G v The S NHS Trust and AC: 1302652/2022 and 1307662/2023
EMPLOYMENT TRIBUNALS
Case No 1302652/2022, 1307662/2023
Between
GClaimantThe S NHS Trust and ACRespondent
Before
: Employment Judge FaulknerIn person for claimantMr B Williams (instructed by Counsel) for respondentDate 24 January 2025
JUDGMENT
[1]The relevant period for the purposes of assessing whether the Claimant was a disabled person within the meaning of the Equality Act 2010 is agreed to be March 2020 to May 2022.[2]The Claimant was a disabled person as so defined by reason of the impairment of hypothyroidism from well before March 2020 until April 2021.[3]The Claimant was a disabled person as so defined by reason of the impairment of chronic rhinosinusitis from November 2020 until May 2022.[4]The Claimant was not a disabled person as so defined by reason of the impairment of anxiety disorder at any time during the relevant period.
REASONS
Hearing
[1]This one-day Public Preliminary Hearing was convened to deal with the following issues: 1.1. Whether the Claimant was at the relevant times a disabled person within the meaning of section 6 of the Equality Act 2010 (“the Act”). 1.2. Whether the beliefs on which she relies for complaints of religion or belief discrimination were beliefs within the meaning of section 10 of the Act. 1.3. Whether the Claimant required permission to amend her Claim to add complaints of health and safety detriment within the meaning of section 44 of the Employment Rights Act 1996 (“ERA”) and protected disclosure detriment within the meaning of section 47B ERA, and if so, whether permission should be granted. 1.4. Whether the Tribunal has jurisdiction to hear certain of the Claimant’s other complaints. 1.5. Finalising the issues to be determined at a Final Hearing. 1.6. Fixing a date for that Final Hearing. 1.7. Making Case Management Orders to enable the parties to prepare for that Hearing.[2]It was abundantly clear that a one-day listing was wholly inadequate for dealing with all of the above, the matters at paragraphs 1.1 to 1.4 above being fully contested. It was agreed therefore that I should focus on dealing with the question of whether the Claimant was a disabled person. Evidence and submissions on that issue alone did not conclude until after 4.00 pm (so that Judgment had to be reserved). I therefore listed a further Public Preliminary Hearing and made Case Management Orders accordingly, details of which have been provided to the parties separately.[3]The parties provided a bundle of 649 pages. I read the first 140 pages before the Hearing commenced, which included the Claimant’s impact statement dated 11 November 2022. I made clear that, not least to have any hope of concluding evidence and submissions on disability in the time available, I would not read or take into account any further documents unless explicitly taken to them by either party. This included the Claimant’s GP records and any other medical documents. I heard extensive oral evidence from the Claimant, given in response both to crossexamination by Mr Williams and a number of questions from me (adopting the inquisitive approach to this issue enjoined by the case law) and was taken to various additional documents as a result. I then heard submissions from both parties.[4]The findings of fact set out below are based on this evidence and made on the balance of probabilities. Any page references below are references to the bundle. I have read during my deliberations the entirety of any document I was taken to in oral evidence, including entries around the various GP records referred to, so as to ensure I consider them in context, though of course I have not read the GP records in their entirety. Whilst there are two Respondents to this Claim, all references in these Reasons to “the Respondent” are to the First Respondent. I will refer to the Second Respondent as AC.[5]I should also record that on a couple of occasions the Claimant said she felt like she was being “interrogated” by Mr Williams and that this was unfair. As I explained, being questioned about one’s case is an ordinary part of employment tribunal litigation, I saw nothing improper in the Respondent disputing that the Claimant was a disabled person in this particular case, and there was certainly nothing unfair or improper about the content of Mr Williams’ questions or the manner in which he put them. The Claimant became distressed at times when giving her evidence, and was given opportunity for a break in order that she might feel more composed.
Issues
[6]The Respondent accepts that the Claimant had, from March 2020 to May 2022 (“the relevant period”), the physical impairments of chronic rhinosinusitis and hypothyroidism and the mental impairment of anxiety disorder. I briefly discussed with the parties at the outset the question of the relevance of hypothyroidism and anxiety disorder to the Claimant’s complaints. It quickly became evident that this was not a point capable of swift resolution and it was therefore agreed that all three impairments should be considered – though that is an issue that may need to be revisited at the further Public Preliminary Hearing.[7]Accordingly, in relation to each impairment, it was agreed that I had to decide: 7.1. Whether, throughout the relevant period or at any point during that period, it had an adverse effect on the Claimant’s ability to carry out normal day to day activities. 7.2. Whether that effect was substantial. 7.3. Whether that effect was long-term.[8]The Claimant made reference in her evidence to a broader auto-immune disease but confirmed that she does not rely on it in relation to this Claim.
Facts
[9]It is not necessary for me to record in any detail the Claimant’s substantive complaints or the background to them. These were largely set out in a Case Management Summary from a Hearing in December 2022. She is employed as a Ward Sister on the Oncology Ward at the S Hospital, having been employed by the Respondent since 2015. After ACAS Early Conciliation from 23 March to 4 May 2022, she submitted a Claim Form on 27 May 2022 which included complaints of disability discrimination. At the heart of her Claim is the wearing of surgical masks as part of the response to the Covid-19 pandemic and, chronologically later of course, the requirement for the Covid-19 vaccination. She has not been in the workplace since October 2020, for part of that time working from home.[10]Before dealing in turn with the Claimant’s evidence regarding each impairment, I note that I am conscious of the need to assess their cumulative impact (see further below). In any event it is not possible to deal with each impairment entirely discretely given how the evidence was presented. I should also say a brief word about the evidence generally and the approach that I have taken to it.[11]I do not accept the Respondent’s submission to the effect that I should disregard the Claimant’s oral evidence about the impact of her impairments given that they were not spelt out in the impact statement. I say this because she is a litigant-in-person with no previous experience of the employment tribunal, it is perhaps unsurprising as a nurse that she would focus on symptoms of the impairments rather than the impact on day-to-day activities which is the focus of the legislation, and furthermore I was sure on hearing her that she was doing her best to recount the impact truthfully and accurately. I do however accept the Respondent’s submission that it is important to pay due regard to the contemporaneous documentary evidence. If and where that contradicts the Claimant’s oral evidence, I prefer the contemporaneous record, given in particular that the Claimant’s evidence was at times unclear, but it must be said that on careful consideration what the Claimant told me was in various significant respects borne out by what she said to medical professionals and the Respondent at the time as my findings of fact make clear. Chronic rhinosinusitis[12]This impairment was diagnosed on 30 April 2021.[13]The Claimant provides in her impact statement a long list of the symptoms of the impairment, including insomnia, blurred vision, headaches, nasal drip and anxiety. It reads like a list of the symptoms of the condition generally, but I am prepared to accept it as the Claimant’s description of the symptoms she experiences, noting however that the statement does not identify, at least not with any precision, the effects of the impairment and its symptoms on her ability to carry out normal day-to-day activities. The Claimant’s evidence in that regard was elicited in her oral testimony.[14]The Claimant says that breathing became a “massive problem” after a nose operation in November 2019. She had to mouth-breathe because of congestion/obstruction in the nasal passages. She says not being able to breathe properly made (and still makes) everything more difficult: 14.1. She did not sleep well, waking up because she could not breathe. As a result, she frequently went to bed early. 14.2. As a result of not sleeping well, she was more tired and her socialising reduced, for example attending motorbike racing which she had previously enjoyed. 14.3. She says that another result of her tiredness was that she was more prone to anxiety and memory problems. 14.4. When she gets a sinus infection, she has to go to bed, because of fatigue and headaches (light creates a problem for her). At present, this happens a couple of times a month; she cannot recall its frequency in 2020 and 2021. These episodes usually resolve within 48 hours using anti-inflammatory herbs and nasal rinses (see below). 14.5. She could not wear her spectacles comfortably for 18 months after the nose surgery. 14.6. She also could not smell or taste properly.[15]The effects on the Claimant were made worse if she wore a face mask or covering, which made her feel like she could not breathe, which in turn she says impacted on her concentration both at work and outside of work.[16]At page 364 there is a record of a discussion between the Claimant and AC, prepared and signed by the latter. It is dated 28 February 2020 in the heading, but signed 1 July 2020. I take the latter as the correct date, given both the detailed discussion of Covid-19, which in February 2020 was only just emerging as a national issue, and the reference to the Claimant’s imminent explant surgery which took place in August 2020 (see below). The note includes reference to wearing of face-masks. The Claimant is recorded as saying that she had “persevered with it and [was] managing with more breaks”. She told me that it was agreed she could wear them just under her nose, so that there was no breathing issue, but was later told she had to wear it properly which made her unwell. She also described to AC having had Covid, making her the “most unwell [she had] ever been”.[17]On 13 November 2020 (pages 325-6), the Respondent’s Occupational Health Service (“OH”) reported the Claimant as saying that she was unable to wear a mask for longer than five minutes due to pain, and that since an operation on her nose in November 2019 she had experienced pain, difficulty breathing and pins and needles. The Claimant says this does not mean her breathing difficulty was only related to her nasal problem, as in 2021 her GP advised her that it was because of her body’s reaction to her auto-immune disease, namely hypothyroidism.[18]A report of an ENT specialist, Mr R Harris, dated 30 April 2021 is at pages 453-4. He referred to the Claimant’s symptoms of nasal obstruction, saying that her air flow was poor and her nose “extremely rhinitic” and that most of her symptoms were “due to inflammation within the nose and sinuses”. He recommended Flixonase (an inhaler, to be sprayed into the nasal passage) and a nasal rinse, Nelimed (to flush the nasal passage). He also said that on examination the Claimant was “systemically well”. In respect of that last comment, the Claimant says Mr Harris is not a medical expert, by which she means in relation to issues other than those within his specialism. As already indicated, she insists the problems wearing a mask were caused by hypothyroidism as well (see below).[19]The notes between December 2019 and 25 August 2021 (pages 150 to 156) show that the Claimant informed her GP she had no problem with her chest, but had breathing issues, constant middle head pain, a croaky voice, nasal discharge and pain wearing a mask. There is no reference to sleep or memory issues in these particular entries in the records, though the Claimant says she must have told the GP about those things. The records also indicate the Claimant saying that her sinus issue was worse after her nose surgery. The OH report dated 29 November 2021 (pages 333 to 336) recorded the Claimant as saying that “nasal rinses have vastly improved symptoms of congestion and nasal drips”, and dairy-free eating had also improved her nasal symptoms.[20]The Claimant manages the effects of this impairment by for example reducing her exposure to irritants, an anti-inflammatory diet (not eating gluten is important), and exercise. As noted above, in April 2021, Mr Harris recommended Flixonase and Nelimed. A nasal steroid spray, Fluticasone, was first prescribed on 25 September 2021. The Claimant tries to treat the condition by taking CBD (a legal cannabisderived product without the side effects of cannabis itself), when required, and an analgesia. The steroid reduces inflammation so that the Claimant can breathe more easily. Hypothyroidism[21]The Claimant received a diagnosis of hypothyroidism, which she describes as an auto-immune disease, on 2 September 2019. Again, she provides in her impact statement a long list of the symptoms of the impairment, including cold sensitivity, low metabolism, constipation, decreased concentration and memory, and joint pain. Again, it reads like a list of the symptoms of the condition generally, but I am prepared to accept it as the Claimant’s description of the symptoms she experiences, noting again however that the statement does not identify, at least not with any precision, the effects of the impairment on her ability to carry out normal day-to-day activities, though it does refer to difficulty sleeping, spending a lot of time alone, low energy, and the ability to focus and make decisions at work. Again, the Claimant’s evidence in that regard was principally elicited in her oral testimony.[22]The Claimant says, and it was not disputed, that the impairment arose from the insertion into her body of medical devices in 2013, which within six months (see page 272) caused a reaction. They were removed (an “explant”) on 14 August 2020, which the Claimant says helped enormously, setting her on what she describes as her healing journey. There was some immediate improvement, including in relation to her breathing and her sight; other things improved gradually. She says she was generally in a lot better health a year after the explant.[23]The Claimant says that this impairment resulted in the following – though she was largely imprecise as to over what period, something I return to in my analysis: 23.1. The impairment made her immune system hyper-sensitive, causing tiredness and issues with concentration and processing of information, which was made worse if (because of the nasal condition) she did not get enough oxygen. She would have to write things down to ensure she did not forget to do things for patients. Outside of work, she would forget that food was in the oven, to put the fuel cap back on her car, and how to get to places. This was not a consistent impact, but periodic, depending on the extent of the inflammation. She describes a progressive decline in memory from 2013. She was not able to return to work in 2016/2017 whilst she was concerned about lapses in memory and concentration. 23.2. She also says her fatigue affected her relationships as she was not socialising, because she had to sleep a lot more in order to get to work. She no longer enjoyed watching movies or cooking good food and did not do the house cleaning – all of which had been high priorities for her previously (she described healthy eating and tiredness as having been “obsessions”). She also used to love reading but that changed because she would forget what she had read. 23.3. She could not do her nightshifts (which had previously been her normal working pattern). 23.4. She could not lift heavy objects because of the surgery.