United Kingdom Employment Appeal Tribunal

The factual background

(1) A warning was to be given when the employee reached a consideration point.  At that point, they could be given a six month Review Period, during which their attendance must be acceptable.  If attendance was acceptable within the Review Period, no further action would be taken except that the employee would be monitored for a further 12-month period called the “backsliding period”.

(2) If attendance did not improve during the Review Period or during the backsliding period, the policy required that, if at any time during the review or backsliding period, attendance fell below the required level, the manager must move to the “considering dismissal” stage.

(3) Stage 3 requires the manager to refer the case to an “Independent Decision-Maker” to consider dismissal or demotion.

(4) The decision-maker would consider whether dismissal or demotion is appropriate after inviting the employee to a meeting.  If no action was taken, attendance would be monitored for the remainder of the backsliding period.

“To justify these comments Mrs Ajaegbu told us that she had had a conference with ATOS before writing this report.  They have told her that they would not be contacting the GP themselves.  Mrs Ajaegbu did not consider it necessary to ask the Claimant for permission to write to the GP herself.  In the bundle is confirmation that the Respondent did not contact the GP to confirm what had happened.  In view of the firm advice given by Ms Sterling, we find this somewhat surprising.  It is the Claimant’s case that his medication was not helping him, which, in view of the fact that it was a psychological condition, is perhaps not surprising.  At the very least, we believe that the Respondent should have asked the Claimant to obtain the necessary confirmation from his Doctor that it was in order for him to cease taking his medication.  Without such investigations it appears to the Tribunal that the Respondent formed an unjustified view that the Claimant was acting improperly in declining to take any medication.

“[…] following our meeting on Tuesday, 11 August, 2009, I have considered all the facts of your case and have decided that as your absence can no longer be supported, I must dismiss you.”

The Employment Tribunal’s conclusions

“11. We start by considering the complaint of failing to make adjustments.  The only adjustment which the Claimant argues before us is that he should have been allowed an extended consideration time.  He agrees that the other adjustments made by the Respondent satisfy all his other requirements.  He argues for a period of 10 days when the Respondent was only prepared to make an adjustment of an extra five days.  The difficulty which we have is in assessing what is a reasonable adjustment.  The Respondents have chosen a period of 5 days which they have arrived at by taking an average of the Claimant’s absences between 2002 and 2008.  They also point to the impact that the Claimant’s absences have had upon their service.  In arriving at a figure of 5 days they have decided upon an average of the time which the Claimant had taken off because of his IBS.  This average, of course, varies from time-to-time.  By the end of November 2008 the Claimant had had 37 days’ absence over a period of 6 years.  This gives an average of 6.15.  We also have to be conscious that the Claimant’s long term, as opposed to short term, absences, were frequently connected with his IBS although there were other factors in these absences, but have not been included in the averaging.  If we were to factor these absences in as well we would arrive at a much higher figure.  It seems to us somewhat arbitrary to exclude these absences and only to include the casual absences which occurred in between the periods of long term absence.  However, the Claimant asked for no more than 10 extra days and we therefore feel entitled to take that as the maximum period.  We also have to note that if we had included the long term absence the average would be at such a high figure that it would have been unsustainable on a reasonable basis.  The importance of this factor is that the taking account of only short term absences was a fairly arbitrary exercise.

12. We would certainly accept that if he was allowed the opportunity to have additional days off this would, to some extent, reduce the stress he was under of fearing that he might lose his job because of his condition.  We also accept that the stress increased the likelihood of the IBS symptoms and the Claimant was, therefore, in what he describes as a ‘vicious circle’.  However, there is a limit to the amount of additional absences [sic] which a reasonable employer can expect to accept and we are, for the purposes of this consideration, prepared to consider that as being 10.  This gives a total of 18 days in all which is a very considerable period of absence above normal.

13. In deciding what is reasonable we also have to consider carefully the Respondent’s evidence about the difficulties which his absence caused their service.  Section 18B of the Act sets out various matters which we have to consider in this connection.

13.1 Section 18B(1(a) requires us to consider whether the step would prevent the effect in relation to which the duty is imposed.  We find that there was every prospect that it would because the stress which we have mentioned above would have been reduced.  This in turn would have reduced the incidence of IBS.

13.2 Under 18(b)1(b) [sic] we had to consider the extent to which it was practicable for them to take this step.  It was not suggested that it was impracticable.

