Employment Tribunal Rejects Unfair Dismissal and Disability Claims

OUTCOME: Dismissed

Case Number: 3200419/2024 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

[COMPANY]

On:

20-24 and 27-28 January 2026

(Days 2-4 in person, otherwise by CVP)

Before:

Employment Judge D [NAME]

For the Claimant: [redacted] For the Respondent: [redacted] The judgment of the Tribunal is that: - 1. the claim of direct race discrimination is [APPELLANT] on withdrawal; 2. the claim of failure to make reasonable adjustments is not well founded and is [APPELLANT]; 3. the claim of disability-arising discrimination is not well-founded and is [APPELLANT]; 4. the claim of unfair dismissal is not well-founded and is [APPELLANT].

Case Number: 3200419/2024 2

REASONS 1. Judgment and reasons were given orally on the last day of the hearing. The Claimant asked for written reasons on the day; they are provided below. Procedural history 2. The Claimant, [NAME] [APPELLANT], presented his claim form on 20 February 2024 following an ACAS early conciliation period between 27 December 2023 and 22 January 2024. He had been employed as a [NAME] [NAME] since 2009, transferring to the Respondent by successive TUPE transfers, with his employment ending by dismissal in December 2023.

3. In his ET1 he alleged that his dismissal was unfair because it followed what he described as a biased and improper capability process. There were also claims of race and disability discrimination.

4. The Respondent denied all claims. It asserted that the Claimant was [APPELLANT] for capability (long-term ill-health); that the capability process had been correctly followed; that reasonable adjustments had been considered; and that the dismissal was fair and within the range of reasonable responses. It denied that race played any part in its actions.

5. There was a Preliminary Hearing on 5 August 2024 before EJ [NAME]. The Claimant, who had obtained legal assistance by this stage, sought to clarify the particulars of his discrimination case. No objection was raised by the Respondent; the Judge permitted him to do so and finalised the list of issues.

6. The Judge fixed the case for a four-day hearing in April 2025, which was vacated on the morning of the first day owing to judicial unavailability. A second relisting for June 2025 was then fixed without regard to the parties’ availability. A Preliminary Hearing took place before me on 20 June 2025 (on what would have been Day 1 of the final hearing). I acknowledged that the cancellations had caused significant inconvenience and apologised for the difficulties the parties had experienced.

7. The preliminary hearing itself was affected by technical difficulties. Because the Claimant preferred in person attendance and lacked suitable equipment at home, the arrangement adopted was hybrid, with the Claimant and together in the tribunal room with me and [NAME] [APPELLANT] attending remotely. There were problems with sound and repeated disconnections. I expressed a firm view that a hybrid hearing was to be avoided.

8. I confirmed with the parties that the list of issues for the final hearing remained as set out by [RESPONDENT] [RESPONDENT]. I also dealt with the Respondent’s change of corporate name, noting evidence from [NAME] that the company formerly known as [RESPONDENT] had changed its name to M [RESPONDENT] (Metering) Limited on 1 April 2025, the corporate identity being otherwise unchanged. With the Claimant’s agreement, the Respondent’s name was amended.

Case Number: 3200419/2024 3

9. I made further case management orders and decided that the case should be heard by a Judge sitting alone, emphasising the need to avoid further logistical complications and noting that a single Judge hearing would be more efficient given the case’s history.

10. I fixed a new final hearing for eight days in January 2026; it would be predominantly in person, with the first and last days being conducted by video for case management purposes and for oral judgment). The hearing 11. Apart from some minor housekeeping issues, the parties attended the final hearing ready to proceed. The one outstanding issue was whether the Claimant should be permitted to introduce two short videos into evidence. I refused permission because the evidence was irrelevant to the issues I had to determine.

12. I had a bundle of documents running to 676 pages. I had 93 pages of witness statements. I heard evidence from: 12.1. the Claimant; and on his behalf from: 12.2. [NAME] [APPELLANT] [NAME] ([NAME]). On behalf of the Respondent, I heard from: 12.3. [NAME] [RESPONDENT] ([NAME] [NAME] Manager; [NAME] line manager); 12.4. [NAME] [APPELLANT] ([NAME] [NAME] Manager; Claimant’s line manager from May 2023; involved in the capability process); 12.5. [NAME] [RESPONDENT] ([NAME] [RESPONDENT]); 12.6. [NAME] [APPELLANT] [NAME] ([NAME] Manager; chaired Claimant’s grievance hearing in October 2023); 12.7. [NAME] [APPELLANT] ([NAME] [NAME] Manager; chaired the part-3 capability hearing and took the dismissal decision); 12.8. [NAME] [APPELLANT] (Head of Customer Management; dealt with Claimant’s grievance appeal); 12.9. [NAME] [APPELLANT] (Senior [NAME] Manager; heard the Claimant’s dismissal appeal).

13. Evidence was concluded by lunchtime on Day 4, which was a Friday. I adjourned early because the Claimant asked for time to work on his closing submissions over the weekend. Written submissions were exchanged and lodged by 5 p.m. on Monday afternoon. I began Day 5 of the hearing slightly later, at 11 a.m. on Tuesday, to give the parties additional time to consider their oral submissions, which were limited to 30 minutes each. I then deliberated and gave oral judgment and reasons at 2 p.m. on Day 6.

Case Number: 3200419/2024 4

Findings of fact 14. The Respondent operates in the [NAME] as a contractor providing [NAME] reading and [NAME] [NAME] services for water, gas and electricity [NAME]. Its workforce consists largely of [NAME]-based Metering Representatives who gather consumption [NAME] across defined geographic areas, supported by a management structure of [NAME] Manager’s Assistants, reporting to [NAME]. [NAME] report to [NAME] Managers, who in turn report to [NAME] for either the northern or southern region, and those [NAME] report to the Head of [NAME] [NAME], who in turn reports directly to the Director of the [NAME].

15. On 5 January 2009, the [APPELLANT] (who is [APPELLANT]) began work as a [NAME] [NAME] with [NAME]. His employment subsequently transferred four times under TUPE: to [NAME] in 2010, to [COMPANY] in 2015, to [NAME] in 2017; and finally, to [COMPANY] on 1 August 2022, where he continued to work as a water [NAME] [NAME].

16. The terms and conditions - and the relevant procedures - which applied to the Claimant were contained in a handbook called the Red Book.

17. The [APPELLANT] had had arthritis in both hips since 2001. In 2012, he underwent a total right hip replacement; in 2017 he had a total left hip replacement. The events in 2022 18. On 2 August 2022, following increasing right-sided hip pain, the Claimant attended for an X-ray at [COMPANY]. On 25 August 2022, he met his manager, [NAME] [APPELLANT], to discuss his hip condition. The Claimant says that he showed [NAME] [APPELLANT] the recent X-ray letter and explained that he was experiencing increasing pain. According to the Claimant, [NAME] [APPELLANT] told him that he would pass the details of the meeting on to HR and that someone would get back to him about what help the company could provide. The Claimant says that did not happen.

19. On 30 August 2022, the Claimant raised a grievance by email against [NAME] [APPELLANT], alleging he had been moved to more onerous work despite his hip pain.

20. The grievance outcome, dated 16 December 2022, records the following [133]: ‘I asked if you had asked [NAME] for additional workplace adjustments due to your current hip condition during your meeting with [NAME] on 25th August 2022, you said No. I also asked you do you require any new adjustments right now? You replied “I’ll always be in pain. So long as I just can take my time doing the work. I’m slower and I just take my time. I complete the work they give me, and sometimes they can give me more”. I understand further to your grievance hearing [NAME] has now left the business. I recommend that we arrange for you to attend an [NAME] appointment to establish if additional workplace adjustments can be put in place to support you whilst you awaiting further surgery.’ 21. Meanwhile, on 19 October 2022, while at work, [NAME] [APPELLANT]’s right hip gave way and he was taken to hospital by a colleague, after which he used two crutches and commenced long-term sickness absence, from which he never returned to work.