[24]At page 154 there is a GP note dated 28 February 2020 recording the Claimant’s statement that she had felt fatigued for a long time, “but worse last 6 months”. The further GP note dated 19 February 2020 (page 155) records, “Hypothyroidism, still feeling tired, hair loss, concentration difficult”, whilst at page 156 on 17 December 2019, the note describes “various issues over the past 5 years, fatigue, headaches, depression, bloating, hypothyroid etc.”.[25]At pages 270 to 273, there is an email from the Claimant to her GP dated 30 June 2020, in which she said that before the implant surgery in 2013, she had good health, was carefree and had a busy social life, running between 5 and 10 km two or three times a week and going to the gym. She described that after the implant surgery she had issues with phlegm, regular night sweats, deterioration in her eyesight, knee pain, and mood swings. She stopped going out at weekends, becoming more and more isolated. She relocated back to where her current home is from Manchester, was helped by buying a dog and through “sheer determination and God’s great mercy” stopped taking all medication, returned to the gym and determined to get well again. She said that “from 2017 to present my mood has been stable”. She recorded that she did however have tiredness and memory issues, forgetting how to get to destinations she had been to before. She referred also to the GP’s diagnosis of hypothyroidism and the advice that she would be on medication for her lifetime. The GP then wrote a letter to a surgeon in July 2020 (page 276), leading to the August 2020 explant surgery.[26]The file note of the conversation on 1 July 2020 between the Claimant and AC at page 364 records difficult personal circumstances for the Claimant, and the Claimant saying that the implants were poisoning her.[27]The OH report of 22 September 2020 (pages 316-7) describes the Claimant as “functioning well day to day” after the explant surgery and recorded that she had said she felt ready to return to work, though she does not accept that the symptoms of the condition had subsided, saying she had carried on working with them for years, because she had ways of coping (see below). She says that “functioning well” meant she was able to look after herself at home.[28]The Claimant managed the effects of this impairment by sleeping (she says excessively) and, as she puts it, looking after her weight. As to medication, she took levothyroxine from June 2019 (see page 157) until August 2020 when she had the explant surgery, following which she transitioned to using natural medication, namely iodine. She had acupuncture for two months. She also took pain relief (her statement refers to co-codamol). Anxiety disorder[29]In her impact statement at page 136, the Claimant describes her anxiety disorder as “longstanding”, saying at page 139 that she suffered from anxiety and depression in 2002, after giving birth to her first child and when her mother was terminally ill. She experienced another “bad spell of depression and anxiety” for fifteen months from August 2015. I was taken to no other evidence at all about those earlier periods of time.[30]In her file note of 1 July 2020, AC was “worried about [the Claimant’s] mental state”.[31]Whilst the Respondent says she wore a face mask in clinical areas until 13 October 2020 when she reported to AC that it was too painful on her nose, the Claimant says that being “put under duress” as she sees it, to wear a mask, made her very anxious, and I note again her evidence that she had been wearing it below her nose until challenged about that. The Claimant was assessed by OH in respect of her mental health on 28 October 2020 (pages 323-4), having been referred because of increased anxiety when wearing a mask due to her sinus problem. The OH specialist recorded that she said “her only anxiety is around wearing a mask in the workplace”, which the practitioner described as normal and not something she would consider to be “a mental health difficulty”, suggesting that she be reviewed for an assessment of mask-wearing on her physical health.[32]The GP notes at pages 148 and 149 show that the Claimant discussed a “stressrelated problem” and “anxiety disorder” with her GP in December 2021. She next discussed this with the GP in June 2022, reporting that she felt very low, was not sleeping and was anxious. She did not want any anti-depressant medication, taking herbal medicines instead.[33]Whilst the Respondent suggests that the Claimant’s anxiety was caused by her disputes at work, in particular in relation to mask-wearing, the Claimant says that her pre-existing anxiety was exacerbated by the Respondent’s actions, including – as she sees it – pressurising her to get the Covid-19 vaccination even though she was at home. She has had a long period away from the workplace and says she now has anxiety about returning to work.[34]She says in her impact statement that social anxiety has forced her to withdraw from activities and describes insomnia, fatigue, chest pains, panic attacks and low concentration. Whilst again, I am prepared to accept that the Claimant has experienced these symptoms, I note once more that the effects of the impairment on day-to-day activities are not (or at least not clearly or in any detail) set out in the statement. There was no oral evidence of note from the Claimant as to the effects of this impairment.[35]The Claimant was prescribed 10 mg amitriptyline for low mood and anxiety in February 2016, 50mg sertraline for anxiety and depression in September 2016, diazepam (2.5 to 5 mg) for anxiety with depression in October 2016, and also attended counselling. After counselling, and joining a religious group, her depression lifted and prescribed medication was discontinued because of what she describes as her strong belief in natural homeopathy. Whilst medication has been offered to her repeatedly since 2016, she dislikes the side effects and so has taken “Rescue Remedy”, CBD oil and magnesium.[36]Counselling and Improving Access to Psychological Therapies (“IAPT”) have led to the Claimant socialising more. The OH report dated 29 November 2021 (pages 333 to 336) recommended that she access cognitive behavioural therapy (“CBT”) as this was likely to “stop negative cycles by breaking down perceptions/barriers she has regarding wearing masks”. She recently completely 16 weeks of CBT.[37]Finally: 37.1. In relation to all three impairments, there was no medical opinion before me of what the effects on the Claimant would have been of removing any of her medication. The Claimant herself says that she desperately needed it and could not function without it. When she has forgotten or been unable to take iodine for example, she has felt more tired and when she has not taken magnesium, she has felt more anxious. 37.2. The Claimant referred in closing submissions to a report from a consultant in occupational medicine at pages 645 to 646. It appears to be in connection with her application to another Trust for bank work. As she says, it indicates the consultant’s view that she is a disabled person under the Act (though it seems not in relation to anxiety). I can attach no weight to it however, because it was written in May 2023, a year after the relevant period. In any event, it does not clearly state which conditions the consultant is referring to in making his assessment.
Law
[38]Section 6(1) of the Act provides that: “A person (P) has a disability if –(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”.[39]Schedule 1 to the Act provides at paragraph 2 that “The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected”. Paragraph 2 goes on to say that “If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.[40]Schedule 1 also provides at paragraph 5 that “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if –(a) measures are being taken to treat or correct it, and(b) but for that, it would be likely to have that effect. (2) Measures includes in particular medical treatment …”.[41]Section 212 of the Act provides that “substantial” means “more than minor or trivial”.[42]In Kapadia v London Borough of Lambeth [2000] IRLR 699, the Court of Appeal accepted a submission that it was for a claimant to prove that the impairment had a substantial adverse effect on his/her ability to carry out normal day-to-day activities or to prove that the impairment would have had such an effect but for the fact that measures were being taken to treat or correct the condition. Having in mind that burden, the Tribunal’s task is to look at the evidence presented to it and decide the question on the balance of probabilities.[43]Goodwin v Patent Office [1999] ICR 302 is well-established and well-regarded Employment Appeal Tribunal (“EAT”) authority for the questions to be asked in determining disability, encouraging Tribunals to take an inquisitorial approach to the issue. The EAT stated that the legislation requires a tribunal to look at the evidence by reference to four different conditions. Taking account of amendments to the legislation since the decision, the questions are stated by the EAT as follows: “(1) The impairment condition. Does the applicant have an impairment which is either mental or physical? (2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry out normal day-to-day activities ... and does it have an adverse effect? (3) The substantial condition. Is the adverse effect (upon the applicant’s ability) substantial? (4) The long-term condition. Is the adverse effect (upon the applicant’s ability) longterm?”. The EAT stated that it would be useful (though subsequent case law makes clear it is not essential) for tribunals to consider these questions in sequence, though it remains necessary to make an overall assessment and not “take one’s eye off the whole picture”. The EAT went on to give guidance in respect of each question. In respect of the adverse effect condition, it stated that “the focus of attention ... is on the things that the applicant cannot do or can only do with difficulty, rather than on the things that the person can do”. This should be compared with what he/she could do without the impairment.[44]Mr Williams referred me to an employment tribunal decision in Convery v Bristol Street Fourth Investments Limited 1807364/2020, in which it was held that wearing of face masks constituted a normal day-to-day activity for the purposes of the Act. Whilst of course the decision is not binding on me, the point to be made is that Mr Williams agrees that it was such an activity, which seems to me a sensible concession given that the relevant period in the case before me, or at least a large part of it, was when the country – indeed the world – was grappling with various waves of the Covid19 pandemic and mask-wearing became a normal part of everyday life.[45]Mr Williams also briefly referred to Herry v Dudley Metropolitan Borough Council [2017] ICR 610, specifically the EAT’s comment that “experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities … an Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person’s character or personality”. The Respondent before me concedes that the Claimant had the mental impairment of anxiety disorder. Mr Williams’ point therefore seems to have been that it did not have a substantial effect on her ability to carry out normal day-today activities which was long-term, because it was the (transient, as he would say) result of her dispute with the Respondent over mask-wearing.[46]I have noted the following paragraphs from the 2011 Guidance on matters to be taken into account in determining questions relating to the definition of disability (“the Guidance”) in relation to the question of substantial adverse effect: 46.1. Paragraph B4 says it is important to consider whether an impairment’s effects on more than one activity, when taken together, could result in an overall substantial adverse effect. 46.2. Paragraph B6 (see also Ministry of Defence v Hay [2008] ICR 1247) says that where there are multiple impairments, any one of which would not have a substantial adverse effect, account should be taken of whether they do when they are taken together. 46.3. Paragraph B7 says that account should be taken of how far a person can reasonably [emphasis original] be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. 46.4. Paragraph B9 says account should be taken of where a person avoids doing things which, for example, cause pain or fatigue, or avoids doing something because of a loss of energy. It would not [emphasis original] be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person.[47]As indicated above, Schedule 1 paragraph 5 of the Act requires consideration of how an impairment would affect day to day activities if medical treatment ceased. According to the House of Lords decision in SCA Packaging v Boyle [2009] ICR 1056, what must be asked is what the effect of the impairment would be if treatment stopped. Whether it is likely that the impairment would have the required effect in that situation means it “could well happen” – see also paragraph C3 of the Guidance. The EAT in Fathers v Pets At Home Ltd and another [2013] UKEAT/0424/13 said that “relatively little evidence may in fact be required to raise this issue”, in other words to require a tribunal to consider and address the point of the effects in the absence of medical treatment. Of course, what a tribunal makes of the evidence before it on this issue very much depends on the individual case. Where treatment has permanently reduced or extinguished the effects of the impairment, that treatment is not to be discounted in making the assessment of the effects on the ability to carry out normal day-to-day activities.[48]In Royal Bank of Scotland PLC v Morris [2012] UKEAT/0436/10, the EAT upheld an appeal against the tribunal’s decision that the Claimant was a disabled person. On the question of the effect of medication (what is sometimes known as “deduced effects”), the EAT found there was no explicit evidence and stated, “This is just the kind of question on which a tribunal is very unlikely to be able to make safe findings without the benefit of medical evidence”. Similarly, “it would be difficult for the Tribunal to assess the likelihood of [the risk of recurrence of the required effects under paragraph 2(2) of Schedule 1] or the severity of the effect if it eventuated, without expert evidence”. The EAT concluded, “The fact is that while in the case of other kinds of impairment the contemporary medical notes or reports may, even if they are not explicitly addressed to the issues arising under the Act, give a tribunal a sufficient evidential basis to make common sense findings, in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance. It may be a pity that that is so, but it is inescapable given the real difficulties of assessing in the case of mental impairment issues such as likely duration, deduced effect and risk of recurrence which arise directly from the way the statute is drafted”.[49]As to whether the required effects of an impairment were long term, again the SCA Packaging judgment makes clear that where a tribunal is required to assess whether those effects are “likely” to last for at least 12 months, this means that it “could well happen”. As paragraph 2 of Schedule 1 to the Act says, and paragraph C7 of the Guidance confirms, it is not necessary for the effect to be the same throughout the period being considered. What has to be considered is whether the effects were “likely” to recur, that word again meaning “could well happen”.[50]All of the questions I have to consider, including the long-term question, have to be assessed as at the time of the alleged discriminatory treatment - Cruickshank v VAW Motorcast Limited [2002] ICR 729, EAT. The Court of Appeal said in McDougall v Richmond Adult Community College [2008] ICR 431 that in assessing the likelihood of effects lasting for at least 12 months, tribunals should only consider the evidence available at the time of the discriminatory acts. The assessment thus requires a prophecy of future events at those points, rather than recourse to actual evidence of subsequent events. This is reflected in paragraph C4 of the Guidance. In similar vein, on the question of whether the required effect had lasted 12 months, the EAT in Tesco Stores Limited v Tennant [2019] UKEAT/0167/19, held that it is the date of the alleged discriminatory act(s) at which this must be assessed, with the question being whether at that point there has been “12 months of effect”.
