[247]In approaching its consideration and determination of the complaint of unfair dismissal the Tribunal is conscious that it must guard against the error of substituting its own view for that of the employer, something which were it to do, it would err in law.[248]The decision to dismiss or not is not a medical question but one to be answered by employers in the light of available medical evidence. It is not the function of employers any more than it is of Employment Tribunals to turn themselves into a medical appeal tribunal to review the opinions and advice received from their medical advisors (East Lindsey District Council v Daubney 1977 ICR 566 EAT.) Although a reasonable employer, acting reasonably in the circumstances, “in one way or another takes steps” … “to discover the true medical position.” (East Lindsey District Council v Daubney above), an employer is entitled to rely upon ill health as a reason for dismissal. An employer, faced with a medical opinion, is not required to evaluate it as a layman in terms of medical expertise, unless it is plainly erroneous as to the facts in some way, or plainly contains an indication that no proper examination of any sort has taken place.[249]There was nothing on the face of the Occupational Health Reports relied upon by the respondents, or of the GP’s Fit Notes, going to indicate that the employer could not reasonably rely upon the Reports and the medical opinions expressed within them. There was no recommendation on the part of the Occupational Health expert that a requirement existed to obtain separate expert clinical reports. At no time in the process up to and including the issuing of the appeal outcome letter did the claimant, for his part, ever request that such additional and distinct expert medical evidence be sourced. In the circumstances, the Tribunal was satisfied that in taking steps to discover the true medical position the respondents were entitled to rely upon the medical evidence before them (the Occupational Health Reports and the GP’s Fit Notes) together with the claimant’s own expressed views. They were not in the circumstances under a proactive obligation to go behind the medical opinions expressed in the Report or in the GP’s Fit Notes. The Tribunal was satisfied that in so doing the respondents acted reasonably in the circumstances.[250]In relation to the date of the decision, that is 31st January 2025 at the 5 month post operative point as opposed to 1 month later at the 6 month post operative point, while accepting that it would have been possible for the temporary arrangements made for the discharge of the claimant’s duties to have been continued for a further month without significantly adversely impacting upon the respondent’s business given the size of the undertaking, an employer is not under an obligation to wait for an indeterminate period in circumstances where an employee is not fit to return to work and in which no reasonable period of time has been identified after which the employee would be fit to return to work. The Tribunal reminds itself that the test to be applied is not whether some reasonable employers acting reasonably in the circumstances would have waited for an additional month but rather whether it can be satisfied that no reasonable employer acting reasonably in the circumstances would have decided to dismiss on the evidence available to them at the date of taking the decision including, in circumstances where the Occupational Health Advisor is unable to identify or suggest work place adjustments which would permit the employee to return to work in a sustainable capacity.[251]The claimant’s representative invited the Tribunal to find in fact that the decision to dismiss was a predetermined decision. The Tribunal did not consider that the evidence was sufficient to support such a finding in fact and declined to make the same.[252]On the Findings in Fact made and on consideration of the respective submissions of parties’ representatives, the Tribunal was satisfied that the respondent acted reasonably, in all the circumstances as treating the claimant’s lack of capability, as at 31st January 2025, on the evidence available to it at the time, as a sufficient reason for dismissing him; and the Tribunal holds that the dismissal falls to be regarded as fair in terms of section 98(4) of the Employment Rights Act 1996. Failure to Make Adjustments sections 20 and 21 of the Equality Act 2010[253]The Tribunal found the respondent’s witnesses to be both credible and reliable each giving their evidence in a straightforward and measured manner. The Tribunal accepted the evidence of Mr Black the decision taker, that as at the date of dismissal although the claimant’s role as Site Manager had not changed, the duties of the role and the manner and place in which they required to be discharged had changed with the evolution of the contracted for work through its various phases such that, as at the 31st of January 2025 and for the remaining life of the contract, the duties required to be substantially discharged on site and could not be discharged through home working. The Tribunal further accepted the evidence of the respondent’s witnesses which was to the effect that at the material time no suitable alternative position was available to be offered to the claimant, let it be assumed that he had either been fit to work as at that date or there had been identified, as at that date a further reasonable period of time at the end of which he would be capable of returning, which the Tribunal has not found to be the case.