13.3 The Respondent’s main argument related to the provisions of 18(b)(1(c) [sic] which was the,

‘financial and other costs which would be incurred by him in taking this step and the extent to which taking it would disrupt any of his activities’.

14. Essentially, it was the disruption to their activities which the Respondent relied upon.  We have listened carefully to their evidence about these difficulties.  We note, however, that during the Claimant’s long term absences no steps were taken to fill his post by secondment or obtaining a temporary employee.  The same situation appears to have occurred during his predecessor’s absences.  Whilst we have to accept that his specialist services would not be provided to the Respondent’s customers, there is no indicate [sic] that there was a pressing need for this to be done.  Whilst there was disruption by reason of his absence we do not consider that a further 5 days would have caused an insurmountable problem.

15. The Respondent did, of course, make an adjustment of an additional five days’ absence.  It is difficult to see on the evidence before us how this was done.  Certainly by November 2008 the average absence incurred by the Claimant exceeded 5 days.  Having considered the whole of the evidence we have become convinced that the period of 5 days originated in the letter of 9 March 2005 when 5 days was put forward as an example of the adjustments which could be made.  We have formed the opinion that the Respondent had subsequently adopted that figure and thereafter endeavoured to justify it rather than assess what was the appropriate number of days for a reasonable adjustment.  We are confirmed in this view by the comments attributed to Mr Keys which shows that the Respondents had a fixed view about the Claimant which was that he would take whatever period of absence was allowed to him.  No doubt the lengthy absences caused some difficulty but we are not convinced that the Respondent carried out an in depth appraisal of what would be appropriate or what the business could bear.

16. However, when we turn to consider what we would consider to be a reasonable adjustment we find the position to be very complex.  We cannot just pick a figure from the air on the basis of what we think might be fair.  We have to base our assessment on evidence.  The best evidence in this situation is medical evidence.  The only evidence of that sort is contained in the Occupational Health reports.  Their fairly unanimous view was that future absence should be assessed on the basis of past absence.  We have already pointed out that in November 2008, on that basis, an [sic] Consideration Point of 6 days would have been appropriate.  On the other hand if we assessed his absences in the period between 2005 and 2008, after his return from long term absence, the average would be based on two years’ absence and would be 8 days.

17. We also have to consider the clear advice which was given to the Respondents that IBS was made worse by stress.  It is clear from the documents that the Respondent realised that the pursuit of the attendance process would cause stress which would in turn have an adverse impact on his IBS and accordingly on his attendance.  It must have been appreciated that pursuing the Attendance Procedure would inevitably have increased his absence due to the stress caused.  However, even if this situation is the result of the Claimant’s disability, it is not reasonable to refrain from attendance procedures altogether.  There is a point at which it becomes unreasonable to have to make further adjustments.  We also have to bear in mind that the Respondent made a number of adjustments which the Claimant readily accepted and had greatly assisted him.  The Consideration Point was not the only relevant adjustment.  It was one part of a package.

18. We also consider that there is a continuing need for an employer to reassess the nature of the adjustments.  They are not arrangements which can be made and left unconsidered forever.  They need to be reconsidered in the face of changing circumstances.  Based on the last three years of the Claimant’s employment, a figure of 8 days would have been a more appropriate average.  It would achieve the results necessary by reducing stress and in turn reducing the risk of the Claimant losing his employment because of his absences.  The reduction in stress could reasonably be expected to reduce his IBS symptoms and therefore improve his attendance.

19. We have also considered the argument put forward by the Claimant that 10 days would be the appropriate period.  This argument was based on the fact that this was agreed prior to 2005 and there had been no substantial change in the circumstances since then.  This is, of course, a persuasive argument.  However, it is not based on the medical advice which was to work on an average.

20. We have considered all of these factors in trying to come to a conclusion as to what would be appropriate.  However, we remind ourselves that we do not necessarily have to decide, for this purpose, what would be the appropriate reasonable adjustment.  We have to decide whether the adjustments which the Respondent made were reasonable.  On that basis we have decided that the 5 days adjustment [sic] made by the Respondent was not reasonable.  It did not reflect the average of the Claimant’s absence, especially in late 2008 and 2009.  If we had to decide on the appropriate period, we would have considered 8 days as a reasonable period balancing the additional pressure which the Claimant’s absence put upon the Respondent and their resulting inability to provide disability advice to their customers against the additional stress caused to the Claimant.  However, by allowing 5 days we find that the Respondent did not make a reasonable adjustment and that is sufficient basis upon which to find that they failed to comply with their obligation in Section 3A(2).  We do, however, wish to record that this decision takes account of the fact that there must be a point at which absence becomes intolerable.  It is difficult to pin point this within a small range. We feel however, that 8 days does not approach that point whereas 10 days may well have done.