Case Number: 3200419/2024 5

Line management 22. After a national restructuring exercise in November 2022 the Claimant was placed into the Southeast 9 team. At that point the team had not yet been assigned a permanent [NAME] [NAME] Manager, and [NAME] [NAME], who already managed the neighbouring Southeast 10 team, was temporarily appointed to manage both teams. He was the Claimant’s [NAME] line manager from November 2022 onwards. 23. [NAME] [NAME] was appointed as the permanent [NAME] [NAME] Manager for the Southeast 9 team in May 2023, at which point she became the Claimant’s formal line manager. However, [NAME] [APPELLANT] remained involved to provide continuity and oversight, particularly in relation to the Claimant’s long-term sickness absence and the processes arising from it.

24. The Respondent’s escalation route required staff to raise any concerns first with their [NAME] [NAME] Manager, then - if the issue concerned that manager or could not be resolved - with the [NAME] Manager or HR, but never directly with the senior leadership team (such as the Director of [NAME] [NAME]). This was a simple, well-established hierarchy intended to ensure orderly resolution of issues; it is typical of arrangements in other large organisations. Events in 2023 25. On 5 January 2023, the Claimant had an [NAME] assessment in relation to his hip. The report of the same date recorded that the Claimant remained unfit for work due to persistent right-hip pain following his earlier joint-replacement surgery; he required two crutches for mobility, was ‘flat- bound’, could not tolerate walking or prolonged standing, and was awaiting further orthopaedic assessment with the likelihood of revision surgery. It noted that no workplace adjustments were feasible at that stage, that any return to work would depend on surgical intervention and a recovery period was likely to last 2-4 months. After the operation any return to work should be phased. The author expressed the view that he might be considered disabled within the meaning of the Equality Act.

26. It was the Respondent’s practice that, after [NAME] assessments, the line manager would conduct a review meeting. On 24 January 2023, [NAME] [APPELLANT] conducted such a meeting with the Claimant. The Claimant agreed that the [NAME] report reflected his position and that there was no return-to-work date, pending consultant advice on 26 January 2023. The Claimant told [NAME] [APPELLANT] on that date that he required hip replacement surgery. They then had regular welfare calls between January and April 2023.

27. Although they did not know each other personally, their working relationship was pleasant: [NAME] [APPELLANT] was keen to support the [APPELLANT] return to work; the [APPELLANT] was an experienced [NAME] [NAME], who he believed would be an asset to the team.

Case Number: 3200419/2024 6

The Claimant’s pay issues in 2023 28. An issue about the Claimant’s pay arose in the spring of 2023; I deal with it briefly because, although it is part of the context, it is not relevant to the legal claims in the case.

29. On 28 April 2023, the Claimant complained to [NAME] [APPELLANT] about receiving half pay without notice. On 3 May 2023, the [NAME] notified the Claimant that he had been overpaid £1,500 in respect of sick pay. On 4 May 2023, HR wrote to the Claimant to tell him that his sick pay entitlement had been exhausted.

30. On 16 May 2023 and again on 18 May 2023, the Claimant emailed [NAME] [APPELLANT] pressing the pay issues and, on the latter date, copied senior management. This marked the start of the Claimant escalating his concerns to senior management within a short period of raising them, without giving his direct management time to resolve them. Common sense ought to have suggested that this was a counter-productive step to take: the Directors of the company were never going to involve themselves in day-to-day complaints of this sort, but the act of escalating the issue to them was bound to be an irritant to the people who had the responsibility of sorting it out - and so it proved.

31. I accept [NAME] [APPELLANT] evidence that the Claimant was warned on several occasions, including by email on 21 August 2023, not to escalate matters prematurely.

32. On 19 May 2023, the Claimant received an email from [NAME] [APPELLANT] confirming that his entitlement to half pay did not expire until 10 August 2023 and stating that all other issues relating to his pay were closed. The [NAME] reports in June 2023 33. On 1 and 5 June 2023, two further [NAME] assessments took place (on [NAME] [NAME] referral): one addressed stress/mental health; the other musculoskeletal issues.

34. The 1 June report describes stress linked to the sick-pay issues, an increase in alcohol consumption, and the absence of any other significant mental-health concerns. It concludes that no short-term workplace adjustments were feasible before surgery and that a return to work would only be possible following operative [APPELLANT] and a recovery period; light duties might be achievable after approximately six weeks, with a full recovery taking several months.

35. The 5 June report confirmed that the Claimant remained unable to bear weight through his right leg and continued to suffer constant right-hip pain, caused by loosening of his hip prosthesis. He was unfit for all work; no short-term adjustments were possible; only after surgery and rehabilitation could a phased return be considered, with recovery estimated at between three and six months.

36. On 19 June 2023, an [NAME] review call occurred by phone with [NAME] [APPELLANT] leading, [NAME] [COUNSEL] taking notes; the Claimant’s union representative attended. The Claimant confirmed the accuracy of the [NAME] reports, the lack of an operation

Case Number: 3200419/2024 7

date, indeed of any further medical appointments; the Claimant was now prescribed codeine. He explained that he spent most of the day lying in bed as this was the most comfortable position. No return-to-work date was identified; it was agreed that any return would require a phased process, including a mentor in the first week and further training. Weekly welfare calls were scheduled and the Claimant agreed to provide the operation date once received.

37. The Claimant had been absent continuously for eight months, had undergone three [NAME] assessments, but there was no prospect of a return-to-work date. [NAME] [NAME] view was that, even if surgery were arranged immediately, the Claimant would still require up to a further six months’ recovery. Although he had deliberately avoided initiating a formal capability process in the hope of retaining the Claimant, he now sought advice from [NAME] [APPELLANT] of [NAME]. [NAME] [NAME] concluded that a formal capability process should be started. The move to the formal capability stage is unsurprising, indeed it probably could have been commenced earlier. The Respondent’s capability policy 38. The Red Book contains the capability policy which applied to long-term sickness absence. ‘Termination on Grounds of Capability The decision to terminate a [NAME] on grounds of capability is usually made by the Head of [NAME] [NAME]. When deciding whether to terminate a [NAME] due to illness it is necessary to take the following into account: • All medical evidence provided • The likelihood of an improvement in health and subsequent attendance • The availability of suitable alternative work Where reports have been obtained and a consideration of reasonable adjustments has been made and discounted, and there are no other options available, a decision to terminate may be made. However, no decision to dismiss will be made without giving the employee the opportunity to appeal. Equally if new information comes to light before any appeal process is concluded, this will also be taken into account. Where dismissal action is being considered, the employee will be invited to attend a meeting with a Senior Manager and a representative from the [NAME] [NAME] Department. The employee will be given a minimum of three clear working days written notice of the date of the meeting and have the right to be accompanied at the meeting by a colleague or a [NAME] representative. The reasons for needing to terminate the employee’s [NAME] will be explained in detail and the employee will be entitled to challenge any of the reasons or put forward any new evidence which would demonstrate that the employee was capable of returning to work in the near future. The employee has the right to appeal against dismissal on the grounds of capability and this should be made in writing within 7 days of receiving the confirmation of termination of their [NAME] to the HR Manager.’ 39. This policy was partially outdated by the time of the events in question, most notably the requirement that a Head of HR take the decision to dismiss; that role no longer existed.

Case Number: 3200419/2024 8

40. The practice had developed that managers, including [NAME] (who were two levels up from [NAME] readers) such as [NAME] [NAME], were authorised to take capability decisions supported by [NAME]. The start of the capability process 41. On 22 June 2023, [NAME] [APPELLANT] phoned the Claimant to notify him that a formal capability process would commence.