[254]While it was a matter of concession that the second of the PCPs relied upon was one that put the claimant at a substantial disadvantage, that being of dismissal or increased risk of dismissal, the Tribunal considered that no duty to make the asserted and relied upon adjustments of putting in place a phased return to work for the claimant, or of allowing the claimant to work only from home, or of identifying a suitable alternative appointment for the claimant, let it be assumed that it was established that one existed, had arisen as at 31st January 2025, or would arise until such time as the claimant was fit to return to work or there had been identified a reasonable period of time at the end of which he would be fit to return to work and that accordingly, no breach of any such duty, for the purposes of section 20(3), had occurred on the part of the respondents.[255]The Tribunal has separately held that the putting in place of such adjustments as are relied upon would not, in the circumstances which the Tribunal has found established in fact and as at the date of dismissal, have constituted steps that it was reasonable for the respondents to take in order to avoid the substantial disadvantage. The Tribunal accordingly concludes that it has not been established that the respondent discriminated against the claimant in terms of section 21(2) of the EqA. Discrimination arising from Disability section 15 of the EqA[256]In considering and determining the section 15 EqA complaint of Discrimination arising from disability the Tribunal is conscious of the caution contained in O’Brien v Bolton St Catherine’s Academy [2017 ICR 737] which is to the effect that, if the unfavourable treatment complained of is dismissal, the test to be reviewed by the Tribunal in respect of reasonableness in the Unfair Dismissal claim and the section 15(1)(b) test for proportionality will likely lead to the same result, but it is not the case that a dismissal found to be within the range of reasonable responses will certainly be found to be a proportionate means of achieving a legitimate aim (or vice versa).[257]It was not a matter in dispute that the respondent’s aim of managing its business was a legitimate aim for the purposes of section 15 of the EqA, nor that dismissal had a significant adverse impact upon the claimant.[258]The Tribunal has found in fact that at the time of dismissing the claimant,(a) the respondent had a real need to have the duties of his role performed,(b) that the performance of those duties directly impacted upon the release of contracted for payments to the respondent,(c) that the claimant was not fit to return to work at a point occurring some 5 months after his surgery,(d) that no definitive period of time after which the claimant would be fit to return to work had been identified,(e) that the temporary arrangements which had been put in place for the discharge of the claimant’s duties could not reasonably be kept in place for a further indeterminate period notwithstanding the size of the respondent’s undertaking,(f) that there were not available to the respondent at the time alternative courses of action that could have been adopted to avoid or reduce that detriment beyond continuing the temporary arrangements and deferring the taking of a decision for a further indeterminate period of time during by which, no financial benefit would accrue to the claimant, he having already exhausted all right to contractual and or statutory sick pay.[259]On a balancing of the detriment caused to the claimant by his dismissal against the employer’s need to achieve its legitimate aim the Tribunal concluded that the respondent’s decision to dismiss the claimant, in the circumstances, which it has found established, to be appropriate and necessary and, in the circumstances, a proportionate means of achieving the important legitimate aim of managing its business of the Equality Act 2010 and that, accordingly, in terms of section 15(1)(b), the complaint of Discrimination arising from Disability fails.[260]The Tribunal determines that each of the complaints of Unfair Dismissal, Discrimination arising from Disability and Discrimination by reason of Asserted Breach of Duty to Make Adjustments fail, and fall to be dismissed.[261]With a view to doing justice to the totality of the submissions made by parties’ representatives the Tribunal records;(a) that had it found the complaint of Unfair Dismissal to be established as procedurally unfair it would also have held, had a fair procedure been followed, that the claimant would, on the balance of probabilities, have been dismissed within a further short period on or about the expiry of the 6 month point measured from the date of his surgery.(b) That had the complaints of Discrimination for reason of the protected characteristic of Disability succeeded, it would have considered, on the evidence presented, that any award of damages to be made would have sat within the first band of the updated Vento guidelines.