21. We accordingly find that the Respondents have failed to make reasonable adjustments for the Claimant.

Disability related Discrimination

22. We next have to consider the question of disability related discrimination.  There are three issues to decide upon:

22.1 The first is that the Respondent failed to put in place a Consideration Point of 18 days between 26 November 2007 and 27 November 2009.  It is factually correct that the Respondent failed to do this.  The difficulty which the Claimant has is that he has not given any evidence of comparators.  As already indicated the decision in Malcolm requires us to compare the treatment afforded to the Claimant with that afforded to others.  We have not received any evidence as to which had happened to others or upon which we could construct a hypothetical comparator who had been treated differently.  It is not sufficient for the purpose of constructing a hypothetical comparator merely to refer to the previous Consideration Point allowed to the Claimant.  The Claimant cannot be his own comparator.  Even on the basis that the Claimant was allowed 5 extra days on his Consideration Point, he appears to have been treated more favourably than any other employee about whom we heard.  On that basis, therefore, we must find that the Claimant has failed to satisfy us that the failure to allow him consideration of 18 points constituted treatment which was less favourable than the way in which the Respondent treated or would treat others to whom that reason does not or would not apply.  For this reason, therefore, this complaint must fail and is accordingly dismissed.

22.2 The second issue is the decision to issue the Claimant with a written warning on 24 November 2008.  This warning was given because the Claimant at that time had exceeded the Consideration Point afforded to him.  This was already 5 days higher than that given to other staff.  We have again received no evidence about how other staff were treated or how they would have been treated.  Therefore, for the same reasons as above, we must find that this complaint is also not well founded and must be dismissed.

22.3 The final complaint is that his dismissal constituted disability‑related discrimination.  He was dismissed for absence which exceeded by some way the norm allowed to other staff.  No evidence was given as to how other staff were treated in this situation or how they would have been treated.  In the absence of that evidence we are unable to find, for the reasons set out above, that the complaint is being made out.  We find it not to be well founded and it is accordingly dismissed.

We do not have to take into account in this decision that the Respondent has been found not to have made a reasonable adjustment, since that is only referable to an attempt by a Respondent to justify their action which has otherwise been found to be discriminatory.  The Claimant’s complaints of disability related discrimination are accordingly dismissed.

Unfair dismissal

23. The Claimant was dismissed for capability reasons which is a potentially fair reason under section 98(1)(2) [sic] of the Employment Rights Act 1996.  We are satisfied that this has been shown to us by the Respondent.  We then have to consider whether the dismissal is fair for the purpose of section 98(4).  The key to fairness in such cases is a fair procedure.  Such a procedure requires, in particular,

(i)  Consultation with the employee;

(ii)  A thorough investigation of the medical situation and the reason for the absences;

(iii)  Consideration of other options.

24. We have set out in our findings the details of the various consultation procedures and appeals which the Respondent went through.  Whilst the Claimant argues with the decisions reached in those matters he does not argue about their inherent fairness.  His views were certainly consulted at every stage of the procedure, even though they were not accepted.  There was a fair procedure with various stages provided in it.  There was a general allowance of 8 days for sickness absence, which the Respondents had increased to 5 days in the case of the Claimant.  He was therefore given every opportunity of showing that he could attend work on a regular basis.  In connection with unfair dismissal we had to disregard the provisions for Disability Discrimination Act.  These we have considered separately but they are immaterial for the purposes of unfair dismissal.

25. The Respondent’s Occupational Health department regularly assessed the Claimant and produced reports with which the Claimant did not essentially take issue.  There was no doubt that the Respondent knew about the Claimant’s IBS and the reasons for its absences.  Indeed it is noteworthy that they tolerated absences in excess of what they had agreed when taking into account his long term absences.

26. Consideration was given to alternative employment.  He was moved from his position from managing counter staff to being a disability adviser, a job which he accepted was compatible with his difficulties.  Other adjustments were also made as set out above.  None of these procedures have any element of unfairness.