42. It was from this point that the Claimant’s manner towards [NAME] [APPELLANT] became markedly less co-operative and, on occasions, verged on hostility. The first capability hearing 43. On 30 June 2023, the Respondent sent the Claimant (by recorded-[NAME] letter and email) a formal invitation to a capability hearing on 6 July 2023, enclosing a management report. The Claimant says he received short notice; in fact, he had not checked his email and expected a text ‘heads-up’.

44. On 5 July 2023, the Claimant phoned to say that he had just received the letter from the meeting scheduled for the next day and he could not attend. [NAME] [NAME] proposed rescheduling and offered two possible dates, 19 or 20 July 23.

45. On 6 July 2023, the Claimant phoned [NAME] [APPELLANT] to say that 19 July would be fine. [NAME] [NAME], who was on a train, then said that the meeting would take place on 12 July 2023; he had discovered that he had availability then (although he meant to say 13 July). The Claimant responded with anger and hostility; he accused [NAME] [APPELLANT] of bullying him. [NAME] [APPELLANT] described him as ‘incandescent’. The Claimant then hung up on him. [NAME] [APPELLANT] evidence was corroborated by other witnesses, to whom he spoke afterwards.

46. The Claimant then emailed [NAME] [APPELLANT], again copying in senior leadership, including the Respondent’s [NAME] Director and the Director of [NAME] [NAME]. Given that the disagreement was about scheduling a meeting, the Claimant’s actions in escalating to senior management were completely disproportionate.

47. On 12 July 2023, the Respondent confirmed by letter a rescheduled meeting on 19 July 2023 at the [NAME], which was a convenient location for the Claimant.

48. The meeting went ahead, with [NAME] [APPELLANT] chairing and [NAME] [APPELLANT] taking minutes. The Claimant was accompanied by his union representative, who could have taken notes, but seems not to have done so. [NAME] [APPELLANT] and [NAME] [APPELLANT] both state that the [APPELLANT] repeatedly said his position was ‘same as last meeting’; there was no operation date and adjustments would not help. There was a discussion about alternative roles; the Claimant said he could not access the relevant site. He discounted a phased return or reduced hours as ineffective and said that upon any return he would need retraining and support.

49. The outcome was to review the position again in four weeks. No sanction was imposed; I consider that showed a continued willingness to retain the Claimant, rather than the biased approach which the Claimant alleges.

Case Number: 3200419/2024 9

50. On 10 August 2023, the Respondent sent the outcome letter from the first capability hearing. The passage relating to alternative roles reads as follows: ‘Suitable Alternative Employment You stated you could not access Stay Connected but you had not looked at alternative roles as you planned to come back. I advised it would be beneficial to look and confirmed to you that I would request a pairing code for you to gain access to Stay Connected. You also have the option to input the hyperlink from the invite letter into any search engine as it is not solely set up via the company's intranet.’ 51. The Claimant never looked at the availability of alternative roles, at this or any other point before his dismissal.

52. The minutes of the meeting were sent to the Claimant on 16 August 2023; he challenged their accuracy to [NAME] [NAME] the next day; [NAME] [NAME] replied on 21 August 2023 that the notes were a correct, non-verbatim summary.

53. On 21 August 2023, the Claimant emailed a senior director seeking the removal of [NAME] [NAME] and [NAME] [NAME] from his capability process. The second capability hearing 54. On 7 September 2023, the Claimant was invited to a part-two capability hearing listed for 12 September 2023. It took place in person. The Claimant’s continued absence without a surgery date and limited scope for adjustments was recorded. The Claimant said he had a pre-op appointment on 20 September 2023. The outcome was to review the position in four weeks and to consider a third meeting if there was no progress.

55. On 15 September 2023, the Claimant emailed [NAME] [APPELLANT] about a holiday pay issue; he blind-copied a senior director. As I have already noted, that was ill- advised.

56. On 21 September 2023, [NAME] [APPELLANT] referred the Claimant for his fourth [NAME] assessment since January of that year. It took place on 26 September 2023. The report records that there had been no clinical improvement in the Claimant’s condition since the earlier assessments in June 2023; he remained reliant on two crutches, continued to experience significant mobility limitations, and had still not been given a date for his revision hip surgery; he had become deconditioned due to sustained reduced physical activity; a return to work was unlikely before at least three to four months after surgery, and potentially longer depending on complications, with no meaningful workplace adjustments identified that could facilitate a return prior to operative intervention. The Claimant’s grievance 57. On 26 September 2023, the Respondent issued the outcome letter following the second capability hearing. The letter noted that a return to work in the near future was highly unlikely. It recorded that the Claimant had not accessed the [NAME] and had still not explored alternative roles, despite being reminded that access to vacancies was available outside the intranet. A further [NAME] referral was arranged, and the Claimant was told that if

Case Number: 3200419/2024 10

he could not return within the next four weeks the process would move to a third capability hearing.

58. In the final paragraph [NAME] [NAME] wrote: ‘I must also make you aware that you have previously been warned about inappropriately emailing senior tiers of management into conversations and asked to stop this practice. You have continued to do this unheeded, and this will be addressed as a formal conduct concern as failure to comply with a reasonable management instruction and dealt with as part of a formal process.’ 59. This letter becomes the core of the Claimant’s later grievance that the managers were ‘threatening and intimidating’ a characterisation [NAME] [NAME] [NAME] later rejected after investigation. I agree with her assessment: the Claimant had previously been warned not to escalate day-to-day concerns to senior management; he had ignored the instruction; the matter could well have been treated as a conduct concern. The Claimant objected strongly to this paragraph, in part because he maintained that its contents were not stated at the meeting. He may well have been right about this; the letter does not state that it was said of the meeting; there was nothing inappropriate in raising it in the letter; the tone was neither bullying nor intimidating.

60. On 27 September 2023, the Claimant emailed objecting to the final paragraph of the 26 September outcome letter and sought its removal, and when no swift correction followed, he raised a grievance on 1 October 2023 against [NAME] [NAME] and [NAME] [NAME]. 61. [NAME] [NAME] advised [NAME] [NAME] to pause the capability process while the grievance was investigated, which he did.

62. On 6 October 2023, during a welfare call, [NAME] [APPELLANT] records that the Claimant reported that there had been no progress on surgery scheduling; there is no dispute that, by then, no operation date had been provided.

63. On 11 October 2023, [NAME] [APPELLANT] conducted the Claimant’s grievance hearing by video with his union representative present. The Claimant discussed his concerns about minute-keeping, alleged intimidation, focusing in particular on the reference to escalation in the last paragraph of the outcome letter. 64. [NAME] [NAME] interviewed [NAME] [NAME] and [NAME] [NAME] on 18 October 2023. In my view, she investigated thoroughly. 65. [NAME] [NAME] found no evidence of bullying or discrimination. She concluded that management’s instruction about the timing of escalation was reasonable. She explained in her witness statement: ‘My view was that whilst the Claimant had never been prevented from escalating, he had very clearly, on several occasions, been asked to allow time to address his query prior to him virtually instantly escalating it. The Claimant’s own words in the grievance hearing had as much as confirmed this as well. I felt that it was a reasonable management request being made by both [APPELLANT] and [APPELLANT] in requesting that the Claimant give them reasonable time to address his queries and issues and allow them sufficient time to perform any escalation of their own that they may require in so doing. On the evidence, the Claimant was clearly and repeatedly ignoring and discarding this reasonable management request.

