1. I refer to the parties as the Claimant and Respondent, as below. This is the Full Hearing of the Respondent's appeal against a Judgment of the Birmingham Employment Tribunal (Employment Judge Lloyd sitting with members Messrs Zealander and Gordon on 22-26 and 29 February 2015 and then on 1 and 2 March in chambers; "the ET"), sent to the parties on 29 March 2016. Representation before the ET was as now. By its unanimous Judgment the ET, relevantly, upheld the Claimant's claims of unfair dismissal and of discrimination by way of unfavourable treatment in relation to something arising in consequence of disability under section 15 of the Equality Act 2010 ("EqA") and disability discrimination due to the Respondent's failure to make reasonable adjustments under sections 20 and 21 EqA. Having earlier considered this matter at an Appellant-only Preliminary Hearing I allowed that the Respondent should be permitted to pursue its appeal against those findings.

1. The Claimant had been employed by the Respondent from 26 June 2000. At the time of her dismissal on 6 January 2015 she was a grade 2 Income Services Negotiator assigned to the Respondent's Rent Division. It was common ground before the ET that the Claimant had a history of various long periods of sickness absence. As the ET found, she was dismissed after she had been absent from work from 31 July 2014. That was set against a history of attendance problems due to sick leave, as the ET records:

"2.1. … the claimant is described as being absent from work over the previous 12 months before 1 August 2014 (when she went off with stress and anxiety at work) for 98 days out of a possible 220 working days, which amounted to 45% absenteeism. The claimant's overall sickness history showed that she had accumulated 726 days [sic] sickness over an 8 year period, equating to 41% absenteeism over that time. The respondent asserted that the statistics showed the claimant had failed to attend at work for approximately 3.28 years out of the last 8 years. …"

1. The Respondent conceded before the ET that the Claimant was disabled by reason of a mental impairment, namely post-traumatic stress disorder ("PTSD"), at least as from 6 June 2013. I record - because the Claimant has told me more of the background during the course of the appeal hearing - that the Claimant's PTSD arises from traumatic events in her younger life unrelated to her work for the Respondent. The disability that she suffers as a result has understandably had a considerable impact upon her and may well be the explanation for which she was perceived to be a "difficult employee to manage" (see the ET at paragraph 12.3). The ET accepted, however, that the Respondent had only known of any assessment of the Claimant's PTSD as from August 2014 and did not know of the actual gravity of her condition until 24 October 2014 when it had an Occupational Health report.

1. The ET found that the Claimant was dismissed because of her long absence from work and the fact there was no realistic date for a return to work, albeit that the Occupational Health report of October 2014 had suggested that a review be undertaken following the conclusion and outcome of the therapy that the Claimant was due to undertake (at that time understood to be due to start in November 2014 and expected to last for some three to six months (see the ET's reasoning at paragraph 15.2), although, as a matter of fact, therapy had not started as at 5 January 2015 (see the ET at paragraph 15.3)). The ET was satisfied that the Claimant's absence was due to her disability but the decision to dismiss her was because of her absence from work and lack of realistic date of return, not because of her disability. Accordingly, the section 13 EqA claim she pursued (direct discrimination) was dismissed. The ET considered that the decision to dismiss the Claimant was unfair; this was because the Respondent failed to meet crucial expectations of fair treatment in the Claimant's particular case. It observed that the Respondent is a large public sector employer with considerable resources and considered the Respondent had failed to support the Claimant. The ET further considered that the Respondent's Occupational Health assessment was inadequate, failing to properly assess the extent of the impact of the Claimant's mental health condition upon her ability to carry out her work and also found that the Respondent had failed to then refer the Claimant back to Occupational Health in December 2014, as the October report had envisaged. The Claimant therefore succeeded on her unfair dismissal claim, although, applying Polkey v A E Dayton Services Ltd [1988] ICR 142 HL, the ET held that the Claimant's losses would be limited to the period to 6 November 2015 to allow for the proposed therapy treatment, further feedback and the Claimant's notice period.