Analysis
[51]My conclusions on the questions identified above are of course based entirely on the facts as I have found them and the application of the law to those facts. The Respondent concedes the impairment question, so that I need say nothing further about that. I make a few preliminary comments about the remaining questions: 51.1. First, the burden is on the Claimant to establish that she was a disabled person, including establishing that the impairments, or at least one of them, had an adverse effect on her ability to carry out normal day-to-day activities. 51.2. Secondly, the Claimant agreed that the three key effects on her ability to carry out normal day-to-day activities were related to the following symptoms: 51.2.1. Difficulty breathing, which she says was connected to both chronic rhinosinusitis and hypothyroidism. 51.2.2. Tiredness, which she said was connected to the same two impairments. 51.2.3. Memory and concentration issues, which arose from not sleeping and were again connected to the same two impairments. She also said that variation in her mood was a key effect of the impairments but gave no oral evidence in relation to that and other than its being referenced in the impact statement, I was taken to no documentary evidence relating to it either. I therefore discount it. 51.3. Thirdly, it is irrelevant that the hypothyroidism and (to some extent at least) the chronic rhinosinusitis arose from surgery which the Claimant chose to undertake. 51.4. Fourthly, in relation to the explant, given the apparently permanent benefits of that surgery for the Claimant, I am not required to consider what the effects on her ability to carry out normal day-to-day activities would have been if she had not had it and if the Claimant was a disabled person by reason of hypothyroidism before it, I am required to assess whether that remained the case thereafter. 51.5. Fifthly, I remind myself of what is stated above, namely that the multiple effects of an impairment and/or the combined effects of the various impairments, are important to consider in answering the adverse effects question and the question of whether they are substantial. 51.6. Finally, the question before me is of course nothing to do with whether the Respondent knew or should reasonably have known that the Claimant was a disabled person, by reason of any of the impairments or all of them, but whether I conclude she was in fact a disabled person based on the evidence presented to me.[52]I now turn to consider the remaining Goodwin questions in relation to each impairment, before returning to review the whole picture emerging from the impairments taken together. As subsequent case law makes clear, it does not especially matter which order the statutory questions are dealt with, provided each is addressed. Hypothyroidism[53]I deal with hypothyroidism first, as on the evidence presented to me, this impairment arose first in time chronologically.[54]The first question is whether this impairment at any time in the relevant period had an impact on the Claimant’s ability to carry out normal day-to-day activities. Struggling to remember one’s daily responsibilities is clearly an adverse effect on an everyday task. Remembering those responsibilities at work is so commonplace as to be routine, and I note too the Claimant’s evidence of things she forgot to do outside of work, which were in themselves routine, such as putting a petrol cap back on a car and getting to familiar places. Reading a book is also a normal daily activity and forgetting what one has read, thus giving up on reading, is an adverse effect. The effects on the Claimant’s memory and concentration appear to have been periodic, but they need not have been constant to be adverse, and I find that they were. The Claimant being fatigued meant that she had limited engagement in social activities, did not cook healthy food or thoroughly carry out cleaning tasks at home. Again, those are plainly normal daily activities which were adversely affected.[55]The Claimant’s case that her difficulties with concentration and tiredness (and their effects as just summarised) resulted from hypothyroidism is confirmed by the GP notes from December 2019 and February 2020, and underlined by her long email to the GP on 30 June 2020, which highlighted the impact on her socialising in particular, whilst in relation to memory problems she specifically recorded what she told me, namely that she would forget how to get to familiar places. I record therefore that I am satisfied that the adverse effects on normal daily activities referred to above resulted from this impairment.[56]For completeness, I discount the Claimant’s difficulty lifting heavy objects, partly because she provided no detail of it, but also because this was evidently the result of the explant operation, and therefore (a question I come to below) not a long-term effect of the hypothyroidism. I also discount the fact that the Claimant did not continue working nightshifts, in part because I am hesitant to conclude that this is an everyday activity (I accept many people do it, but it is an activity specific to certain roles) but principally because even if it was a day-to-day activity, again the Claimant gave me no detail about it, most importantly over what period she was unable to work on this basis, which is of course highly relevant to the long-term question. Finally, whilst the Claimant says that her breathing difficulties were in part due to hypothyroidism, saying her GP advised her that was the case, I was not taken to any evidence of that and so discount that also.[57]Were the effects I have accepted were in play substantial in nature, namely more than minor or trivial? The answer to that is obviously yes. First, this is the case when one considers the change in the Claimant’s activities, from someone who was very active socially, very keen on home-cooking and cleanliness and who also experienced no notable issues with her memory prior to the implant surgery. Secondly, when one takes the various effects together – avoiding social activities, being too tired to carry out key household tasks as well as before and forgetting things as basic as how to get to a place one has been to several times – it is plain that these are not minor or trivial changes which the impairment brought about in the Claimant’s daily life, even if they were variable rather than constant.[58]I will return shortly to the question of deduced effects, namely the impact of this impairment on the Claimant’s daily activities without medication, but will deal first, for reasons that will become obvious, with the question of whether the substantial adverse effects were long-term.[59]The Claimant was diagnosed with hypothyroidism on 2 November 2019, but was plainly experiencing the adverse effects before then, essentially within 6 months of the implants in 2013. I note that on 28 February 2020 she told her GP that her fatigue had been worse for the previous 6 months (that is, from September 2019), but the longterm nature of the impact of this condition on her daily life is confirmed by what she reported to her GP on 17 December 2019, when she said that she had been experiencing the various issues she described for 5 years, and by her email to the GP of 30 June 2020. I am in no doubt therefore that as at the date of the explant surgery on 14 August 2020, hypothyroidism had had a substantial adverse impact on the Claimant’s ability to carry out day-to-day activities for much more than 12 months. She was from March 2020 to that point plainly a disabled person by way of this impairment.[60]It is equally plain that the explant surgery brought about a transformation in her symptoms, and thus her ability to carry out day-to-day activities, and that this was permanent in its beneficial effects. That means that I must assess from when that was the case, because at that point it seems clear that the statutory definition was no longer satisfied. The Claimant was then in a position equivalent to someone who has had a pin inserted in a bone for example, permanently correcting what was previously wrong.[61]I accept what she says in response to Mr Harris’ statement that she was “systemically well” in April 2021, namely that he did not meet her to discuss hypothyroidism, nor could he comment on its effects. It is however the clearest objective indication I have of how the Claimant was presenting, 9 months after the explant. She herself says she was generally in much better health a year after, in August 2021, and was in no doubt about the transformative effects of the surgery.[62]There is a brief reference to her immediate post-explant condition in the OH report of 22 September 2020, which described the Claimant as functioning well day-to-day and feeling ready to return to work. The Claimant says this was because of her coping mechanisms and only meant that she was able to look after herself at home. I am more than prepared to accept that her feeling able to return to work is not evidence that at this point there was no adverse impact on her ability to carry out daily activities. Quite obviously, many disabled people work, and do so successfully. As to the phrase “functioning well”, that clearly signals an improvement in what the Claimant was now able to do, but it was self-evidently not a detailed statement, providing no understanding of how she was managing to function well, which she says – and I accept – was only by sleeping excessively. The adverse effects of the impairment had, even by her own evidence, abated to some extent immediately after the explant, but whilst someone with this condition can reasonably be expected to ensure they sleep normally, having to sleep excessively as a coping mechanism is not in the same category. Accordingly, whilst by her own admission she was able to look after herself at home, so that I can safely conclude she was at that point able to cook and clean more like she did before the impairment first arose, I accept at face value her evidence that the wholesale positive effects of the explant were not immediate, but more gradual: as I have said, I am clear she was seeking to provide me with a straightforward account. There did come a point however when the full benefits of the surgery were realised. The evidence is limited, but it seems to me, even accepting the caveats provided by the Claimant, that Mr Harris’ comment in April 2021 is instructive in this regard. It is also not far removed from the Claimant’s own case that she was generally in much better health a year after the surgery.[63]Based on the evidence presented to me, I conclude therefore that the Claimant was a disabled person by reason of hypothyroidism from well before March 2020, through to April 2021. At that point the permanent effects of the explant meant that she was no longer a disabled person on this basis.[64]The remaining question is whether she remained such thereafter, when I take out of account the beneficial effects of medication. She was taking levothyroxine until August 2020, but I do not have to consider how she would have been without that, given my conclusion above. The question is what the position would have been had she not been taking iodine after April 2021. I saw no evidence at all which would provide any secure basis on which to answer this question, other than the briefest comment from the Claimant that she has felt more tired when forgetting to take it. Morris urges caution in answering such questions without medical expert input in relation to mental impairments, but I feel similarly unable to answer the question in relation to this physical impairment, without some reference to medically informed comment. I cannot guess or take judicial notice of the position the Claimant would have been in without iodine. My conclusion in relation to hypothyroidism thus remains that the Claimant was a disabled person by way of that impairment from well before March 2020 until April 2021. Chronic rhinosinusitis[65]The Claimant’s case is that because of this second impairment, she did not sleep well because she could not breathe through her nose. I have already set out that I accept her oral evidence except to the extent that it is contradicted by any contemporaneous document. In this instance, there is nothing in the documentary evidence I was taken to that contradicts her case. I accept that difficulty sleeping was not mentioned in the GP records from December 2019 to April 2021 but the Claimant did clearly refer to breathing issues in those consultations and it is not difficult to accept that this had an impact on her sleep. Mr Harris’ report from April 2021 bears out, at least in terms of setting out what the Claimant explained to him, that she had significant difficulty breathing through her nose. He says in terms that her air flow was poor and that she was extremely rhinitic.[66]One could perhaps get lost in a semantic argument about whether sleep is an “activity”, but it is clearly right to proceed on the basis that it is a normal part of daily life and that not being able to sleep as one has before is an impact which can in turn be said to be adverse. Furthermore, it had an adverse impact on the Claimant’s ability to socialise, because it caused tiredness and meant that she had to go to bed early. She previously enjoyed attending motorbike racing for example, and did not do so subsequently.[67]I have noted and accept that the condition has made the Claimant vulnerable to sinus infections, which currently put her out of action for around 48 hours a couple of times a month. It is likely that her having to go to bed and being out of action for 48 hours with this level of frequency goes beyond what the general population would experience. The effects of an impairment do not have to be constant in order to be adverse. That said, for whatever reasons, the Claimant was not able to provide any answer to the question of whether this was the case in the relevant period and it must therefore be discounted. The Claimant’s memory problems were very much connected by her in her oral evidence to hypothyroidism, and so I also put those out of account in this context. Wearing spectacles is a normal daily activity for large numbers of people and it may be that not being able to wear them (for 18 months from November 2019) was an adverse effect of the impairment, but the Claimant said nothing about what the impact was or how she coped with and accommodated it. That effect too must be discounted accordingly. Similarly, she said nothing about her sense of taste or smell being impacted, telling me nothing about its extent or how it affected normal day-to-day activities compared to before.