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On the basis of that, I felt that it was for this reason alone that the final paragraph, with which the Claimant had taken such issue, had been added to the outcome letter of the 12 September 2023 capability 2 hearing. I did not find its inclusion the result of intimidation, bullying or discrimination.’ 66. The Claimant received the grievance outcome on 17 November 2023, which was that [NAME] [NAME] and [NAME] [NAME] had not been at fault. 67. [NAME] [NAME] attended the Tribunal hearing to give evidence; the Claimant chose not to cross examine her. The third capability hearing 68. From 1 November 2023 onwards, [NAME] [APPELLANT] sought to contact the Claimant about arranging both an [NAME] review and a part-three capability hearing. The Claimant refused to engage with him, pending the outcome of his grievance. He did not take [NAME] [APPELLANT] calls or reply to his emails or texts.

69. The Claimant appealed the grievance outcome on 20 November 2023.

70. On 27 November 2023, [NAME] [APPELLANT] emailed and attempted to telephone the Claimant about an [NAME] review meeting for 30 November 2023 and a part-three listing.

71. On 30 November 2023, the [NAME] review meeting proceeded without the Claimant joining, despite texts and emails during a ten-minute grace window, and [NAME] [APPELLANT] closed the meeting at 11:30 a.m. The Claimant replied minutes later stating he had not been informed about the meeting; that was plainly not the case; I find he had chosen not to attend.

72. On 1 December 2023, the Respondent invited the Claimant to a capability hearing on 7 December 2023. On 5 December 2023 the Claimant asked to reschedule owing to a medical appointment. He also asked that [NAME] not chair the hearing and that [NAME] be substituted. The substitution was granted and consent for [NAME] [NAME] to review the [NAME] reports was then sought.

73. On 7 December 2023 and again on 12 December 2023, the Respondent relisted the part-three hearing, first to 12 December and then, after another hospital-appointment clash, to 18 December 2023. 74. [NAME] [NAME] was later drafted in purely as a notetaker when the original notetaker became unavailable. The [APPELLANT] maintains that the presence of [NAME] [APPELLANT] rendered the process unfair. The Claimant also complains that no one from HR was present at the meeting and that [NAME] [NAME] was too junior to conduct the meeting and to take the decision to dismiss.

75. On 18 December 2023, the part-three capability hearing took place in person at the [NAME]. The [APPELLANT] had been warned of the possibility of dismissal. He had been repeatedly informed of his right to be accompanied; at the beginning of the meeting, he confirmed that he was unaccompanied; he did not ask for a postponement, either before or at the meeting.

76. The Claimant confirmed that his medical status was ‘getting worse’. He declined to answer when asked what a typical day for him looked like. He confirmed that he still had not been given a date for an operation; when asked what [APPELLANT]: 3200419/2024 12

he was undergoing in the [NAME], he replied ‘no comment’. When asked by the Respondent how frequently he was in receipt of [APPELLANT], the Claimant again replied, ‘no comment’. When asked what reviews were in place to ensure the [APPELLANT] was effective, he replied ‘no comment’. He agreed with the contents of the September 2023 [NAME] report.

77. The Claimant stated that he had ‘had no support’ from the Respondent; he confirmed that he had not used the Respondent’s [NAME] staff ‘support’ service because he felt there was ‘no point’. He confirmed he was not in a position to consider or discuss a phased return to work and had nothing further he wished to add or discuss. When asked again if he had considered the vacancies on the Respondent’s website, the Claimant stated that he had not looked at the site because he was ‘coming back’. When asked again why, after 14 months continuous long term sickness absence, the [APPELLANT] had not considered other roles with the Respondent, he replied he intended to come back to a role that ‘suits his needs’. He stated his medication status was ‘irrelevant’, and that it could be 6 months before he was fit to return once he had received his operation.

78. The Claimant then stated that ‘if you decide to get rid of me then so be it. I am not getting paid, so it is neither here nor there’.

79. After two breaks during which [NAME] [NAME] consulted [NAME] [APPELLANT] (senior ER adviser), she informed the Claimant that she had decided to dismiss him for reasons of capability. She informed him of his right to appeal. The dismissal letter and the Claimant’s appeal against dismissal 80. On 20 December 2023, [NAME] [APPELLANT] sent the dismissal outcome letter to the Claimant, confirming termination, PILON, holiday pay, and company-property return. The Claimant immediately signalled an intention to appeal.

81. On 27 December 2023, [NAME] [APPELLANT] invited the Claimant to an ill-health dismissal appeal hearing, explaining the process and the right to be accompanied.

82. On 11 January 2024, [NAME] [APPELLANT] heard the Claimant’s appeal against dismissal by Teams, with the Claimant accompanied by his union representative, and recorded that the Claimant alleged the capability process had been unprofessional from start to finish, that [NAME] [NAME] had no authority to dismiss, and that the presence of [NAME] [NAME] ambushed him. The appeal against the grievance decision 83. On 15 January 2024, the Claimant’s appeal against the outcome of his earlier grievance (heard by [NAME] [NAME] in October 2023) was heard by [NAME] [APPELLANT], who noted that the Claimant repeatedly returned to capability-related issues instead of the grievance grounds. The outcome of the two appeals 84. On 19 January 2024, [NAME] [NAME] issued his written outcome rejecting the appeal against dismissal, finding that the Respondent had followed the applicable

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capability process notwithstanding the outdated Red Book wording about HR involvement, that [NAME] evidence had been fully considered, that alternative work had been explored, and that a return remained too uncertain after fifteen months’ absence.

85. On 20 January 2024 and 24 January 2024, the Claimant received respectively the dismissal appeal outcome and the grievance appeal outcome. [NAME] [NAME] 24 January letter concluded that the email of 21 August 2023 had already instructed the Claimant about escalation routes. In his judgment the reference in the 26 September 2023 capability outcome letter did not constitute bullying or intimidation. Time limits 86. Given the date the claim form was presented and the dates of early conciliation, a complaint about something that happened before 28th September 2023 may not have been brought in time.

87. The Claimant had not addressed the issue of time limits in his witness statement. I gave him an opportunity to do so at the beginning of his oral evidence. The Claimant confirmed that he was seeking to argue that he asked for adjustments in August 2022. He confirmed that he raised a grievance on 30 December 2022. He accepted that he knew about Tribunals and knew that they dealt with discrimination claims. He was a member of [NAME] and had access to legal advice but did not seek any. He did not do any legal research about it because he said by then his health had deteriorated, he was still working for the company and so it never occurred to issue a claim; he did not know about time limits. The law Failure to make reasonable adjustments: s.20-21 EqA 88. S.20 EqA provides as relevant: (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not

Case Number: 3200419/2024 14

disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

89. S.21 EqA provides as relevant: (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. … 90. The [NAME] Commission [NAME] on Employment (2011) (‘the [NAME]’) at para 6.16 emphasises that the purpose of the comparison with persons who are not disabled is to determine whether the disadvantage arises because of the disability and that, unlike direct or indirect discrimination, there is no requirement to identify a comparator or comparator [RESPONDENT] whose circumstances are the same or nearly the same as the disabled person’s.

91. In relation to the employer’s actual or constructive knowledge of the employee’s disability, and of the disadvantage, sch.8, Part 3, para 20(1)(b) EqA provides that: (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— … (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.

92. The correct approach for the Tribunal in determining a reasonable adjustments claim is set out in Environment Agency v Rowan [2008] ICR 218 at [27] (the reference to sections is to sections of the Disability Discrimination Act 1995): ‘In our opinion an employment tribunal considering a claim that an employer has discriminated against an employee pursuant to section 3A(2) of the Act by failing to comply with the section 4A duty must identify: (a) the provision, criterion or practice applied by or on behalf of an employer, or (b) the physical feature of premises occupied by the employer, (c) the identity of non-disabled comparators (where appropriate) and (d) the nature and extent of the substantial disadvantage suffered by the claimant [...] Unless the employment tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.'