1. Turning to the section 15 EqA claim, the ET considered the Respondent had failed to address the underlying expectation that the Claimant would be treated in accordance with the Respondent's obligations under the EqA; specifically, it found there were intrinsic equality flaws in the Respondent's managing absence procedure ("MAP") but that, in any event, the Respondent had failed to abide by a core expectation of MAP to take all reasonable steps to facilitate an absent employee's return to work. There was also insufficient information before the Respondent at the time of the decision: having effectively concluded that the Claimant was incapable of returning to work, it had failed to investigate her true predicament with care or adequacy. Although the ET considered a possible transfer of the Claimant was "too remote a possibility to consider", it concluded that the Respondent could have done more to initiate a medical grounds transfer/relocation, albeit the ET allowed that the prospect of the Claimant co-operating with such an initiative was remote (see the reasoning at paragraph 17.6).

1. Similarly, on reasonable adjustments - sections 20 and 21 EqA - the ET concluded that the Respondent had been wrong to terminate the Claimant's employment before she had undertaken the prescribed period of therapy. For the purposes of her reasonable adjustments claim, the ET records that the PCP relied on by the Claimant was the MAP, which she contended placed her at a substantial disadvantage compared to a person who did not have a disability. Specifically, she relied on dismissal as an identified disadvantage; the ET agreed:

"18.2. On any analysis the respondent was wrong to go ahead and terminate the claimant's employment at least before the prescribed period of therapy had been undertaken and completed by the claimant. The respondent could have gone further in looking at the benefit of reasonable adjustments in the claimant's case.

…

18.5. We conclude that the respondent inexcusably failed to give the claimant the necessary latitude to complete her therapy or at least draw a provisional conclusion from it.

18.6. There was a failure by the respondent to initiate any pro-activity of enquiry or investigation in relation to the short or medium term assessment of the claimant's disability.

18.7. The claimant's case was dealt with by an impersonal management expediency, with little consideration of accommodation or adjustment. This was not a routine lack of capability case and the respondent failed to adjust its approach to recognise that.

18.8. There was a lack of will on the respondent's part to look for the prospect of adjustment to test the claimant's real resolve to return during 2015. There was as we have observed "a self-fulfilling prophesy" [sic] of failure to meet the expectation of capability."

1. Having set out its determination of the Claimant's claims under separate subheadings as I have related above, the ET provided further reflections under the heading "Postscript and judgment summary". As well as there explaining why it did not consider it appropriate to make any reduction for contributory fault on the Claimant's part, or to award an uplift in damages against the Respondent for failure to comply with the ACAS code, the ET observed:

"19.1. The claimant was prescribed an extended period of therapy. Taking into account the likely slippage of timetable we consider that would not have concluded until late summer 2015. Giving her the benefit of a degree of flexibility for this we think the fair finding is that her therapy course would have been concluded by the very latest by the end of August 2015. Frankly, however, we do not believe that treatment would have brought her back to work, either at all, or for any sustained period.

19.2. We conclude that, allowing for proper notice to be given to the claimant, her employment would have been ended lawfully and fairly by the respondent by 6 November 2015; that is 11 months after, we say, the flawed dismissal of 6 January 2015. The claimant's compensation does not extend beyond that date.

…

19.8. We accept that during periods of her employment by the respondent the claimant found herself in a very difficult position because of issues in her personal and private life. That impacted upon her working life and through complex twists and turns of events progressively she found that "her card was marked" as a difficult employee and one who struggled to show the capacity to fulfil her contract of employment. We find that the claimant held a reasonable perception that she was living on borrowed time as an employee of the respondent; by reason of the respondent's pre-conceived notion that she would not return to work. That she would not do so may well have been proven in the course of time. However, her apparent lack of engagement with the respondent's process was as much a helpless resignation to events as any wilful failure to co-operate. In these circumstances, we do not find it just or equitable to conclude that the claimant is liable for contributory conduct in this matter.

…

19.10. Had the respondent made its best efforts to bring the claimant back to work at the time, we are constrained to conclude the probability that her return to her job would have been short lived in all the circumstances. We find that taking into account her proposed therapy (and the remainder of her sick pay period) and contractual notice, it is probable that the respondent would fairly have concluded by 6 November 2015, that the termination of the claimant's employment on the grounds of incapacity was justified and not at odds with fairness and her rights as a disabled employee. There was clear evidence demonstrating that the claimant throughout most of her employment had significant difficulties with timekeeping and accuracy of clocking in. Alternatively, it is probable that she would not have returned to work at all, following even a lengthy period of therapy. We find such circumstances would have triggered a resumption of the absence management procedure and a decision with notice to end her employment."