[68]Mask wearing is, as I have said, sensibly accepted by the Respondent to have been a daily activity in the relevant period, though even if one were to conclude otherwise, the question of the impact on day-to-day activities during that period would, in my judgment, fall to be assessed based on a mask being worn. The Claimant had worn masks at work for years, so that it seems clear that there was a change in her ability to do this normal day-to-day activity from the point of her nose surgery in November 2019, although it was only a significant issue in practice from around March 2020 when she was required to wear it more extensively because of the measures to combat Covid-19. The Claimant feeling like she could not breathe and thus being unable to concentrate were evidently adverse effects on her ability to carry out daytoday activities. The Claimant’s evidence in that regard is in no sense contradicted by AC’s note of 1 July 2020 – as the Claimant says, she had been wearing the mask below her nose as much as possible – and is borne out by what she reported to OH in November 2020.[69]Was the effect substantial, that is more than minor or trivial? I repeat that I do not regard the Claimant’s ability to attend at work as an indication that the effects were not substantial, though in this specific context I also take into account the oral evidence she gave of her inability to function whilst wearing a mask at work, which was striking. The combination of the impact on the Claimant’s sleep and socialising, and on her concentration when wearing a mask, comfortably exceeded what could properly be described as minor or trivial. She was in effect managing her ability to work by additional sleep and, as a result, avoiding social activities; she could not carry out any of her work functions when required to wear a mask over her nose.[70]This is confirmed by what I regard to be the likely position without medication. The Claimant appears to have used Flixonase or similar and Nelimed or similar since April 2021 and a nasal steroid from September 2021. They helped substantially as the OH report of 29 November 2021 states and it seems clear the Claimant has continued to use them for the rest of the relevant period, that is to May 2022. The “substantial improvement” must of course be discounted. It simply confirms to my mind that there was a substantial – the same word – adverse effect without it. It is not clear when the Claimant began using CBD oil, so I can say nothing further about that.[71]The impairment therefore had a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities. The remaining question is when that was the case and whether (and if so at what point) those effects were long-term.[72]The impairment was diagnosed on 30 April 2021, but that does not mean that it was only an issue for the Claimant from that point. I see nothing in the contemporaneous documents to doubt the Claimant’s case that it was a “massive problem”, as she put it, after her nose surgery in November 2019. Mr Harris’ report from April 2021 bears that out, at least in terms of recording issues the Claimant explained to him. Whilst his view was that the issues experienced by the Claimant were not because of the surgery, first of all he does not say whether in his view they pre-dated or post-dated the surgery, and secondly his letter is objective evidence of what the Claimant reported at the time, namely that it was the surgery that brought about the change. The OH report of 13 November 2020 was to the same effect, whilst the GP notes record the Claimant mentioning breathing issues and pain wearing a mask from December 2019 to April 2021.[73]On the evidence presented to me, I conclude that the adverse effects arose in November 2019. Whilst there is a brief mention in the GP record dated 19 October 2020 (page 151) of the Claimant’s sinus problems being “worse after than were before” the surgery, that is an insufficient evidential basis for me to reach any conclusions about the period before November 2019. By November 2020 therefore, the substantial adverse effects had lasted for 12 months.[74]It is not possible for me to say that at any point prior to November 2020, the adverse effects were likely to last for 12 months or for the rest of the Claimant’s life, as there is simply no evidence on which such a conclusion could be founded. I therefore conclude that the Claimant was a disabled person by reason of the impairment of chronic rhinosinusitis from November 2020 for the remainder of the relevant period, that is until May 2022. Anxiety disorder[75]I can deal with the third impairment somewhat more briefly and begin by saying that I must discount the anxiety issues the Claimant experienced many years before the relevant period. This is not because I lightly dismiss how serious they may have been but because, as I have said, I was given no details about those earlier issues at all, whether in documentary or oral evidence.[76]AC’s note of 1 July 2020 tells me very little, other than that on the occasion of their discussion the Claimant’s mental health was of concern to her. A more important question is what to make of the OH report of 28 October 2020. The Claimant’s anxiety is described in that report as confined to wearing a mask in the workplace. I have already made clear the basis on which I conclude that mask-wearing was during the relevant period an everyday activity, or at least one should assess the impact on ability to carry out normal day-to-day activities in that period when a person was wearing a mask. It seems clear however that the OH specialist concluded that the Claimant’s anxiety about mask-wearing at work was normal, suggesting that it was no different to what one would expect to see in the population generally. In fact, she went further than that and said it was not a “mental health difficulty” at all.[77]The Claimant’s case is that she became anxious because she could not breathe. It is clear to me that the difficulty breathing resulted from her chronic rhinosinusitis (see above). Based on the evidence I was taken to, that is what gave rise to the Claimant’s anxiety and thus her impaired concentration. Whilst I do not think that Herry is relevant or of assistance in this case, because it was not the dispute between the parties as such which seems to have caused the Claimant to become anxious, whether about returning to work or otherwise, but the actual requirement to wear a mask, the evidence of an underlying anxiety disorder in the relevant period is scant.[78]The Claimant discussed anxiety with her GP in December 2021 and June 2022, the latter when she said she was not sleeping. She also says in her impact statement that anxiety caused issues with fatigue and concentration and negatively impacted on her socialising. That is not sufficient in my judgment to establish that the Claimant was a disabled person by reason of this impairment. It is notable (on the adverse effects question) that this issue was only raised twice with the GP, six months apart. On the long-term question, it is notable that the first time it was raised with the GP was very close to the end of the relevant period, such that even had substantial adverse effects been established, there was no basis on which I could say that by May 2022 they had lasted or were likely to last for 12 months or for the rest of the Claimant’s life. I am also without any evidential basis on which to answer the question of whether the impairment would have given rise in the relevant period to substantial adverse effects that were long term if the Claimant had not had the benefit of herbal medicines, IAPT and counselling (the CBT seems to have fallen entirely outside of the relevant period). I note again the strong warning of the EAT about such matters, particularly in relation to mental impairments, set out in Morris.[79]I therefore conclude that the Claimant has not established that she was during the relevant period a disabled person by reason of this third impairment of anxiety disorder.
Conclusions
[80]I have sought to assess the overall and cumulative effects of each individual impairment in my analysis above. As for the cumulative effects of the impairments taken together, I am satisfied that this does not change the conclusions I have already reached. The required effects are not made out in relation to anxiety disorder. As for the two physical impairments, I have made clear that I accept that the tiredness and concentration/memory issues the Claimant highlights, and the substantial adverse effects she had detailed, resulted from both hypothyroidism and chronic rhinosinusitis. The latter impairment has been shown to be a disability only from November 2020 and there is thus no evidential basis on which to find a cumulative effect of the two physical impairments prior to then which would change that conclusion. The former impairment ceased to have the required effects from April 2021 for the reasons I have given, and so there is no need to analyse cumulative effects after that date. It adds nothing to my analysis to assess cumulative effects between November 2020 and April 2021, given that I have found both impairments amounted to disabilities in their own right during that short period.[81]In summary therefore: 81.1. The Claimant was a disabled person as defined by section 6 of the Act by reason of the impairment of hypothyroidism from well before March 2020 until April 2021. 81.2. She was a disabled person as so defined by reason of the impairment of chronic rhinosinusitis from November 2020 until May 2022. 81.3. She was not a disabled person as so defined by reason of the impairment of anxiety disorder at any time during the relevant period.[82]How those conclusions impact the Claimant’s case, and indeed the Response to it, will need to be explored, if it is necessary to do so, at the next Public Preliminary Hearing, in defining and agreeing a final list of issues for the Final Hearing. Signed by:
Conclusion
[83]We refer to our findings of fact at paragraph 19.27 and find that in all these calls, C was asked about whether she would have or has had a Covid vaccination. The first of these occasions PW enquired as to whether C would be vaccinated and on the second and third occasion PW recorded that C did not want to discuss it. C has adduced no evidence at all as to the content and tenor of any of these conversations just making the generalised allegation that she was pressured. We conclude that this allegation is firstly not made out on the facts as simply asking C whether or not she was vaccinated or intended to be vaccinated cannot of itself be regarded as an act of coercion or putting pressure on her. The issue of vaccination was a live and relevant matter at the time of the Covid 19 pandemic and became of particular interest and concern to R once the Vaccine Mandate became a possibility and was introduced. In any event, C has failed to show any connection whatsoever to these questions having been asked by PW because of C’s inability to wear a mask (which is the something arising relied upon). There is no connection at all, and this complaint appears to be misconceived. None of these conversations amounted to unfavourable treatment because of something arising in consequence of a disability and therefore these three complaints are dismissed. Issues 8.1.5.4 to 8.1.5.9 and 8.1.5.17-8.1.5.18 – telephone calls between C and AC and e mails directly from AC to C Issue 8.1.5.4 – telephone call on 15 November 2021[84]We refer to our findings of fact at paragraphs 19.34-37. A discussion on the Vaccine did take place during this conversation. This was initially raised by C and AC did during the conversation ask C whether she had been vaccinated, specifically recording concerns raised by C about its safety and also saying it was a decision for C as to what was best for her. We do not find this gets close to AC putting pressure on C to have the Vaccine and so the facts behind this allegation are not made out. In addition, whatever was discussed about Vaccination on this occasion was not because of C’s inability to wear a mask (the pleaded ‘something arising from disability’). That was a separate topic of conversation and not really connected to Vaccination at all. Therefore this complaint is not made out and is dismissed. Issue 8.1.5.5 – telephone call of 3 December 2021[85]Our detailed findings of fact about this call are at paragraphs 19.42 to 19.46. Vaccination and the Vaccine Mandate was discussed in this call with AC noting that this was a “distressing and stressful conversation” for C. However we do not conclude that what was said in this conversation amounted to AC putting pressure on C to have the vaccination. It records a discussion around C’s concerns and risks to her health and her questions about the legality of the Vaccine Mandate. However AC clearly stated to C that she was not forcing or putting pressure on C to have the Vaccine and that only C could make that decision for herself. She apologised if she had upset C explaining that she was required to inform C of the Vaccine Mandate and what was happening in R as one of the managers of R. Clearly C did feel that she was being pressurised to have the Vaccine, but we do not conclude this was what AC was in fact doing. In any event, C has failed to make any connection at all between the discussion that took place between her and AC about the Vaccine Mandate and C’s inability to wear a mask (which is the something arising she relies upon for the purposes of this claim). C’s inability to wear a mask was clearly not why the Vaccine Mandate was being discussed. This complaint fails and is dismissed. Issue 8.1.5.6 – e mail from AC 6 December 2021[86]As we record at paragraph 19.46, as well as stating this during the conversation on 3 December itself, AC then in her later e mail set out very clearly that she was not pressuring C into having the Vaccine and that this was a choice for C to make for herself. It is hard to see how AC could have been any clearer on this point. This is not made out on the facts and once again whatever was stated had no connection with C’s inability to wear masks. This claim fails and is dismissed. Issue 8.1.5.7 – e mail from AC 8 December 2021[87]Our findings of fact on this e mail are also at paragraph 19.46-7 and in the same vein as the e mail sent on 6 December 2021, AC expressly stated that she was not applying pressure, repeating again, “I am not pressuring you into having the vaccine, I thought I was very clear that only you are able to make that decision for yourself. And I completely understand that you wish to undertake more research before making any decision about the vaccine.” She also went on to explain why it was necessary to give C the required information so that she could make a choice as to what to do about vaccination before the planned deadline of 1 April. Again we conclude that this e mail did not amount to pressuring or coercing C to have the vaccine, and it also had no connection with C’s inability to wear a mask so the claim under section 15EQA is not made out and is dismissed. Issue 8.1.5.8 - telephone call from AC on 10 December 2021[88]Our findings of fact about this telephone call are at paragraph 19.48 and we conclude that there was no pressure by AC during this phone call for C to have the vaccine. AC listened to C’s concerns about how the issue was making her feel and apologised if the contact had inadvertently made C feel pressured. In addition, the discussion around the Vaccine was not caused by C’s inability to wear a mask. This claim is not made out as discrimination because of the something arising in consequence of disability and is Issue 8.1.5.9 – AC forwarding mandatory vaccine e mail to C.