93. The burden is on the Claimant to show the PCP, to demonstrate substantial disadvantage, and to make out a prima facie case that there is some apparently reasonable adjustment which could have been made (and that, on the face of it, there has been a breach of the duty): [NAME] v Latif [2007] IRLR 579 at [45] and [54]. If the PCP contended for was not actually applied, the claim falls at the first fence: [NAME] v South Warwickshire NHS Foundation Trust [2018] EWCA Civ. 2235 at [40].

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94. In NCH Scotland v [NAME] 0010/06 the EAT concluded that the duty to make reasonable adjustments is not triggered until the Claimant indicates that he or she was intending or wishing to return to work. HHJ McMullen stated: ‘We agree that a managed programme of rehabilitation depends on all the circumstances of the case, but it does include a return to work date. And certainly, if additional management and supervision is to be required, they must be arranged in advance and not in a vacuum. Similarly, if additional costs were to be incurred by (not this case) the purchase of new equipment to counteract the effect of the environment on the disabled person, there would be no need to spend that money in advance of a clear indication that the Claimant was returning. In our judgment, applying the trigger approach… it was not reasonable for the Respondent to pursue the possibilities which the Tribunal noted until there was some sign on the horizon that the Claimant would be returning.’ 95. The reasonableness of an adjustment falls to be assessed objectively by the Tribunal: [NAME] v Wiltshire County Council [1998] IRLR 352. The focus is on practical outcomes: per [NAME] in [COMPANY] v Ashton [2011] ICR 632 at para 24: ‘The focus is upon the practical result of the measures which can be taken. It is not – and it is an error – for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reason.’ Discrimination arising from disability: s.15 EqA 96. S.15 EqA provides as follows: (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 [APPELLANT] 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 [NAME] had the disability.

97. The correct approach to a claim of this sort was considered by the Court of Appeal in City of York Council v Grosset [2018] IRLR 746 per Sales LJ (at para 36 onwards): ‘36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues: (i) did [NAME] treat B unfavourably because of an (identified) "something"? and (ii) did that "something" arise in consequence of [NAME] disability.

37. The first issue involves an examination of [NAME] state of mind, to establish whether the unfavourable [APPELLANT] which is in issue occurred by reason of A's attitude to the relevant "something" ...

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38. The second issue is an objective matter, whether there is a causal link between [NAME] disability and the relevant "something" ….’ 98. The ‘something’ that causes the unfavourable [APPELLANT] need not be the main or sole reason but must have at least a significant influence on the unfavourable [APPELLANT], and so amount to an effective reason for or cause of it ([NAME] v NHS England [2016] IRLR 170 per [NAME] at [31]). It is not enough if the disability reason is merely the background to the [APPELLANT]; it is not a ‘but for’ test (Leicester City Council v Gibbin [2024] EAT 138).

99. The [NAME] offers the following explanation of what is meant by ‘something arising in consequence of disability’ for the purposes of s.15 EqA: [5.9] The consequences of a disability include anything which is the result, effect or outcome of a disabled person's disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet. 100. The meaning of ‘unfavourable [APPELLANT]’ was considered by the Supreme Court in Trustees of Swansea University Pension and Assurance Scheme v [NAME] [2019] ICR 230 (at para 27): ‘… in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the [NAME] to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.’ 101. As for the knowledge requirement in S.15(2) EqA, while the statute does not require knowledge of the precise diagnosis of the disability in question, it does require knowledge (actual or constructive) of the facts constituting the disability. In other words, that the individual is suffering from a physical or mental impairment which has substantial and long-term adverse effects on his or her ability to carry out normal day-to-day activities ([NAME] at [69]). 102. It is then necessary to look to the employer’s defence of justification. S.15(1)(b) EqA provides that the unfavourable [APPELLANT] may be justified, if it is a proportionate means of achieving a legitimate aim. To be proportionate, the conduct in question must be both an appropriate means of achieving a legitimate aim and a reasonably necessary means of doing so ([NAME] v [NAME] & Rossendale College & Others [2001] ICR 1189 CA). 103. Justification requires the Tribunal to conduct an objective balancing exercise between the discriminatory effect and the reasonable needs of the employer ([NAME] v Manpower Services Commission [1982] ICR 661 CA per Stephenson LJ at 674B-C, and Land Registry v [NAME] & Others UKEAT/0149/14 at [8- 9]). It will be relevant for the Tribunal to consider whether any lesser measure might have achieved the employer's legitimate aim ([NAME] v Secretary of State for Justice [2014] ICR 472).

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Unfair dismissal 104. S.94 Employment Right Act 1996 (‘ERA’) provides that an employee with sufficient qualifying service has the right not to be unfairly [APPELLANT] by his employer. 105. S.98 ERA provides so far as relevant: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it –

(a) relates to the capability or qualifications of the employee for performing work of the kind for which he was employed by the employer to do […]

(3) In subsection 2(a) –

(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality […] (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative [NAME] 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. 106. In this case the reason relied upon by the Respondent is capability, which is defined as including ill health. A fair procedure by reason of capability would normally, depending on the circumstances, involve consultation with the employee; ascertaining the up-to-date medical position; an opportunity to improve attendance; and, where appropriate, considering the availability of alternative employment. 107. In judging the reasonableness of the employer’s conduct, the Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. It is recognised that there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another. If the dismissal falls within that band, then the dismissal is fair; if it falls outside that band, it is unfair.

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108. In a capability case, the EAT held in [NAME] v City and County of Swansea EAT0561/03 at [67], that the range of reasonable responses test applies equally to the way that an employer informs themselves of the true medical position, applying the Court of Appeal’s decision in [COMPANY] v Hitt [2003] ICR 111. The employer is not required to ‘leave no stone unturned’. 109. It is also well-established that if an employee refuses to cooperate in providing medical evidence, the employer is entitled to base its decision on the facts available, even if those facts are insufficient to give the full medical position. For example, in Elmbridge Housing Trust v O'Donoghue [2004] EWCA Civ. 939 it was fair for the employer to dismiss after 15 weeks' absence where the employer had waited for eight weeks for the employee to consent to their obtaining medical evidence and the employee had not provided that consent. 110. As to the decision to dismiss, the issue is not whether, objectively speaking, the employee was or was not capable of remaining in employment, but rather whether it was within the range of reasonable responses to treat the employee’s ill-health as sufficient grounds for their dismissal. The EAT in DB Schenker Rail (UK) [COMPANY] v Doolan [2010] UKEAT/0053/09 noted how easy it can be for Tribunals to fall into the substitution mindset in cases of ill-health. Tribunals must therefore guard against the temptation to test matters according to what they would have decided if they had been in the employer's shoes. 111. As to whether the employer can be expected to wait any longer for the employee to recover, in [NAME] v [NAME] St Catherine's Academy [2017] EWCA Civ. 145, Underhill LJ made the following observations at [36]: ‘The argument "give me a little more time and I am sure I will recover" is easy to advance, but a time comes when an employer is entitled to some finality. That is all the more so where the employee had not been as co-operative as the employer had been entitled to expect about providing an up-to-date prognosis.’ Conclusions: direct race discrimination (s.13 EqA) 112. The [APPELLANT] formally withdrew his claim of race discrimination during the hearing; it is [APPELLANT]. Conclusions: disability Did the Claimant have a physical impairment: essential thrombocythemia and/or impairment of the right hip? 113. The [APPELLANT] confirmed at the hearing that he is not relying on essential thrombocythemia as a disability in these proceedings. 114. The Respondent confirmed at the hearing that it conceded that the Claimant’s right hip impairment amounted to a disability at the material time. Conclusions: reasonable adjustments (ss.20 and 21 EqA) 115. I understood from the list of issues that the Claimant’s reasonable adjustments claim concerned adjustments which he said ought to have been made in 2023 to avoid his dismissal. The framing of the reasonable adjustments in the list of issues supports that understanding: each of them was advanced in the context

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of the Respondent’s decision-making during the latter stages of the capability process, and all were directed towards facilitating a return to work or otherwise preventing the need for dismissal. 116. In his oral evidence, the Claimant unexpectedly suggested that his reasonable adjustments claim related back to events in August–December 2022, rather than arising solely from the later capability process. He stated that at a meeting on 25 August 2022 he asked his manager, [NAME] [NAME], what the company could do because his hip had come loose. He said that the Respondent never followed up with any adjustments. He explained that he subsequently raised a grievance because, instead of assisting him, the Respondent allegedly sent him out to do harder work. 117. The [APPELLANT] pleaded case in his ET1 did not include any allegation arising from the 2022 matters.