1. For the purposes of the discrimination claims to which this appeal relates the relevant provisions of the EqA are to be found at sections 15, 20 and 21.

1. Section 15 provides:

"(1) A person (A) discriminates against a disabled person (B) if -

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."

1. In the case of Pnaiser v NHS England and Anor [2016] IRLR 170 at paragraph 31 Simler P (having considered a number of relevant authorities including [IPC Media Ltd v Millar ]()[2013] IRLR 707 EAT, [Basildon & Thurrock NHS Foundation Trust v Weerasinghe]() UKEAT/0397/14 and Hall v CC West Yorkshire Police provided guidance as to the proper approach to determining whether there has been a prima facie breach of section 15 such that - absent the employer justifying the treatment under section 15(1)(b) - this form of disability discrimination would be made out. That guidance should be read in its entirety. In summary, however, an ET will need to: (1) identify the individual/s responsible for the treatment complained of and enquire into the reason for that treatment, undertaking this exercise as it would when determining the reason for conduct complained of in a direct discrimination claim; and (2) determine - applying a purely objective test - whether there is a connection between the disability and the "something" which provides the reason for the treatment in issue. There is no requirement that the ET determines these questions in any particular order, but the answers to the questions should be apparent from its reasoning.

1. Section 15(1)(b) allows that the unfavourable treatment relevantly identified for the purposes of section 15(1)(a) might be justified. Justification of such treatment requires there to be an objective balance between the discriminatory effect and the reasonable needs of the employer (see Land Registry v Houghton and Ors UKEAT/0149/14 at paragraphs 8 and 9 and Hensman v Ministry of Defence UKEAT/0067/14 at paragraphs 41, 42 and 44). The exercise required of the ET in this regard is thus the same as that identified in Hardy & Hansons plc v Lax [2005] ICR 1565 CA (albeit that case was concerned with an indirect discrimination claim), see per Pill LJ as follows:

"32. Section 1(2)(b)(ii) requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Barry v Midland Bank plc [1999] ICR 859) and I accept that the word "necessary" used in Bilka-Kaufaus [GmbH v Weber von Hartz] [1987] ICR 110 is to be qualified by the word "reasonably". That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word "reasonably" reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the employers' submission (apparently accepted by the appeal tribunal) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.**

33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby [v Accrington and Rossendale College] [2001] ICR 1189 and in Cadman [v Health and Safety Executive] [2005] ICR 1546, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman, the respect due to the conclusions of the fact-finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.**

34. The power and duty of the employment tribunal to pass judgment on the employer's attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of superficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions."

See also to similar effect per Baroness Hale at paragraphs 19 to 26 of CC West Yorkshire Police and Anor v Homer [2012] ICR 704 SC.

1. As the case law thus emphasises, it will be for the ET to undertake a fair and detailed assessment of the working practices and business considerations involved and to have regard to the business needs of the employer (Hensman, paragraph 44). In that context, the severity of the impact on the employer of the continuing absence of an employee who is on long-term sickness absence will no doubt be a significant element in the balance that will determine the point at which their dismissal becomes justified, albeit the evidence that may be required in this respect will be primarily a matter for the ET (see per Underhill LJ at paragraph 45 of O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145).

1. By section 20 EqA it is provided that there is a duty to make adjustments. Relevantly:

"(3) … 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."

1. Section 21 EqA then provides that a failure to comply with the duty to make adjustments for the purposes of section 20 can itself constitute an act of discrimination.

1. The obligation to make reasonable adjustments recognises the particular nature of disability discrimination: equal treatment in this context may not be provided by treating employees in the same way; reasonable adjustments may be required to cater for the special needs of disabled persons, even if that entails such persons being afforded more favourable treatment (see Archibald v Fife Council .

1. The present appeal proceeds on the basis that the ET had legitimately found there was a provision, criterion or practice ("PCP") that placed the Claimant at a substantial disadvantage in comparison with persons who are not disabled. The Respondent's challenge is focused on the ET's approach to the obligation then upon it to assess the reasonableness of the steps it identified, accepting that reasonableness is a matter for the ET, to be determined objectively as to what steps it may be reasonable to take to avoid the identified disadvantage (see section 23(2) EqA and Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 CA per Elias LJ at paragraph 73).