[89]Our findings of fact about this e mail are at paragraph 19.51. This was the first communication from R’s corporate team about the Vaccine Mandate and AC forwarded this to C to forewarn her about what was happening given the concerns that C had already expressed to her. This was the reason the email was forwarded, and we do not conclude that this amount to pressurising or coercing C. She did not do this because of the something arising, namely C’s inability to wear a mask. This claim therefore fails and is dismissed. Issues 8.1.5.10 to 8.1.5.16; 8.1.5.19-8.1.5.21 – communications from the VCOD team and from the sathscommteam e mail address[90]There were a number of communications to C that are complained about and these comprise firstly being included on R wide communication e mails dealing with various matters including the Vaccine ; and secondly being sent specific e mails from R’s VCOD team directed to her about the Vaccine Mandate and the fact that she was recorded as either being unvaccinated or not having informed R of her vaccination status. Dealing firstly with the general R wide comms e mails with the very wide circulation list of the entirety of R’s workforce, our findings of fact about such e mails are at paragraphs 19.50 and 19.54. It is clear that in these e mails staff were being encouraged to have the Vaccine and being informed about the Vaccine Mandate. This was something R was obliged to do in order to comply with its legal obligations so it is hard to see how this can be regarded as pressuring or coercing. However most importantly, none of these e mails were sent to C because of her inability to wear a mask. These e mails were sent to C and thousands of other employees of R at the same time. They were not directed at anyone in particular and it is entirely implausible that C’s individual health issues would have formed any part of the motivation of sending an e mail to this number of people. This complaint is illogical and misconceived, and we conclude that clearly none of these mails were sent because of something arising from C’s disability. These complaints are dismissed.[91]The second part of this complaint relates to the slightly more targeted e mails and letters that were sent to C by the VCOD team. We refer to our findings of fact about these communications set out above. At paragraph 19.51 we addressed the first e mail sent to C about Mandatory Vaccines on 17 December 2021 as she had been identified as a frontline worker who was unvaccinated or whose vaccination status R was unaware of. This stated that staff were encouraged to have the vaccine but also clearly stated that R respected the individual right to choose. It further provided information about possible exemptions from the Mandatory Vaccine. At paragraph 19.53 we address the response sent by the VCOD team to C’s query about the basis for requesting information about vaccination and we accept that this was a standard template response sent to C and others who had raised similar queries. At paragraph 19.70 we make findings about the letter sent to C by post. Whilst the circulation list for these letters and e mails was narrower than the general all staff e mails, it is entirely clear that these were template letters sent to individuals who were in a similar situation to C i.e. that were either recorded as unvaccinated or whose vaccination status was unknown and who were recorded as being in a frontline role. They were sent in order that such people were informed as to what was R’s position on the Vaccine Mandate was and what steps would be taken next. We do not conclude that these were coercive in nature but rather informative. In any event for exactly the same reasons as the ‘round robin’ e mails, none of these e mails were sent to C because of her inability to wear a mask. This would not have necessarily even been something that the e mail sender would have had any knowledge of. The ability or otherwise to wear a mask was not the reason these e mails were sent. They were sent in order to comply with R’s legal obligations under the Vaccine Mandate. This complaint is not well founded and is dismissed.[92]As none of the complaints of unfavourable treatment because of something arising in consequence of disability have been made out, we do not need to consider the issue identified at paragraph 8.4 to 8.6 of the List of Issues as to whether the treatment was a proportionate means of achieving a legitimate aim. The claim under section 15 EQA is dismissed. Indirect disability and/or religion/belief discrimination (section 19 EQA)[93]When considering the indirect discrimination complaint, R has conceded that it had the PCP relied upon, namely the requirement for nursing staff to wear surgical masks throughout their shift (issue9.1 ). We also conclude that R applied this PCP to C (issue9.2 ), and it also applied this PCP to persons without C’s disability or without her religion and belief. That is self-evident as it was a policy applied to all staff without exception.[94]The question in issue is whether the application of that policy put persons with C’s disability or with Cs’ religion or belief at a particular disadvantage when compared with persons without that protected characteristic (issue 9.4). Dealing first with religion/belief, C has not established that the inability or indeed refusal to wear a mask had any connection at all to the religion/belief she adheres to. As we have already addressed, there is nothing apparently inherent in Christianity or her faith as a practicing Jehovah’s witness that C directed us to as including an objection to mask wearing. Moreover, C herself stated that she had no objection to mask wearing per se, but it was the issue of informed consent and risk assessments not being carried out that she objected to. There is no evidence at all on which we are able to make a finding of ‘group disadvantage’ here to those sharing C’s religion/belief in relation to the Mask Mandate. C’s objection was personal to her and her particular circumstances, but we do not find that it was connected to her religion/belief more generally and applicable to those with the same or similar religion/belief.[95]We went on to consider is whether the application of the PCP namely the Mask Mandate put persons with C’s disability at a particular disadvantage when compared to persons without her disability. The disability her is Chronic Rhinosinusitis and it is accepted that the effect of this disability on C herself is that she was unable to wear a mask as she found it painful and had difficulties breathing properly (issue 9.5 relating to individual disadvantage). However, C provides no persuasive evidence at all of group disadvantage in relation to the application of this PCP (issue 9.4). She refers us in her witness statement to what she describes as the expert opinion of Simone Plaut contained at pages 1593-1600. The status of this document is unclear, but it appears to be an expert report prepared by Ms Plaut, a qualified Health and Safety Practitioner, in some civil proceedings relating to a case involving a Mr B against Tapton School Academy Trust. It refers to a paper published by Kisielinski K., Giboni P. Prescher A. et al: in the International Journal of Environmental Research and Public Health on 20 April 2021 entitled “Review; Is a Mask that Covers the Mouth a Nose Free from Undesirable Side Effects in Everyday Use and Free from Potential Hazards?”. The document outlines certain views and opinions on the effective of mask use in terms of infection control and potential harms caused by masks. The issue of infection control is not relevant to the question we have to consider at all as we need to examine evidence which suggests that those with the disability of Rhinosinusitis are at a particular group disadvantage as a result of the Mask Mandate. The report briefly touches on what it sees as potential harms caused by mask wearing more generally but does not address whether this has a particular impact on those with Chronic Rhinosinusitis. The only mention of sinusitis at all is that a statement is made effectively suggesting that mask wearing can cause sinusitis as a result of the inhalation of fibres. The Tribunal was simply unable to validate or evaluate this evidence and it appears to have had no direct relevance on the issue of whether those with Chronic Rhinosinusitis are put at a particular group disadvantage by the Mask Mandate when compared to the population at large or any other identified group. Therefore, this complaint of indirect discrimination can go no further and is dismissed.[96]The Tribunal did not then need to go on to consider the issue of justification and whether the application of the PCP was a proportionate means of achieving a legitimate aim. However, it certainly appears to us that given the extraordinary circumstances that applied during the unprecedented Covid-19 pandemic, the requirement for nursing staff to wear surgical masks is highly likely to have been found to have been pursued in furtherance of the legitimate aim relied upon by R that the Mask Mandate was about, “a. Protecting the health and safety of members of staff and service users, specifically against the transmission of covid-19. b. Protecting the health and safety of patients, and in, particular patients on the oncology ward in which the Claimant worked, specifically against the transmission of covid-1 9. c. Reduce the transmission of Covid-19 between staff members to ensure the Trust could continue to operate and provide safe, effective and efficient medical treatment to patients; and d) To maintain the public and service users' trust and confidence in the Trust and nursing profession (including those nursing professionals employed or engaged by it), and the associated aim of ensuring that the public and service users continued to seek appropriate medical advice and treatment at the Trust when required.”[97]The reduction of the spread of Covid-19 was an important and well-known aim for all governments and had particular importance for those operating NHS services such as R. An instruction for nursing staff to wear masks during their shifts is clearly in pursuance of the aims set out above. C may disagree with mask efficacy and have very strong views about the harms caused, but the purpose of the Tribunal is not to make a determine of such matters and nor could it do so. C is unlikely to be persuaded that she is incorrect in her views, but the approach taken by R was consistent with that taken by many if not all other NHS trusts during the Covid 19 pandemic and was at the direct instruction of PHE from 20 June 2020 onwards (see paragraphs 19.11-16). The needs of R and C were addressed as although C was prevented from working on clinical duties, many steps were taken to continue C’s employment for the duration of the pandemic and beyond. Complaint of failure to make reasonable adjustments (EQA ss 20 and 21)[98]When looking at C’s complaint under sections 20 and 21 EQA, the first issue that appears to remain in dispute is whether R knew or could reasonably have been expected to know that C was disabled and from what date (issue10.1 ). We were next required to look at whether the PCP identified and relied on by the C was applied to her and, if so, when this took place (issue10.2 ). We then had to consider whether any such PCP applied put her at a substantial disadvantage compared to non-disabled people (and what that disadvantage was), considering the appropriate comparator (issue10.3 ). We would then look at whether R knew that C was placed at this disadvantage (issue10.4 ) and from when. We finally had to consider what adjustments would have been reasonable to make to avoid any relevant disadvantage (issues10.5 and10.6 ) and whether R failed to take those steps. Knowledge of disability[99]C was disabled as a result of Chronic Rhinosinusitis from November 2020 until at least August 2023 (the last act of discrimination complained about). However, the issue of when C had knowledge (actual or constructive) is a different question. R in its submissions does not address this issue at all but we note that its position in its final amended grounds of resistance was that it did not have the required knowledge “at the material time” (see page 555). The first mention of C having sinus issues in any communications involving R was on 14 October 2020, when the OH report received by R to consider her inability to wear a mask reported issues of pain, difficulty breathing and pins and needles in her nose (see paragraph 19.24). In February 2021 C informed she had seen a surgeon re swelling and was being referred to ENT (see paragraph 19.26) and still reported inability to wear a mask stating that her sinus issues were exacerbated by anything covering her face. Chronic Rhinosinusitis was diagnosed on 30 April 2021. An OH report received by R on 6 September 2021 mentioned her diagnosis of Rhinosinusitis and gave more detail with symptoms and clarified these would be likely to last at least 12 months (paragraph 19.29). It referred to ongoing issues with C’s nose health affecting her ability to wear a mask and also gave a view that C was likely to be covered by EQA.[100]The discussions between C and R then shifted to the anxiety around mask wearing and there was less discussion and information about the physical symptoms with the OH recommendations in November 2021 recommending CBT to break down negative cycles associated with mask wearing. In January 2022, the main symptoms being recorded by occupation health related to C’s anxiety and other mental health difficulties and around this time C was off work with work related stress. It was at this time that C disclosed her letters from her ENT specialist (paragraph 19.67).[101]On balance we conclude that R was either actually aware or had sufficient information to reasonably have been expected to know that C was disabled as a result of Chronic Rhinosinusitis from 6 September 2021 onwards. The indication from OH that EQA was likely to apply together with all that R knew about C’s health issues and her difficulty mask wearing means that R was fixed with constructive knowledge from this date. Application of the PCP[102]R admitted that it had the PCP identified at paragraph 10.2 of the List of Issues of: “A requirement for nursing staff to wear surgical masks throughout their shift”. We conclude that it was applied to C from at least June 2020 onwards. Substantial disadvantage[103]Although not specifically addressed in submissions, R did not admit that the application of the PCP put C at a substantial disadvantage compared to someone without C’s disability in that C had breathing difficulties associated with her medical condition and was unable to wear a mask continuously for long periods. For similar reasons as set out at paragraph 66 above in relation to the complaint of discrimination arising from disability, we conclude that the application of the PCP did put C at a substantial disadvantage compared to someone without Chronic Rhinosinusitis and she was unable to wear a mask continuously for long periods. R operated on this assumption throughout the relevant period and there is sufficient evidence from the various OH reports and in particular the OH advice received in September 2021 (see paragraph 19.29). Knowledge of substantial disadvantage?