27. There were, however, some areas of potential unfairness in what happened.  The reduction of the Claimant’s Consideration Point from 18 to 13 was carried out in a cavalier manner, as we have described.  If this decision had lead [sic] directly to his dismissal then there would have been unfairness.  However, the Claimant was for a very lengthy period aware that his Consideration Point had been reduced and spent some considerable time and effort in appealing and contesting that decision.  He was, therefore, aware of the Respondent’s position at all material times.  We do not find, therefore, that that is a matter of continuing unfairness which affected the dismissal itself.

28. We have also noted the failure of Mrs Ajaegbu to obtain an Occupational Health report before giving the Claimant the written warning.  In a perfect world she would have done so.  However, we accepted her evidence that she would have reviewed her decision should the Occupational Health report reveal matters which should be taken into account.  We are satisfied that she would have done so.  Whilst the Claimant believes that Mrs Ajaegbu was biased against him, we do not find that this was so.  She was charged with managing his attendance deficiencies, which in the circumstances must have been difficult and stressful, since she had to administer the tougher approach to absence which her senior management had imposed upon her.  We have seen the Occupational Health report and it did not show any matters which could have affected her decision.  We do not, therefore, find that her action was unfair.

29. Finally, we note that Mrs Hartnett took into account the fact that the Claimant had ceased taking his medication.  We have found that decision to be unjustified without the position being checked with his GP to see if this was done on medical evidence.  This could have been an area of unfairness if it had affected her decision.  We note from the wording of her decision, however, as confirmed in her evidence, that this aspect of the matter only affected her decision to reduce his compensation under the Civil Service Scheme.  We are satisfied that her reason for dismissing him was his continuing absence in excess of the figures allowed.  Again, we find that this does not constitute an act of unfairness.

30. We have also been asked to consider whether there was a general bias against the Claimant.  We have been referred to the comments of Mr Keys as evidence of this.  Mr Keys was not called to explain his views.  It is certain that the Respondent had decided to take a more stringent line on absence.  There is nothing unfair in that, and it is a duty of management to manage such absences.  The ultimate tool in such management is the threat of dismissal and, eventually, if there should be no improvement, actual dismissal.  We have had to judge the conduct of those actually managing the process with the Claimant.  We have found no bias in them against the Claimant.

31. Taking all these matters into account we have come to the conclusion that there was no unfairness in the Claimant’s dismissal.  He was dismissed for exceeding, by some way, the permitted levels of absence which were, in themselves, quite generous.  A fair and proportionate procedure had taken place over a period of two years.  The Claimant’s attendance had not improved.  In the circumstances we find that the Claimant’s dismissal was not unfair and his complaint is accordingly dismissed.”

The Notice of Appeal

Ground 1

(i) the general need for a comparative exercise following Malcolm (Reasons, paragraph 8);

(ii) the particular need for an appropriate comparator in cases of capability dismissal (re Reasons, paragraphs 8 and 10);

(iii) the possibility that the comparator could be a hypothetical one if no actual comparator could be found (Reasons, paragraph 9); and

(iv) that the Claimant was treated more favourably than any other employee about whom they had heard (Reasons, paragraph 22.1).

(i) that the appropriate process was the Regular Attendance Policy (paragraph 3.9);

(ii) that the Respondent’s policy allowed for the consideration point to be increased where absences were linked directly to a disability or an underlying medical condition, but for those not so affected the policy provided for formal action to be taken once the consideration point had been reached (paragraph 3.10);

(iii) that the policy was applied to the Claimant, and, in particular, that the backsliding requirement to consider a rolling 12-month period was in accordance with the policy (paragraphs 3.9 and 3.17);

(iv) that the Respondent was addressing the issue of excessive absence amongst its staff and in consequence for general purposes procedures would be instigated against staff under the policy after eight days’ absence (paragraph 3.13);

(v) that the Respondent paid close attention to excessive absence, and that as part of that it was appropriate that the Claimant’s line manager spoke every week to a member of HR about staff who had not maintained a good attendance record (paragraph 3.27);

(vi) that an adjustment to the consideration point of ten days had been agreed in 2002 (paragraph 3.3);

(vii) that periods of the Claimant’s absence that were related to his IBS had been disregarded (paragraph 3.11 and later);

(viii) that the application of the policy in the Claimant’s case would have led to him receiving an oral improvement warning, given the rolling 12-month policy, even with 10 days of IBS-related absence, to be discounted from the consideration point (paragraph 3.21); and

(ix) that the Tribunal rejected the suggestion that either the conduct of the Claimant’s line manager, Mrs Ajaegbu, or “the conduct of those actually managing the process with the Claimant” revealed “bias in them against the Claimant” (paragraphs 28 and 30).