Accordingly, those matters were not before the Tribunal. Absent an application to amend, the Tribunal cannot enlarge the scope of the pleaded case to include those historic matters. 118. Any such claim would be long out of time. They accrued more than a year before the claim form (20 February 2024), and more than three years before the hearing (January 2026). There is no continuing act to bridge the gap between August 2022 and December 2023; on the contrary, there is an intervening act, which was the further, sudden deterioration in the [APPELLANT] hip on 19 October 2022, which led to his being signed off on long-term sickness absence; there was nothing capable of bringing the events in 2022 within the primary limitation period. 119. As for whether time should be extended, the Claimant had knowledge of the relevant facts of what happened in 2022 at the time, took internal steps (including a grievance), had assistance from his [NAME] and provided no good reason for the delay. [NAME] [NAME] had already left the company by the time of the grievance. In those circumstances, and given the very substantial lapse of time, an extension would not be just and equitable. 120. Finally, the Claimant accepted that he had not asked for anything specific; rather, he said that the only thing he needed was more time. He accepted that he had adjusted his own working pace and that the Respondent had not stopped him from doing so. Therefore, even if the allegation went forward, all reasonable adjustments had already been made. 121. I return now to the Claimant’s pleaded case on reasonable adjustments. Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? 122. From August 2022 the Claimant told managers, including [NAME] [APPELLANT], that his right-hip condition caused significant mobility problems, supported by the August 2022 medical letter advising avoidance of weight-bearing and prolonged standing. Through 2023 the Respondent received successive [NAME] reports confirming a hip impairment requiring complex surgery and stating that he could not perform normal duties pending that operation and recovery. By December 2023 the Claimant had been absent for over a year with the same condition, repeated surgical cancellations, and no foreseeable return date. On these facts,

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the Respondent plainly had sufficient information to understand that there was a long-term impairment with substantial adverse effects. It had actual knowledge for the purposes of the reasonable adjustments and disability-arising claims. Did the Respondent have the following PCPs: PCP1: A requirement for employees to attend regularly for work; PCP2: A requirement for employees not to take extended period(s) of sickness absence. 123. The Respondent plainly applied a PCP requiring employees to attend work regularly. That expectation is inherent in most contracts of employment. 124. I do not find that there was a separate PCP requiring employees not to take extended periods of sickness absence. Although absence triggers existed and the Respondent monitored attendance, there was no rigid requirement prohibiting extended sickness absence. Rather, the Respondent approached long-term absence on a case-specific and flexible basis.

Accordingly, I conclude that PCP2 is not made out. Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability? 125. The requirement to attend work regularly put the Claimant at a more than minor or trivial disadvantage because his hip condition prevented reliable attendance until surgery. A person without his disability would not face these barriers. 126. I am satisfied that the Respondent knew that the Claimant was likely to be placed at the disadvantage. What steps could have been taken to avoid the disadvantage? The Claimant suggests: (1) to allow the Claimant to remain on sickness absence until he had his operation; (2) to provide the Claimant with light duties for a limited period; and (3) to provide the Claimant with suitable alternative employment. Allowing the Claimant to remain in employment until he had his operation 127. During his evidence on Day 2, while I was exploring the substance of the reasonable adjustments claim, I mentioned the first proposed adjustment in the list of issues: that the Respondent should allow him to remain on sickness absence until he underwent surgery. The Claimant immediately said that he had never said that at the time; he had said that dismissal would be acceptable provided the proper procedure was followed. 128. I approached that statement with caution, given the Claimant is a litigant in person. The fact that an adjustment was not sought at the time does not prevent the Claimant from arguing in these proceedings that it ought reasonably to have been made. I decided to consider whether keeping the Claimant on sick leave would have been a reasonable adjustment.

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129. By the date of dismissal on 18 December 2023, the Claimant had already been absent for approximately fourteen months. Throughout that period the Respondent had been unable to secure any reliable indication of when the operation would take place. In his evidence, the Claimant accepted that he had experienced repeated cancellations in 2023 and that, as at the final meeting, he still did not have a date. Even once the operation occurred, his own evidence indicated that the recovery period was uncertain, variously estimated in different [NAME] reports as between three and six months or potentially longer, depending on how the procedure went. 130. His prolonged absence had a material impact on the business: the team’s full-time equivalent headcount was reduced while still bearing responsibility for the Claimant’s workload; agency cover was imperfect and costly; and the failure to maintain staffing levels risked penalties from [NAME] for unmet targets. Although the Claimant had moved onto nil pay by the time [APPELLANT], if he had remained ‘on the books’, management [NAME] would still have to be allocated to maintain contact, carry out welfare checks and deal with any issues the Claimant might raise. In his case that had historically included multiple formal grievances, including two grievances and two appeals during his long- term sickness absence. 131. Against that background of a long, indeterminate absence, repeated postponements, and continuing operational strain, in my judgment it would not have been reasonable to require the Respondent to extend the period of sickness absence indefinitely while awaiting an operation and an uncertain recovery thereafter. Light duties 132. Turning to the question of light duties, the Claimant accepted in cross-examination that during the relevant period he was using two crutches, was unable to walk without assistance, and could not carry out the core functions of his role, which involved travelling between properties, walking significant distances, and bending or twisting to access and read meters. The [NAME] evidence was unequivocal: each report confirmed that no adjustments could be made to his substantive [NAME]-reading duties that would enable a return prior to surgery and recovery. 133. When pressed to identify what ‘light duties’ he had in mind, the Claimant suggested at one stage that the Respondent could have provided him with a bicycle so that he could perform [NAME] readings without walking, cycling past buildings and collecting readings remotely via Bluetooth. With his limitations he could not possibly have pedalled a push bike. I think perhaps he was referring to the period before October 2022. 134. The Claimant mentioned the possibility of working from home. He did not suggest any specific work that could have been performed remotely. I asked him, when he was cross-examining [NAME] [NAME], whether he was going to put to him that there was office work he could do from home; the Claimant replied that he was not. The Respondent’s witnesses were clear that no such work existed which he could perform. I accept that evidence.

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135. I have concluded that there were no light duties which could reasonably have been offered by way of an adjustment in late 2023. Suitable alternative employment 136. The Respondent did, on several occasions, direct the Claimant to the available internal vacancies and provided him with the means to review them online. During the capability process, [NAME] [APPELLANT] repeatedly encouraged the Claimant to look at alternative roles through the Respondent’s job site, making clear that he could access vacancies either through the internal intranet or via an external website. 137. The Claimant made no attempt to search the internal job site, nor did he attempt to find other positions within the business which might have been compatible with his restrictions. 138. More significantly, the Claimant went further and stated that he did not wish to consider alternative employment. In the minutes of the capability meetings and in the oral evidence before me, he confirmed that he was not interested in other positions. His evidence was that he wanted to return to his [NAME] reading role once he had recovered from surgery; at no point had he contemplated other roles. 139. In those circumstances, I am satisfied that there was no alternative role which was both available and acceptable to the [NAME]. 140.