[104]We next went on to consider whether R knew or could reasonably have been expected to know that C was placed at that disadvantage and from when. The first time raised issues around mask wearing was in April 2020 but at this stage, C explained her difficulties in terms of pain in her nose from wearing the mask as a result of her Rhinoplasty surgery (see paragraph 19.17). From this point on adjustments to C’s working arrangements were made (see paragraph 19.18) but C was not in fact disabled at this time. The OH report issued following the appointment on 14 October 2020 made reference to C reporting breathing difficulties stemming from sinus issues which was causing anxiety and referred C for further OH advice about this (paragraph 19.24). That next OH report, also recording that C was unable to wear any type of mask due to pain and also recorded that C had breathing difficulties following her surgery in November 2019. C was as a matter of fact a disabled person at this time and adjustments were made to working arrangements (with C now being unable to work clinically). However, it was really only in September 2021 when we concluded that R was fixed with constructive knowledge of C’s disability that it also became aware that this disability was causing the substantial disadvantage relating to mask wearing and thus was under a legal duty to make reasonable adjustments to avoid that disadvantage. Adjustments sought by C[105]We then had to consider what steps could have been taken from this point on to avoid the disadvantage, determine whether the steps were reasonable and then decide whether C failed to take such steps 10.5.1 An exemption from the requirement to wear a mask[106]Clearly had C been granted an exemption from the requirement to wear a mask, the disadvantage would have been avoided, so the issue remaining is whether exempting C from the requirement to wear a mask at all was reasonable. It plainly was not. Our findings of fact about the Mask Mandate and how it was implemented in R are at paragraphs 19.11-16 above. R was at all times following the guidance that was being provided by PHE, UKHSA, the Department of Health and Social Care and others. This guidance changed over time but was mandatory in nature and it was not simply open to R or any other NHS trust to disregard this or disapply it in certain circumstances. It would have been entirely unreasonable for R to have done so. We fully accept the submission of R that masks were deemed necessary by the UK Government, and it mandated that NHS staff wear them and ‘lead by example’ to create public confidence in the NHS at such a crucial time of national emergency.[107]C relies heavily on what she says was her legal right to be exempted from wearing a mask under the 2020 Regulations as set out above. However, we accept R’s submission that C has fundamentally misunderstood the context of the 2020 Regulations and their application to the present situation. Firstly the 2020 Regulations were put in place to enforce the wearing of face coverings in public places. As set out in the explanatory memorandum to the 2020 Regulations, they were designed to apply to members of the public to protect against public health risks. The sanctions for failing to comply with the 2020 Regulations as set out above were that an individual would commit an offence punishable on summary conviction by a fine, if they failed to wear a face covering in a relevant place without reasonable excuse. If C was able to show that she had a reasonable excuse, then she would not have committed an offence but that is as far as the ‘exemption’ goes. It does not offer some sort of free-standing pass or entitlement which was applicable in all other situations or contexts where mask wearing was required. The 2020 Regulations solely dealt with the commission of those specific summary offences and were not of any wider application than that.[108]Secondly it is abundantly clear that hospitals were not included within the scope of the 2020 Regulations at all as indicated by the specific exemption from the definition of a relevant place of premises providing wholly or mainly medical or dental services. Therefore the 2020 Regulations simply had no relevance at all to any additional requirement imposed by R as an employer. R was not trying to enforce mask wearing as a requirement punishable by summary conviction by a fine under the 2020 Regulations, so any exemptions are simply not relevant at all. R was imposing its mask wearing obligations as a reasonable instruction to its employees to comply with those policies that the NHS and it deemed necessary to protect employees, service users and members of the public. It was perfectly entitled to do so and whether or not any individual may have been able to rely on an exemption from mask wearing in a public place under the 2020 Regulations was simply not relevant or applicable to any requirements R applied. 10.5.2 A transfer to a different work environment where she would not have to wear mask all the time, such as Telford. The claimant says that a reasonable adjustment was initiated to facilitate her working in Telford on 14 February 2023, but this was revoked on 21 February 2023. The claimant also relies on an allegation that she was not informed that she would have to move roles after her 5-week phased return in February 2023 and this caused her anxiety and was not reasonable. She refers in particular to the comments made by RA on 10 March 2023 “Introducing herself as a PEF…”.[109]In relation to transferring C to a different location where she would not have to wear a mask, then clearly this would also have removed the disadvantage and if such a suitable role was available for C, then we conclude this was a likely to have been a reasonable adjustment. However moving on to the final issue set out at paragraph 10.7 of the List of Issues we conclude that R did not fail to take these steps, but on the contrary, it did find C a different role in a setting where masks were not required on a number of occasions. Initially in November 2020 C carried out interviewing by Teams from the ward 23 flat where there was no requirement to wear a mask (see paragraph 19.25); in January 2021 she did some audit work working alone in an office where she did not have to wear a mask; in April 2021 she again worked on site for ward 35 working in her own workspace (paragraph 19.27). She also continued to carry out ad hoc interviewing. After a period of sickness in January 2022, she worked with the nMABS triage team until March and in May began work as an absence call handler (see paragraphs 19.57-58 and 19.83). Following further sickness she then started work with the PEF team in February 2023 observing the role to start her phased return back to duties. We do not accept that this role was removed or revoked from her in March 2023 for the same reasons we have set out at paragraph 75 above in relation to the similarly framed complaint under section 13 EQA. The fundamental difficulty that C has with this particular claim was that throughout the period we were considering, she was unable to wear a mask and thus unable to work at all in a clinical setting. Roles suitable for a grade 6 sister not in a clinical setting were not easy to come by. R made considerable efforts to keep C in employment and actively working but the fact that C was simply unable to work clinically under the conditions in place at the time posed a significant obstacle to finding a suitable position. We do not find that R failed to comply with its duty to make reasonable adjustments in this regard. Other potential adjustments[110]During the hearing, C identified other potential steps C could have taken to remove the disadvantage. She suggested that C could have carried out an individual risk assessment on the impact of wearing a mask on her. When asked in cross examination what the outcome of such a risk assessment would have looked like i.e. what it was that could be put in place following such an assessment to remove the disadvantage, C was unclear on this point suggesting that surgical masks were not appropriate PPE and when pushed suggested what she was really suggesting was that she could have worn a surgical mask not fully over her nose in combination with a visor and that if she had symptoms of Covid she could have taken a lateral flow test before attending work. Firstly, we conclude that the conducting of an individual risk assessment, of itself, would not have removed the substantial disadvantage of C being unable to wear a mask due to breathing difficulties. All it could have done was identify risks and potential controls to avoid those risks. The issue of C’s inability to wear a mask would have remained even if an individual risk assessment had been carried out. In terms of C’s suggestions for the outcome of such an individual risk assessment, for the same reasons as are set above in relation to the suggested adjustment of a mask exemption, we do not find that conducting a risk assessment leading to C being required to wear a mask only partially with a face visor was a reasonable adjustment for R to have made. Allowing someone to wear a mask incorrectly was not an appropriate step to take, even though this may have been tolerated for a short time in the early stages of the pandemic (see paragraphs 19.18-19). R Mask Mandate was clear that there should be no exceptions and for the very many reasons of reducing the spread of infection, it was vitally important that masks were not only worn but worn correctly by everyone.[111]She also suggests that R could have permitted her to wear a different type of mask rather than the type of surgical mask required by the Mask Mandate. C suggested that R could have permitted her to wear an FFP2 type of the kind that C showed to the Tribunal during the hearing. However, we also conclude that this could not have been a reasonable adjustment given that C’s position about the FFP2 mask from February 2021 onwards was that she could only wear this for short periods of time and was struggling to wear any mask at all (see paragraph 19.26). Moreover, C when demonstrating this particular mask to KT to see if it could be a possible solution, was wearing the mask incorrectly so that her nose was not fully covered (see paragraph 19.28). This was clearly an unreasonable step for R to have taken. Complaint of harassment related to disability and/or religion or belief (EQA s26)[112]To determine these complaints, we needed to decide whether the C was subject to unwanted conduct of the type described; then determine whether the conduct was related to disability or religion/belief. We were then required to consider whether the conduct had the purpose or effect of violating C’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, having regard to:(a) the perception of C;(b) the other circumstances of the case; and(c) whether it is reasonable for the conduct to have that effect. We set out our conclusions on each matter alleged to be harassment below: Issue 11.1.2: The Respondent pressurised, coerced and bullied the Claimant to Issue 11.1.2.1 November 2021 (35-minute impromptu telephone call from second Respondent (AC)).[113]We refer to our findings of fact at paragraphs 19.34-37 and our conclusions on this same factual allegation when it was made as a complaint of discrimination arising from a disability. We do not consider that the conversation that took place amounts to coercion, bullying or putting pressure on C to have the Vaccine. In addition, C has not been able to show that the discussion about vaccination in fact was related to her disability of Chronic Rhinosinusitis at all. We also conclude that this discussion was also not related to C’s religion or belief. C did not express any objection to having the vaccine in relation to her religious or other beliefs during this conversation. She raised the risk of side effects. Whatever this conversation was about we do not conclude that this was related to religion/belief. It is a key element of a claim made under section 26 EQA that any unwanted conduct must relate to the protected characteristic. There is no link to C’s protected characteristic here at all. On this basis this allegation can go no further and must fail. We did not need to go on to consider whether the conduct had the required purpose or effect. This allegation is not well founded and is dismissed. Issue 11.1.2.2 3 December 2021 (35-minute impromptu telephone call from AC).[114]We once again refer to our findings of fact about this call at paragraphs 19.42 to 19.46 and to our conclusions at paragraph 85 above to this same factual complaint brought as a claim under section 15 EQA. Whatever the effect of this call on C the conduct complained of has to be related to C’s protected characteristic. For the same reasons as just set out above, there was no connection between a discussion about the Vaccine Mandate and C’s religion or belief. There had been no suggestion at this time that C’s religious belief had anything to do with her concerns about the vaccine. There is at least a tangential connection in this conversation between C’s health and the Vaccine as C expresses her concern about how the vaccine would affect her given previous health issues. We have therefore considered whether anything said by AC during this conversation had the purpose or effect of violating C’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, having regard to:(a) the perception of C;(b) the other circumstances of the case; and(c) whether it is reasonable for the conduct to have that effect. The information given to C by AC in no way can be said to have this purpose. It was necessary for AC to provide this important information to C and in the circumstances, she did this in an entirely appropriate and sensitive manner. C is clear as to the effect she says has this call had on her and AC recorded that C became very distressed during the conversation. However, we cannot conclude that it was objectively reasonable for anything AC said or did on that telephone conversation to have had the required effect to amount to disability related harassment. C had to be informed about the forthcoming Vaccine Mandate and how it affected her. We are satisfied that AC approached this difficult topic in a sensitive and measured manner and in no sense was C pressured or coerced. This fails to meet the level of conduct that gets anywhere close to equating to C’s dignity being violated or a hostile, degrading, humiliating or offensive environment being created. This claim is dismissed. Issue 11.1.2.3 6 December 2021 (email call from AC).