1. As the question of compliance with a duty under section 20 is to be approached objectively, the process followed by the employer, whether or not the steps taken were after consultation and broader enquiry, for example, will not be relevant. Compliance may be entirely fortuitous but still be compliance for the purposes of section 20; conversely, an ET might find that an employer has failed to do that which was reasonably required of it notwithstanding the extent of the consultation and investigation it had undertaken (see per Elias P (as he then was) at paragraphs 71 and 72 of Tarbuck v Sainsbury's Supermarkets Ltd UKEAT/0136/06).

1. As for the assessment to be carried out by the ET, although it is under no obligation to work through a comprehensive checklist of factors in determining the reasonableness of the adjustments that might be made, given the language of section 20(3) - where the steps required are those that are reasonable to avoid the disadvantage - the question whether, and to what extent, the step would be effective to avoid the disadvantage, will inevitably always be an important one (see per HHJ David Richardson at paragraph 59 of Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins . Thus if there was no prospect of the proposed step succeeding in avoiding the disadvantage, it would not be reasonable to have to take it; conversely, if there was a prospect - even if considerably less than 50 per cent - it could be (see per HHJ Peter Clark at paragraph 39 of Romec Ltd v Rudham . The reasonableness of a potential adjustment need not require that it would wholly remove the disadvantage in question: an adjustment may be reasonable if it is likely to ameliorate the damage (Noor v Foreign & Commonwealth Office [2011] ICR 695 EAT per HHJ David Richardson at paragraph 33); a, or some, prospect of avoiding the disadvantage can be sufficient (see per HHJ McMullen QC at paragraph 50 in Cumbria Probation Board v Collingwood UKEAT/0079/08 and Keith J at paragraph 17 in Leeds Teaching Hospital NHS Trust v Foster . All that said, the uncertainty of a prospect of success will be one of the factors to weigh in the balance when considering reasonableness (see per Elias LJ in Griffiths at paragraph 29 and per Mitting J at paragraph 18 in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley .

1. As well as the Claimant's claims of unlawful discrimination the ET was also concerned with her complaint of unfair dismissal, which it was required to determine in accordance with section 98 of the Employment Rights Act 1996 ("ERA"). In this case the ET allowed that the Respondent had made good its reason for the Claimant's dismissal, namely capability. The issue for it was whether that dismissal had been fair for the purposes of section 98(4), a question that it was required to answer by applying the band of reasonable responses test. That - as was observed in Lax - is a different test to that required when determining objective justification for the purposes of a discrimination claim. That said, it is likely that the different test will generally result in the same answer. As Underhill LJ observed in O'Brien:

"53. … the basic point being made by the Tribunal was that its finding that the dismissal of the Appellant was disproportionate for the purpose of section 15 meant also that it was not reasonable for the purpose of section 98 (4). In the circumstances of this case I regard that as entirely legitimate. I accept that the language in which the two tests is expressed is different and that in the public law context a "reasonableness review" may be significantly less stringent than a proportionality assessment (though the nature and extent of the difference remains much debated). But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act. The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately I see no reason why that should be so. On the one hand, it is well established that in an appropriate context a proportionality test can, and should, accommodate a substantial degree of respect for the judgment of the decision-taker as to his reasonable needs (provided he has acted rationally and responsibly), while insisting that the tribunal is responsible for striking the ultimate balance; and I see good reason for such an approach in the case of the employment relationship. On the other, I repeat - what is sometimes insufficiently appreciated - that the need to recognise that there may sometimes be circumstances where both dismissal and "non-dismissal" are reasonable responses does not reduce the task of the tribunal under section 98 (4) to one of "quasi-

54. [sic] Wednesbury" review: see the cases referred to in para. 11 above. Thus in this context I very much doubt whether the two tests should lead to different results.

55. [HHJ] Serota [QC] dealt with this point only briefly, at para. 137 of his judgment, where he said:

"While in determining if a dismissal is discriminatory, contrary to section 15 of the Equality Act 2010, it may be appropriate to carry out a balancing exercise the test is objective and therefore it is inappropriate to import the reasonable range of responses considerations relevant to unfair dismissal."

I respectfully disagree with that formulation. The test under section 98 (4) of the 1996 Act involves is objective, no less than the test under section 15 of the 2010 [sic]."

1. More specific guidance as to the approach to the range of reasonable responses test in a capability dismissal case was provided by the EAT, Phillips J presiding, in East Lindsey District Council v Daubney [1977] ICR 566 EAT (see pages 571D-572C).