Accordingly, the claim of failure to make reasonable adjustments is not well- founded and is [APPELLANT]. Conclusions: disability-arising discrimination (s.15 EqA) 141. This is a case where the first two limbs of the claim are easily met by the Claimant: [redacted] [APPELLANT] because of his long-term sickness absence, which arose in consequence of his disability. The only issue is justification. Was dismissal a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: Serving the real business need of ensuring that its staff are in attendance at work to fulfil their contractual employment responsibilities. Serving the real business need of ensuring that its staff are working safely, with regard to that of themselves, their colleagues, the customers of its commercial clients, and the general public. Serving the real business need of ensuring that the staff it employs and deploys are capable of performing their contractual responsibilities in line with the contractual obligations placed on the Respondent pursuant to its commercial agreements with its clients. Serving the real business need of ensuring that under those agreements, the Respondent does not suffer loss of profit, financial penalty, or potential breach of [NAME] as a result of being unable to deliver upon its obligations.

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Serving the real business need of ensuring that its internal processes, including its absence management policy and capability procedure are applied equally, consistently, and fairly to all staff. 142. I am satisfied that the Claimant was [APPELLANT] in pursuit of the following aims: ensuring that staff were capable of performing their contractual responsibilities in line with the Respondent’s obligations to its commercial clients; and ensuring that the Respondent did not incur financial loss, contractual penalties, or risk of breach due to inability to meet required service levels. Both aims were, in my judgment, legitimate. 143. I must balance the discriminatory impact of the dismissal against the reasonable needs of the employer. 144. The Respondent’s witnesses gave clear and consistent evidence about the practical impact of the Claimant’s 14-month absence on the business. 145. [NAME] [APPELLANT] explained that [NAME]-reading work was driven by supplier-imposed targets, with penalties applied if the Respondent failed to meet required volumes; when a [NAME] [NAME] was on long-term sick leave, the work must be absorbed by the remaining staff or by agency workers, with cost and coverage implications for the Respondent; the Claimant’s absence created pressure on the team’s ability to meet the required performance levels. 146. [NAME] [APPELLANT] similarly identified that the Claimant remained part of the team’s FTE headcount, meaning his absence had to be managed operationally, affecting the distribution of work and requiring ongoing welfare and other management support. 147. I have already found that there were no adjustments which could have been made to facilitate the Claimant’s return. The Claimant refused to contemplate any alternative role, which might have avoided the need for dismissal. The Respondent had already extended the wait time for the Claimant’s return on several occasions. It is not irrelevant in my view that the Claimant’s own attitude to cooperating with the Respondent had deteriorated and become adversarial, which itself was a drain on management [NAME]. 148. I am satisfied that it was proportionate (reasonably necessary) for the Respondent to dismiss him; there was no lesser measure which could mitigate the adverse effects of his absence on the business. Conclusions: unfair dismissal What was the reason or principal reason for dismissal? The Respondent says the reason was capability (long term absence). 149. In my judgment, the sole reason for the Claimant’s dismissal was capability arising from long-term ill-health. It was not, as the Claimant suggested in his witness statement, personal dislike on the part of [NAME] [NAME]. The chronology does not support that theory. [NAME] [NAME] denied any personal animus and explained that he scarcely knew the Claimant; that evidence was not substantially challenged and I accept it. [NAME] [NAME] had already decided to embark on the capability process in June before the relationship with the

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Claimant soured. In any event, [NAME] [APPELLANT] was not the decision-maker: [NAME] [NAME], who had not been involved in the earlier disputes, chaired the dismissal meeting and made the decision independently after consulting HR and reviewing the medical position. I am satisfied that capability was the reason for dismissal. If the reason was capability, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative [NAME], in treating that as a sufficient reason to dismiss the Claimant? Did the Respondent genuinely believe the Claimant was no longer capable of performing their duties? 150. The Respondent plainly held a genuine belief that the Claimant was no longer capable of performing his duties. [NAME] reports had confirmed that he remained unfit for work, with no prospect of returning before surgery, no date for surgery and an uncertain recovery thereafter. Did the Respondent carry out a reasonable investigation, including finding out about the up-to-date medical position? Did the Respondent engage in sufficient medical consultation with the Claimant and [NAME]? 151. Over the 14-month absence the Respondent obtained four [NAME] assessments, each confirming that the Claimant remained unfit for work and could not return before surgery and recovery. Managers held repeated review and capability meetings, sought clarification from [NAME] where needed, and attempted to arrange a further review following the September 2023 report. 152. As the process went on, the Claimant became increasingly uncooperative in providing information to the Respondent; he declined to give clear details about his condition when asked; on occasions he refused to respond directly to questions put to him in meetings; he did not cooperate in the Respondent’s attempts to arrange the review meeting following the fourth [NAME] report. This materially hindered the Respondent’s ability to identify any potential way forward other than dismissal. Did the Respondent consider whether adjustments to the Claimant’s role may have assisted his return to work? 153. As I have already concluded, there were no reasonable adjustments which the Respondent could make to facilitate a return to work. Did the Respondent follow the requirements of its capability policy? 154. I have already found that the Red Book policy was partially outdated by the time of the events in question, most notably the requirement that a Head of HR take the decision to dismiss; that role no longer existed. The practice had developed that managers, including [NAME] (who were two levels up from [NAME] readers) such as [NAME] [NAME], were authorised to take capability decisions supported by [NAME].

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155. I accept [NAME] [NAME] submission that, considering that there were 1500 [NAME] readers across the [NAME], 50 [NAME] and less than a dozen combined [NAME], Senior [NAME] and Director level managers, it would be practically and procedurally impossible for the Respondent to reserve ‘First Instance’ decisions in all processes (disciplinary, absence, grievance and capability) to a handful of Performance Managers and two [NAME]. Those managers would spend a high proportion of their working time conducting hearings; a further problem would arise when employees raised appeals (as the Claimant did) against first instance decisions because there would be no more senior managers available to hear them. 156. If I am wrong about that, and if [NAME] [NAME] fell short of the seniority envisaged by the policy, I am satisfied that this was cured at the appeal stage. The appeal was conducted by [NAME] [RESPONDENT], the Respondent’s Senior [NAME] Manager; his status as a senior manager was not in dispute. He reviewed the decision, considered the process and evidence afresh, and upheld the dismissal. 157. I accepted [NAME] [NAME] evidence that the core requirements - consideration of medical evidence, assessment of likelihood of return, exploration of adjustments or alternatives, and the right of appeal - remained in force and were complied with. 158. I have concluded that the process the Respondent followed fell within the band of reasonable responses. Was the decision-making process independent and unbiased? 159. The Claimant contends that the decision-making process was biased because of the involvement of [NAME] [NAME]. 160. The evidence shows that [NAME] [NAME] - and not [NAME] [NAME] - was the decision-maker at the dismissal stage; his involvement had been reduced to that of note-taker only. [NAME] [NAME] chaired the meeting and took the decision. The hearing notes also record that, during the adjournments, [NAME] [APPELLANT] sent both the Claimant and [NAME] [APPELLANT] out of the room while she deliberated and sought advice from [NAME] [NAME] in [NAME]. There is no cogent evidence that [NAME] [NAME] attempted to influence the decision; there was no basis for a finding of bias on [NAME] [NAME] part. 161. In those circumstances, I am satisfied that the Respondent’s decision-making process was conducted independently and without bias. Did the Respondent give sufficient time for the Claimant’s condition to improve? 162. Given the duration of the absence, the continuing uncertainty, and the lack of any foreseeable prospect of return, I am satisfied that the Respondent gave sufficient time for the Claimant’s condition to improve and that it could not reasonably be expected to wait longer before dismissing the Claimant. 163. For what it is worth (it is not relevant to the determination of the unfair dismissal claim), I record that the Respondent’s assessment of the likelihood of a return turned out to be correct: the Claimant still has not had his surgery as at the date of this hearing, over two years after [APPELLANT].

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Was dismissal within the range of reasonable responses? 164. Taking all the circumstances into account, I am satisfied that the decision to dismiss was within the band of reasonable responses and was fair. 165. Accordingly, the claim of unfair dismissal is not well founded and is [APPELLANT].

Employment Judge D [NAME]: 24 March 2026

APPENDIX: LIST OF ISSUES

1. Time limits

1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 28th September 2023 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:

1.2.1 In respect of complaints based on the Respondent’s failure to do something, namely failure to make reasonable adjustments, when is the Respondent to be treated as having decided those things?

1.2.2 Was the disability and/or race discrimination claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.3 If not, was there conduct extending over a period?

1.2.4 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.5 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:

1.2.5.1 Why were the complaints not made to the Tribunal in time?

1.2.5.2 In any event, is it just and equitable in all the circumstances to extend time?

2. Unfair dismissal

2.1 It is agreed the Claimant was [APPELLANT].

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2.2 What was the reason or principal reason for dismissal? The Respondent says the reason was capability (long term absence).

2.3 If the reason was capability, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative [NAME], in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. The Tribunal will usually decide, in particular, whether:

2.3.1 The Respondent genuinely believed the Claimant was no longer capable of performing their duties;

2.3.2 The Respondent adequately consulted the Claimant;

2.3.3 The Respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;

2.3.4 The Respondent engaged in sufficient medical consultation with the Claimant and [NAME];

2.3.5 The Respondent considered whether adjustments to the [APPELLANT] role may have assisted his return to work;

2.3.6 The Respondent followed the requirements of its capability policy;

2.3.7 The Respondent fairly considered the impact of the Claimant’s absence on the business and other employees;

2.3.8 The Respondent gave sufficient time for the Claimant’s condition to improve;

2.3.9 Whether the Respondent could reasonably be expected to wait longer before dismissing the Claimant;

2.3.10 Dismissal was within the range of reasonable responses.

3. Remedy for unfair dismissal

3.1 The Claimant is not seeking reinstatement or re-engagement.

3.2 What basic award is payable to the Claimant?

3.3 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal or to take into account a statutory redundancy payment already received? If so, to what extent?

3.4 If there is a compensatory award, how much should it be? The Tribunal will decide:

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3.4.1 What financial losses has the dismissal caused the Claimant? 3.4.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 3.4.3 If not, for what period of loss should the Claimant be compensated? 3.4.4 Is there a chance that the Claimant would have been fairly [APPELLANT] anyway if a fair procedure had been followed, or for some other reason? 3.4.5 If so, should the Claimant’s compensation be reduced? By how much? 3.4.6 Did the [NAME] on Disciplinary and Grievance Procedures apply? 3.4.7 Did the Respondent or the Claimant unreasonably fail to comply with it? 3.4.8 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%? 3.4.9 If the Claimant was unfairly [APPELLANT], did they cause or contribute to dismissal by blameworthy conduct? 3.4.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion? 3.4.11 Does the statutory cap of fifty-two weeks’ pay apply?

4. Disability

4.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:

4.1.1 Did they have a physical impairment: essential thrombocythemia and/or impairment of the right hip? The Claimant asserts he was diagnosed with osteoarthritis in both hips in 2001, had a complete right hip replacement in 2012 and complete left hip replacement in 2017. 4.1.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities? The [APPELLANT] asserts at the date of his dismissal he was awaiting corrective surgery. Until the surgery was undertaken the Claimant needed frequent breaks, took longer to carry out tasks, was not able to walk distances that were normal to him and had difficulties bending. The [APPELLANT] asserts he would have been able to return to his job without any adjustments after he recovered from surgery.

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4.1.3 If not, did the Claimant have medical [APPELLANT], including medication, or take other measures to treat or correct the impairment? The [APPELLANT] asserts he had received surgery and took medication (hydroxycarbamide, 500mg x 2, once per day, aspirin and folic acid) 4.1.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the [APPELLANT] or other measures? 4.1.5 Were the effects of the impairment long-term? The Tribunal will decide: 4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months? 4.1.5.2 if not, were they likely to recur?

5. Discrimination arising from disability (Equality Act 2010 section 15)

5.1 Did the Respondent treat the Claimant unfavourably by:

5.1.1 dismissing the Claimant.

5.2 Did the following thing arise in consequence of the Claimant’s disability:

5.2.1 the Claimant’s sickness absence

5.3 Was the unfavourable [APPELLANT] because of that thing? Did the Respondent dismiss the Claimant because of that sickness absence?

5.4 Was the [APPELLANT] a proportionate means of achieving a legitimate aim? The Respondent says that its aims were:

5.4.1 Serving the real business need of ensuring that its staff are in attendance at work to fulfil their contractual employment responsibilities. 5.4.2 Serving the real business need of ensuring that its staff are working safely, with regard to that of themselves, their colleagues, the customers of its commercial clients, and the general public. 5.4.3 Serving the real business need of ensuring that the staff it employs and deploys are capable of performing their contractual responsibilities in line with the contractual obligations placed on the Respondent pursuant to its commercial agreements with its clients. 5.4.4 Serving the real business need of ensuring that under those agreements, the Respondent does not suffer loss of profit, financial penalty, or potential breach of [NAME] as a result of being unable to deliver upon its obligations.

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5.4.5 Serving the real business need of ensuring that its internal processes, including its absence management policy and capability procedure are applied equally, consistently, and fairly to all staff. 5.5 The Tribunal will decide in particular:

5.5.1 was the [APPELLANT] an appropriate and reasonably necessary way to achieve those aims;

5.5.2 could something less discriminatory have been done instead;

5.5.3 how should the needs of the Claimant and the Respondent be balanced?

5.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

6. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

6.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

6.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:

6.2.1 A requirement for employees to regularly attend for work;

6.2.2 A requirement for employees to not take extended period(s) if sickness absence.

6.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability?

6.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

6.5 What steps could have been taken to avoid the disadvantage? The Claimant suggests:

6.5.1 allow the Claimant to remain on sickness absence until he had his operation,

6.5.2 provide the Claimant with light duties for a limited period,

6.5.3 provide the Claimant with suitable alternative employment.

6.6 Was it reasonable for the Respondent to have to take those steps and when?

6.7 Did the Respondent fail to take those steps?

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7. Direct race discrimination (Equality Act 2010 section 13)

7.1 The Claimant describes his race as being a black person.

7.2 Did the Respondent do the following things:

7.2.1 Fail to properly investigate and/or respond to the Claimant’s request to remove [APPELLANT] from the [NAME].

7.3 Was that less favourable [APPELLANT]?

The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s.

If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated.

The Claimant says they were treated worse than [APPELLANT] [NAME] and/or a hypothetical comparator.

7.4 If so, was this less favourable [APPELLANT] because of race?

8. Remedy for discrimination or victimisation

8.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

8.2 What financial losses has the discrimination caused the Claimant?

8.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

8.4 If not, for what period of loss should the Claimant be compensated?

8.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

8.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

8.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

8.8 Did the [NAME] on Disciplinary and Grievance Procedures apply?

8.9 Did the Respondent or the Claimant unreasonably fail to comply with it by [specify breach]?

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8.10 If so, is it just and equitable to increase or decrease any award payable to the Claimant?

8.11 By what proportion, up to 25%?

8.12 Should interest be awarded? How much?