[115]As per our findings at paragraph 19.46, this e mail was a summary of the discussion that took place on 3 December 2021, so for the same reasons as are set out at paragraph 100 above, this claim is dismissed. AC made it absolutely clear during this e mail that there was no pressure to have the Vaccine, acknowledged that C found the issue difficult and also apologised if the earlier phone call had distressed C. Nothing set out in this e mail gets close to the requirements for harassment under section 26 EQA. Issue 11.1.2.4 8 December 2021 (email call from AC).[116]See our findings at paragraph 19.47. The Vaccine was not even mentioned in the exchange of messages on this date. These were entirely supportive and appropriate. This claim fails on the facts and on the substantive elements none of which are made out. Issue 11.1.2.5 10 December 2021 (20-minute impromptu telephone call from AC while the Claimant was off sick).[117]For the same reasons as set out at paragraph 115 above for allegation 11.1.2.3. this claim is dismissed. This call was made to get an update on C’s health after she had gone off work and again was entirely appropriate. Issue 11.1.2.6 13 December 2021(email from the Respondent while the Claimant was off sick).[118]This all staff announcement sent by e mail which we address at paragraph 19.49 above falls well short of being unwanted conduct with the purpose or effect required. It was measured and reasonable and gave staff links to sources of information. We conclude that C has failed to show any link at all to her religion or belief and it is difficult to see how an e mail sent to many thousands of employees could be related to C’s disability. This claim is not well founded and is dismissed. Issue 11.1.2.7 17 December 2021 (2 emails while the Claimant was off sick (Trust and AC)).[119]Our findings about the e mails sent to C on 17 December 2021 are at paragraphs 19.50-52. C received a general update e mail that day re the Vaccine Mandate which AC also forwarded to her. She also received a more directed e mail which was still a standard e mail sent to those that R had no record of vaccination status or who had confirmed they were unvaccinated. The effect of these e mails was simply to set out the necessary information for the recipients to work out how they were going to respond to the Vaccine Mandate. For the same reasons as set out at paragraph 118 above in relation to the allegation at 11.1.2.6, this complaint is not well founded and is Issues 11.1.2.8 5 January 2022 email while the Claimant was off sick (Trust); 11.1.2.9 12 January 2022 email (Trust); 11.1.2.10 26 January 22 letter (Trust); 11.1.2.11 27 January 22 email (Trust).[120]For the same reasons as set out at paragraph 118 above in relation to the allegation at 11.1.2.6, each of these four complaints is not well founded and is dismissed. Individually we conclude that each of the instances of contact either by e mail or telephone call that are listed above does not amount to harassment or come close to the nature of unwanted conduct that could form the basis of such a complaint. However, we also understand that C complains about the cumulative effect of such communications and contact and contends that these amounted to “a disproportionate amount of pressure from managers for staff to be vaccinated with novel covid vaccines”, stating that she found it “intimidating and hostile and continued for a prolonged period, including while I was off work sick with stress and anxiety”. We accept that this was the effect on C of these communications. She fundamentally disagreed with the need for vaccination and had repeatedly stated to R and to us in evidence and submissions that she was, “confident in natural immunity and had proof of antibodies for SARS/COV2”. No doubt many people employed within R and in the wider community entirely agreed with the views espoused by C. However, it the highly unusual circumstances surrounding the Vaccine Mandate and the forthcoming legal requirement on R to ensure that all frontline staff were fully vaccinated, the communications it sent to C and others were entirely appropriate, proportionate, reasonable and measured. The communications gave clear information and always emphasised that whether or not vaccination was agreed to was a matter of personal choice. It was simply outlining as clearly as possible in the light of information available at the time what the consequences of that choice were. Therefore, even if the communications had the required effect on C, it was not reasonable in these particular circumstances for this to be the case. The complaints all fail on this ground but perhaps more significantly, we do not conclude that any of these communications had any connection with either of the protected characteristics C relies upon for the same reasons we have already outlined. These complaints are all not well founded and are dismissed. Issue 11.1.5 The claimant was excluded from working her contracted role as a[121]We refer to our findings of fact from paragraph 19.23 onwards. We conclude that C was excluded from working in a clinical setting because she was unable (and also later unwilling) to wear a surgical mask and for similar reasons as are set out above that had no connection in our conclusion to C’s religion or belief and thus the complaint of religion/belief related harassment must fail. C’s inability to wear a mask does have a connection to her disability so we have gone on to consider the purpose and effects of R’s decision to exclude C from a clinical setting. Firstly, in terms of the purpose, we conclude that the decision was absolutely not done with the purpose of violating C’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. It was done because it was not considered safe for C to remain working in a clinical setting without wearing the appropriate protective equipment to prevent the risk of infection not only to herself, but to other staff and the vulnerable patients in her care. That was the sole purpose of this decision. Following the Pemberton decision above, to decide whether any conduct falling within section 26(1)(a) has either of the proscribed effects under section 26(1)(b), a tribunal must consider both (by reason of section 26(4)(a)) whether the putative victim perceives themselves to have suffered the effect (the subjective question) and (by reason of section 26(4)(c)) whether it was reasonable for the conduct to be regarded as having had that effect (the objective question). It must also consider all the other circumstances under section 26(4)(b). The relevance of the subjective question is that if C does not perceive their dignity to have been violated etc. the conduct should not be found to have had that effect. The objective question is then relevant and if it was not reasonable for the conduct to be regarded as violating C’s dignity etc., then it should not be found to have done so.[122]We firstly considered the subjective question which was whether C perceived the conduct to have had the effect of violating dignity or creating an intimidating etc. environment. It was clear that C was upset on the day she was asked to go home but it is clear that in the first period she remained at home during 2020 and early 2021 C understood why this had been done and appreciated what AC and PW were doing to try and support her (see paragraphs 19.26 where C acknowledges this in February 2021 and in October 2021 where she thanks AC for her support). However, it is clear that C’s view on her removal starts to change towards the end of 2021. The Vaccine Mandate and then shortly after the period of time when C began to be supported by WUE coincided with many of the views C was taking becoming more inflexible and strident and by the time of the January 2022 wellness meeting C had concluded that she had no intention of wearing a surgical mask. Whilst C experienced periods of great distress and mental ill health during this period, she has really provided no evidence that she perceived the removal from clinical duties as having violated her dignity or created an intimidating environment for her. However, even if C did perceive this to have been the effect of her removal, we still had to consider the objective question which is whether it was reasonable for C to have regarded her removal from clinical duties as having that effect. On that particular issue, we conclude it was not once again in the very unusual circumstances of that time when the Mask Mandate had been introduced and needed to be enforced by R. Issue 11.1.6 On 23.2.23 MC gave RA the claimant’s vaccination status without her consent. As a result, RA’s behaviour towards the claimant changed and in particular she described the claimant as a risk in a covid risk assessment. The claimant will also rely on RA’s behaviour in the meeting on 21 March 2023 where she alleges RA was negative and judgmental.[123]For similar reasons as set out at paragraph 68 to 70 above in relation to the identical factual allegation made as one of direct discrimination (issue 7.2.4) this complaint is not well founded. Although the test for determining whether the unwanted conduct was related to disability or religion/belief is different than deciding whether treatment was because of such protected characteristic, we conclude that MC giving RA’s vaccination status to RA without C’s consent was entirely unrelated to either C’s religion/belief or to her disability. We were satisfied with the explanation as to why C’s status was shared and also accept that it would have been better if MC had checked with C that she was content for this information to be shared before it was done. However, there was no connection with the protected characteristic and therefore this complaint of harassment must fail and is Issue 11.1.7 On 21.3.23 RA and MC asked if the claimant could wear a mask for short period – they did not understand it was not an option for the claimant and did not take her seriously. They were judging and shaming the claimant. The claimant was not given any feedback on her 5week phased return. They revoked the reasonable adjustment of the claimant moving to work in Telford and not having to wear a mask all the time while working there. MC blamed the claimant for the loss of the opportunity saying it was “your choice” and “your beliefs”.[124]We refer to paragraphs 19.104-105. RA (but not MC) asked C if she could wear a mask for short periods during their Teams meeting on 21 March 2023 whilst discussing whether C may be able to continue to perform the PEF role carrying out the pastoral element of this role which required her to be in a clinical setting. The remaining elements of this complaint were not made out on the facts as set out in our conclusions at paragraphs 74 to 77 above where the same acts are said to be direct discrimination at issue 7.2.6. For the same reasons as already stated we conclude that there is no relationship between questions about mask wearing to C’s religion or belief. The question is related with disability as the reason for C’s inability to wear a mask stemmed at least initially from her disability of Chronic Rhinosinusitis. Going on to consider whether this question had the desired purpose or effect, it did not have the purpose as the only purpose of asking this question was to explore whether there was any realistic possibility of C being able to continue with the pastoral part of a PEF role. We accept C’s evidence that being asked the question had the required effect but when looking at this question objectively it is not reasonable taking into account all the circumstances for such a fairly straightforward question to have had this effect. C’s reaction seems to have been extreme and surely could not have been anticipated by RA who was trying to understand whether anything in relation to mask wearing had changed such that some short periods could be tolerated which may mean C could undertake the pastoral elements of the role. On this basis, this complaint is not well founded and is dismissed. Issue 11.1.8 On 04.08.23 MC said, “I have not denied any possibility of disability which [C] considers she may have.” As a result of this the claimant[125]We address this allegation at paragraph 19.117. There is mention of disability so in that sense it could be seen to be disability related. This statement was included in a response sent by MC as part of the investigation into C’s grievance. It was not a direct response to C or directed towards her. It is unlikely that there was even an anticipation that C would read this comment. It clearly did not have the required purpose. C says that this comment upset her when she read it as it suggested that R had not taken her disability seriously. We are not satisfied that C has shown that the effect of reading this comment perhaps some months later had the effect of violating dignity or creating an intimidating etc. environment. In any event, we conclude even if it did, it was not reasonable in all the circumstances for it to have had this effect. C had made a number of allegations in her grievance many of whom against MC. AW and JE needed to get MC’s responses to the points made to full consider C’s allegations. We do not consider it reasonable therefore for this information to have had the proscribed effect in this context. We do not consider that reading about this matter in investigatory notes was something that it was reasonable to have had the effect of violating dignity and creating a hostile environment etc. On this basis the allegation is dismissed. Issue 11.1.9 KM and TD arranged weekly meetings, putting the claimant in an impossible situation. The claimant felt intimidated and harassed to consent to a redeployment register or return to the ward that caused trauma or drop a band in pay from band six to band five. This unwanted behaviour caused extreme anxiety and distress. It started in June 2023.[126]Our findings of fact about the weekly meetings that took place between C, KM and TD from June 2023 onwards are at paragraphs 19.119-122. There was a connection to disability in that these meetings were arranged to support C in returning to work after a period of sickness absence. Moreover, the OH report just obtained recommended that regular meetings were held. In this context it is very difficult to see how arranging and holding such meetings could be seen to have the required purpose or effect to fall within the ambit of section 26 EQA. There is also nothing which we have found to have occurred that suggests that KM and TD were intimidating or pressuring C to consent to be placed on the redeployment register or return to ward 23 so this element of the complaint fails on the facts. By this time C had been unable to work in her contracted role for over 2 years as a result of her inability to wear masks when this was a strict requirement of R. In June 2023, this requirement was removed, and it is entirely reasonable and appropriate for R to have considered that it was now time for C to return to her contracted role. Nonetheless KM handled this as sensitively as possible and gave C plenty of time to consider what she wanted to do. It was hard to see what more R could really have done if now that the issue that was preventing C from returning to ward 23 had gone, that C was unwilling to actually do this. It was entirely sensible and appropriate for R at this stage to have considered placing C on its redeployment register to find a suitable alternative role for C. The fact that R waited so long before this was implemented was a testament to the patient and reasonable way in which it dealt with this very difficult and challenging situation not just for C but for R as well. This allegation is dismissed. Issue 11.1.10 On 28.07.23 Claimant left the meeting room and witnessed KM and TD laughing in amusement.