Ground 2: misdirection as to the burden of proof

“If however the Tribunal is not satisfied with that explanation and finds that there are some inferences that the treatment was on the grounds of the Claimant’s disability, it still seems to the Tribunal that it is necessary for the Claimant to show that his treatment has been less favourable than that afforded to others.  That is an essential requirement of section 3A(1) and we do not consider that we can ignore it.  This must be the case even more so in complaints under the Disability Discrimination Act where quite clearly the reasons [sic] for the dismissal was absence due to the difficulties caused by his disability.”

“[…] the purpose of that assumption is to shift the burden of proof at the second stage.  It does not diminish in any way the burden of proof at the first stage, when the tribunal is looking at the primary facts that must be established.  As Peter Gibson LJ said in para 17 of his judgment in that case [Igen], the first stage requires the complainant to prove the facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant.”

Ground 4: unfair dismissal

(i) its finding in relation to disability discrimination and reasonable adjustments;

(ii) the fact that the Respondent consistently ignored the Claimant’s complaints that he was being discriminated against contrary to the Disability Discrimination Act in relation to his consideration point;

(iii) the additional stress that the Claimant suffered as a result of the Respondent’s refusal to properly consider his arguments in relation to his consideration point and the lawfulness of its treatment of him and how that exacerbated his IBS, which in turn caused him to have even more time off than he otherwise would have; and

(iv) the Respondent’s arbitrary treatment of the Claimant in relation to the consideration point issue.

(i) There is simply no evidence to support this contention.  As the Tribunal record, the only reasonable adjustment contended for by the Claimant was the appropriate consideration point.  The Employment Tribunal considered this at paragraphs 17, 18 and 20 of its Reasons.  The Tribunal found that the appropriate adjustment to the consideration point was eight and not ten days.  It follows that the policy requirement to consider a rolling 12‑month period would have resulted in the Claimant receiving an oral improvement warning and attending a meeting at which one reasonable and fair outcome would have been his dismissal on the same dates as he did.  The Tribunal clearly had these findings in mind when reaching its conclusion at paragraph 31.

(ii) This was not a case of direct discrimination.  The Tribunal expressly considered the Claimant’s arguments that the Respondent demonstrated bias towards him in its decision to dismiss and rejected it: re Reasons paragraphs 28 and 30.  The evidence was considered, weighed and rejected.

(iii) This was expressly considered at Reasons paragraph 17, where the Tribunal noted that whilst pursuing the attendance procedure would have increased the absence due to the stress that was caused, “it was not reasonable to refrain from attendance procedures altogether.  There is a point at which it becomes unreasonable to have to make further adjustments”.  The issue was quite clearly in the Tribunal’s mind when it considered the fairness of the dismissal.

(iv) This was expressly considered at Reasons paragraphs 15, 18 and 20.  It was clearly in the Tribunal’s mind when considering the fairness of the dismissal.

Ground 5: failure to take into account that the Respondent refused to provide the Claimant with information relating to comparators despite previously promising to do so

(i) Did the Claimant make an argument based on ground 5 of the Notice of Appeal?

(ii) If the Claimant did make such an argument, what conclusion did the Employment Tribunal come to?

Ground 6: failure to draw inferences from its own findings of fact and/or adopting the “fragmented” approach

Other matter

“4. In his oral submissions made in support of the written submissions he [counsel for Mr Ward] again indicated that he agreed with the Malcolm approach.  He stated that the Claimant relied upon the Respondent’s negative attitude and that they had made stereotypical assumptions with regard to the Claimant.  He emphasised that it was not necessary for the Claimant to prove a comparator following the suggestions made in Shamoon.  He also accepted that there were no actual comparators and that there was no evidence regarding hypothetical comparators.

5. Despite these concessions we considered whether we consider identifying a hypothetical comparator.  Our approach and decision on this point are recorded at paragraphs 9 and 22.1 of our judgment.”

Conclusion