[127]As we have found at paragraph 19.121, we were not satisfied that KM and TD were “laughing in amusement” when C left the meeting room. Our conclusion is that C may have witnessed some unrelated social interaction between KM and TD during a break in the meeting and has wrongly assumed this to be directed at her due perhaps to her distressed state and poor health on that day. This is not made out on the facts, and in any event is not related to disability or religion/belief. The conduct did not have the required purpose and even if what C saw may have caused her distress, it was not reasonable in all the circumstances for it to be considered to have the effect of violating dignity or creating an intimidating, hostile, degrading or offensive environment for C. This claim is accordingly dismissed. Issue 11.1.11 On 19.01.2023. MC documented that she would complete a stress risk assessment and covid assessment. MC handed the covid assessment to RA to complete. A stress risk assessment was not completed. The claimant alleges this amounted to failing to take reasonable care to protect her from distress and it made her feel they did not take her stress and anxiety seriously.[128]C complains here that MC and RA failed to complete a stress risk assessment that had been recommended by OH and that this amounts to harassment on the grounds of disability or religion/belief. She acknowledges that this was completed and provided to her on 19 December 2023 when different managers were involved. We refer to our findings of fact at paragraph 19.97. The stress risk assessment was not carried out, but we accepted that this was an oversight rather than anything that was targeted at C. It was not in fact related to her protected characteristic at all as the disability C had here was C’s Chronic Rhinosinusitis. There is clearly no connection with religion/belief. In addition, we do not accept that there was the required purpose and other than bare assertion we have no actual evidence that it had the effect required by section 26 EQA. This claim is Issue 11.1.12 In March 2023 the claimant was not informed that she would only be able to stay in her new role during her 5-week phased return. The claimant contends she felt humiliated and as though her anxiety had not been taken into account.[129]We refer to our conclusions at paragraphs 59 to 63 above in relation to a similar factual complaint brought as a complaint of direct discrimination at allegation 7.2.6. For similar reasons, we do not find that this complaint is made out on the facts. Whatever C believed to be the case about this role, she was informed that work in clinical areas was required (see paragraph 19.93). She was also informed by e mail on 19 January 2023 that the role was temporary and that it was about supporting C to begin to return to work (see paragraph 19.93). The risk assessment sent to C on 23 February 2023 also stated that the role would continue “for the duration of her 5-week phased return” and that it was a” temporary measure”. Whatever C might have assumed about this role, she was informed that it was temporary and was intended to support her 5-week phased return. This complaint is not made out on the facts and is dismissed. Issue 11.1.13 When she returned to work on a phased return in February 2023[130]For very similar reasons as set out at paragraph 54 above in relation to this same factual allegation made as a complaint of protected disclosure detriment as allegation 3.1.12, this complaint is not made out and dismissed. Issue 11.1.14 The claimant was not personally contacted to inform her of the policy change regarding wearing mask announced on 26 May 2023, even though she had been excluded from the site for more than 2.5 years as a result of the previous policy.[131]We refer to our findings of fact at paragraph 19.118. C did not receive a personalized e mail from R about the change to policy with regards to mask wearing. It was unfortunate that this had been raised by C only the day before in the meeting with AW and JE (see paragraph 19.117) and they had confirmed they were unaware of the decision. However, we accepted that this was indeed the case, and it was communicated to C that they were aware that the requirement was being reviewed but did not know anything further. We do not accept that there was anything in any way sinister or suspicious about this and that JE and AW were simply stating the position as they knew it on 25 May 2023. As soon as this was raised by C, an apology and an offer of a meeting was made and C seemed to be content with this. We conclude that any failure to directly and personally inform C neither had the purpose or effect that is required by section 26 EQA. Even if it came close to having such an effect, given our findings of fact about what was known and when, it would be entirely unreasonable for such a matter to have had the effect suggested. We take note that mask wearing as at this date was still required in Ward 23 where C had original worked in any event so the change in policy was perhaps of less relevance at this time. As and when the mask wearing requirement changed for C’s home ward, she was informed directly (see paragraph 19.120). This complaint is not well founded and is dismissed. Victimisation - Equality Act, section 27:[132]C pleads three matters which she says to be protected acts (issues 12.1.1 to 12.1.3) comprising four incidents on 27 and 28 March, 24 April and 12 May 2023 and R accepts that C did a protected act in respect of each of the three pleaded matters, so we do not need to consider this further. C makes 11 allegations of detrimental treatment which she says took place because she did a protected act. For each detriment relied upon we had to determine whether R subjected C to the detriment complained of (which is set out at paragraphs 12.2.1 to 12.2.11 of the List of Issues) and then go on to decide whether any of this was because of the protected act. The provisions on the two-stage burden of proof set out at Section 136 EQA apply in victimisation cases. If C establishes a prima facie case of victimisation, the burden of proof shifts to R to show that the contravention did not occur. To discharge that burden of proof, there must be cogent evidence that the treatment was in “no sense whatsoever” because of the protected act. We set out below our conclusions on these matters for each allegation listed in the List of Issues with reference to each paragraph number whether the allegation is listed: Issue 12.2.1 LB has not acknowledged or answered the claimant’s questions or[133]For almost identical reasons as we set out above in relation to this complaint as made as a protected disclosure detriment claim (issue 3.1.10) this claim is dismissed. This was not established on the facts and in any event in respect of anything done or not done in respect of C’s questions or the meeting with LB. C has not met the first stage of showing a prima facie case that this was because of her having raised a protected act. There is simply no evidence at all that the protected act played any part. This treatment was not because of the protected act. This allegation of victimisation is dismissed. Issue 12.2.2 On 19.01.23 MC excluded the claimant from working clinically as policy’. MC also said she has ‘found a placement where masks are not required …. this should integrate her within a team offsite at Telford College’.[134]This complaint is misconceived and cannot succeed for the most straightforward reason that the alleged detriment occurred before any of the protected acts took place. This cannot be because of a protected act and the Issue 12.2.3 On 12.05.23 MC informed Occupational Health that the claimant believes masks “are not required due to religious beliefs”. The claimant believes this choice of words to be prejudicial and offensive.[135]We refer to our findings of fact at paragraph 19.115. We accept that MC understood that C objected to mask wearing partly due to religious beliefs. We also take account of the fact that by this time C had commenced a claim in the Employment Tribunal part of which was a claim alleging that the requirement for mask wearing was discrimination on the grounds of religion/belief (see paragraph 2 above). Therefore, what was said by MC in this referral was entirely accurate and it is hard to see how it could be seen as “prejudicial and offensive” given that this was exactly what C was contending herself at this time. In addition, C has not shown that this was anything at all connected to her having done a protected act. We conclude that the inclusion of this accurate comment was not because of the protected act. This allegation of victimisation is dismissed. Issue 12.2.4 The claimant was excluded from working her contracted role as a[136]This allegation fails for the same reasons as set out at paragraph 134 above. The act of alleged detriment occurred before the protected act and so it cannot possibly have been because of the protected act. The complaint is Issue 12.2.5 On 23.2.23 MC gave RA the claimant’s vaccination status without her consent. As a result, RA’s behaviour towards the claimant changed and in particular she described the claimant as a risk in a covid risk assessment. The claimant will also rely on RA’s behaviour in the meeting on 21 March 2023 where she alleges RA was negative and judgmental. We refer to our findings of fact at paragraph 18.192 above.[137]This allegation again fails for the same reasons as set out at paragraph 134 above. The act of alleged detriment occurred before the protected act and so it cannot possibly have been because of the protected act. The complaint is Issue 12.2.6 On 21.3.23 RA and MC asked if the claimant could wear a mask for short periods – they did not understand it was not an option for the claimant and did not take her seriously. They were judging and shaming the claimant. The claimant was not given any feedback on her 5week phased return. They revoked the reasonable adjustment of the claimant moving to work in Telford and not having to wear a mask all the time while working there. MC blamed the claimant for the loss of the opportunity saying it was “your choice” and “your beliefs”.[138]This allegation once again fails for the same reasons as set out at paragraph 134 above. The act of alleged detriment occurred before the protected act and so it cannot possibly have been because of the protected act. The Issue 12.2.7 On 04.08.23 MC said, “I have not denied any possibility of disability which [C] considers she may have.” As a result of this the claimant believes the respondent has not taken her disability seriously or as a fact.[139]We refer to our findings of fact at paragraph 19.117 above. C has adduced no evidence whatsoever to suggest that this comment was included because of any of the protected acts having occurred. MC made this comment in her response to questions posed by the investigator of C’s grievance, so in that sense there is a connection to that grievance, but we remind ourselves that the test we must apply is one of “the reason why” not a “but for” test. This comment was not included because of any protected act and the claim of victimisation is dismissed. Issue 12.2.8 KM and TD arranged weekly meetings, putting the claimant in an impossible situation. The claimant felt intimated and harassed to consent to a redeployment register or return to the ward that caused trauma or drop a band in pay from band six to band five. This unwanted behaviour caused extreme anxiety and distress. It started in June 2023.[140]We refer to our findings of fact at paragraphs 19.119-121 and for similar reasons to those given at paragraph 126 above where this identical allegation is made as one of harassment (issue 11.1.9) this complaint is dismissed. The weekly meetings were put in place because of an OH recommendation. No pressure was put on C to consent to being placed on the redeployment register and the return to ward 23 being raised was entirely appropriate given that this was where C had previously worked. None of this was because of any of the protected acts and this claim fails and is Issue 12.2.9 On 28.07.23 Claimant left the meeting room and witnessed KM and[141]As per our findings of fact at paragraph 19.121 we were not satisfied that KM and TD were “laughing in amusement”. In addition, C has not shown that anything done or said by either KM or TD had any connection to a protected act. She has failed to show a prima facie case, and the complaint is Issue 12.2.10 On 10 March 2023 RA said “Introducing herself as a PEF, with assumptions she is now a permanent part of the team, they also feel she isolated herself from them during sessions and when she does get involved, does not always give out the correct information to the nurses in the sessions. I have not organised any off duty with [C] past 17th March as this will be the end of the phased return.”[142]We refer to our findings and conclusions above for this identical complaint posed as one of protected disclosure detriment (issue 3.1.11) and direct discrimination (issue 7.2.7) and for broadly the same reasons this complaint is dismissed. There is simply no evidence at all that RA was influenced by the fact C had done a protected act in making this note in her record of interactions with C and we conclude it was entirely unconnected. Issue 12.2.11 When she returned to work on a phased return in February 2023[143]We refer to our conclusions at paragraph 54 above in relation to this same allegation being put as a complaint of protected disclosure detriment (issue 3.1.12). Much of this allegation fails on the facts and C has failed to adduce any cogent evidence which suggests that the reason for what took was anything to do with a protected act. The burden of proof does not pass to R to explain any actions and this claim is dismissed. Jurisdiction[144]Given that none of the complaints have succeeded, we do not need to go on to consider whether, the claims were made in time, whether there was conduct extending over a period and if not, whether the claims were made within a further period that the Tribunal thinks is just and equitable or whether it was not reasonably practicable for the complaints to have been presented in time (and was presented within a reasonable period thereafter) as set out at paragraph 1 of the List of Issues. All the claims failed having been considered fully on their merits. Signed by: