Mr S Thomson v University Hospitals Bristol and Weston NHS Foundation Trust: 1401978/2024

EMPLOYMENT TRIBUNALS

Case No 1401978/2024

Between

Mr S ThomsonClaimant

University Hospitals Bristol and Weston NHS Foundation TrustRespondent

Before

Employment Judge Gray-Jones

In person for claimant

Mr R Fitzpatrick (instructed by Counsel) for respondent

Date 30 March 2026

JUDGMENT

[1]The Respondent subjected the Claimant to detriments on the ground that the Claimant had made protected disclosures contrary to s.47B Employment Rights Act 1996 by: i. Restricting the Claimant from undertaking Bank shifts in November 2023, and thereafter when the restriction was lifted continuing to restrict him from undertaking any shifts in the Respondent’s Emergency Department until the termination of his contract; ii. Restricting the Claimant from undertaking Bank shifts in June 2024; iii. Terminating the Claimant’s contract.

[2]The Respondent subjected the Claimant to direct discrimination because of the protected characteristic of disability (s.13 Equality Act 2010) by terminating his Bank contract.

[3]The Respondent subjected the Claimant to discrimination arising from disability under s.15 Equality Act 2010 by restricting the Claimant from undertaking Bank shifts in November 2023 and thereafter when the restriction was lifted continuing to restrict him from undertaking any shifts in the Respondent’s Emergency Department until the termination of his contract.

[4]The other complaints of whistleblowing detriment, direct disability discrimination and disability discrimination by reason of a failure to make reasonable adjustments or provide an auxiliary aid are dismissed.

REASONS

[1]This is the unanimous judgment of the Tribunal.

[2]In a claim form presented on 28 August 2024 the Claimant brought complaints of unfair dismissal, disability discrimination and detriment on the grounds of public interest disclosure.

[3]The Claimant was employed by the Respondent NHS Trust as a nurse for three months and then worked for the Respondent as a bank registered nurse from 12 June 2023 until 16 August 2024, having switched to bank work because of the greater flexibility it offered. The events which give rise to the complaints in this claim took place when he was undertaking bank work.

[4]The Claimant says that he was disabled by reason of dyslexia and autism during the period relevant to the claim. He also says he made various protected disclosures. He alleges that was subjected to various acts of less favourable treatment because of the protected characteristic of disability by the Respondent, as well as one act of unfavourable treatment because of something arising in consequence of disability. He also alleges that there was a failure to make reasonable adjustments. It is also alleged that he was subjected to detriments on the grounds of the protected disclosures he made.

[5]The Respondent has conceded that the Claimant was disabled by reason of dyslexia and autism and that it had knowledge of disability at the material time. It has also conceded that the Claimant made the protected disclosures relied on. It resists all the complaints. Procedural History

[6]There was a preliminary hearing to discuss case management before Employment Judge Ferguson on 11 March 2025. At this hearing a complaint of unfair dismissal was dismissed on withdrawal. An agreed list of issues was prepared, case management orders made and the case listed for a final hearing.

[7]There was a further preliminary hearing to discuss case management before Employment Judge Bax on 07 November 2025 at which the final list of issues was confirmed as well as the listing of the case for final hearing. The hearing was originally listed to be heard over seven days, from 12 to 20 January 2026. However, at the commencement of the final hearing it was not possible for the Tribunal to sit on 19 and 20 January 2026 due to the unavailability of the Employment Judge and Tribunal members on those days. However, the evidence and submissions had been completed by 15 January 2026, allowing the Tribunal to deliberate on 16 January 2026, with judgment and reasons being reserved.

[8]At the start of the final hearing the Respondent made an application to amend the Response. This was to amend the legitimate aim relied on in the s.15 EqA claim, which justified the decision to require the Claimant to move wards on the basis of the legitimate aim of ensuring the need to have sufficient qualified and experienced medical staff in position to provide patient care at all times [list of issues, para 6.4.1].

[9]The Respondent’s application was to amend this legitimate aim to “ensuring compliance with the Respondent’s Conduct Policy”. For the reasons given at the time the Tribunal allowed this amendment and the Respondent’s Amended Response and the list of issues was amended to reflect this.

The Issues

[10]The issues which the Tribunal had to determine in relation to liability were agreed to be as follows: 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any act or omission which took place before 17 March 2024 is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?

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

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

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

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

1.3 Were the detriment complaints made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of?

1.3.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

1.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

1.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 2. Protected disclosure (‘whistle blowing’)

2.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:2.1.1 What did the Claimant say or write? When? To whom? The Claimant says he made disclosures on these occasions:2.1.1.1 31 July 2023, the Claimant emailed Michaela Reyolds (in the Education Team) saying that patients were being given IVs too early;

2.1.1.2 On or about 19 or 28 May 2024 the Claimant reported the same matter verbally to Tracey Hicks (also in the Education Team);

2.1.1.3 On or around 06 November 2023, the Claimant said in a statement he was required to produce in relation to events on 05 November 2023, that staffing levels in the Emergency Department were unsafe following the Claimant being moved to the ward;

2.1.1.4 On 14 June 2024, the Claimant emailed Jeanette Jones, his RCN representative and the Able Lead for the Trust, reporting the issue about IVs being given too early as well as BMs being given at 6am and confused/dementia patients being made to get up, washed and dressed from 5am “to help the day shift staff”.

2.1.2 Were these disclosures of ‘information’?

2.1.3 Did he believe the disclosure of information was made in the public interest?

2.1.4 Was that belief reasonable?

2.1.5 Did he believe it tended to show that:2.1.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation;

2.1.5.2 the health or safety of any individual had been, was being or was likely to be endangered?

2.1.6 Was that belief reasonable?

2.2 If the Claimant made a qualifying disclosure, was a protected disclosure because it was made to the Claimant’s employer? 3. Detriment (Employment Rights Act 1996 section 47B)

3.1 Did the Respondent do the following things:3.1.1 In November 2023 restrict the Claimant from undertaking any Bank shifts, and then after the restriction was lifted in December 2023, continue to restrict him from any shifts in the Emergency Department;

3.1.2 In June 2024, restrict the Claimant from undertaking any Bank shifts.

3.1.3 Exclude the Claimant from emails from the Bank office relating to work opportunities:3.1.3.1 On 23 November 2023 an email about cross-site working;

3.1.3.2 On 17 October 2024 in relation to the oncology and haematology unit;

3.1.3.3 On 15 July 2024 an email about the drug specialist team?

3.1.4 Terminate the Claimant’s contract?

3.2 By doing so, did it subject the Claimant to detriment?

3.3 If so, was it done on the ground that he had made the protected disclosure(s) set out above? 4. Disability 4.1 The Respondent accepts that the Claimant was disabled by reason of dyslexia and autism at all times material to the claim. 5. Direct disability discrimination (Equality Act 2010 section 13)

5.1 Did the Respondent do the following things:5.1.1 Exclude the Claimant from emails from the Bank office relating to work opportunities:5.1.1.1 On 23 November 2023, an email about cross-site working;

5.1.1.2 On 17 October 2024 in relation to the oncology and haematology unit;

5.1.1.3 On 15 July 2024 an email about the drug specialist team.

5.1.2 Terminate the Claimant’s contract.

5.2 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant says he was treated worse than. The Claimant has not named anyone in particular who s/he says was treated better than he was and therefore relies upon a hypothetical comparator.

5.3 If so, was it because of disability?

5.4 Is the Respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to disability? 6. Discrimination arising from disability (Equality Act 2010 section 15)

6.1 Did the Respondent treat the Claimant unfavourably by: 6.1.1 In November 2023, restricting the Claimant from undertaking any Bank shifts, and then after the restriction was lifted in December 2023, continuing to restrict him from any shifts in the Emergency Department.

6.2 Did the following things arise in consequence of the Claimant’s disability? The Claimant’s case is that the conduct that led to the complaints about him on or around 05 November 2023, including swearing at colleagues, arose from his disability. He says that he had been assigned to work in the Emergency Department and was then moved to the ward, which he found difficult because it disrupted his planning and routine. He was therefore under pressure/stress, which is what led to the conduct.:

6.3 Was the unfavourable treatment because of any of those things?

6.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 6.4.1 Ensuring compliance with the Respondent’s Conduct Policy.

6.5 The Tribunal will decide in particular:6.5.1 Was the treatment an appropriate and reasonably necessary way to achieve those aims;

6.5.2 Could something less discriminatory have been done instead;

6.5.3 How should the needs of the Claimant and the Respondent be balanced?

6.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? 7. Reasonable Adjustments (Equality Act 2010 ss. 20 & 21)

7.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? The Respondent has accepted that it was aware of the Claimant’s disability at the material time.

7.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:7.2.1 The requirement to undertake the work of a Bank registered Nurse [PCP1];

7.2.2 The practice of moving Bank staff to another part of the hospital if considered necessary [PCP2];

7.2.3 If the Respondent’s procedure for dealing with complaints against Bank staff, including requiring the member of staff to produce a statement and imposing restrictions without conducting an investigation [PCP3].

7.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that?7.3.1 PCP1: The Claimant has issues with time management, note writing and memory. He struggled to fulfil all of his tasks and this affected his mental health because he felt under pressure.

7.3.2 PCP2: Being moved at short notice (as happened on 05 November 2023) caused the Claimant stress because it disrupted his planning and routine. This ultimately led to the imposition of restrictions on his doing Bank work/working in the Emergency Department.

7.3.3 PCP3: The Claimant was unable to respond properly to the complaint about his conduct on 08 June 2024 in the absence of a clear explanation of the Respondent’s concerns. He was unable to work after restrictions were imposed, the process took a long time and he was signed off with stress as a result.

7.4 Did the lack of an auxiliary aid, namely dictation and/or reading software, put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that he struggled with note writing and reading, and this affected his mental health because he felt under pressure?

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

7.6 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests:7.6.1 Being allowed extra time when giving out medication [PCP1];

7.6.2 Having someone to check over his work [PCP1];

7.6.3 Not move the Claimant to the ward after he had been assigned to the emergency department [PCP2];

7.6.4 Take into consideration the stress caused to the Claimant and therefore not impose restrictions on his work [PCP2];

7.6.5 Provide the Claimant with a clearer explanation of the Respondent’s concerns about his conduct on 08 June 2024 [PCP3];

7.6.6 Hold a meeting with the Claimant more quickly [PCP3];

7.6.7 Not impose restrictions on the Claimant’s work [PCP3];

7.6.8 Not move him to another ward when he had been allocated a shift to a specific ward and if that was not possible to give him advance notice or provide a full explanation as to why.

7.6.9 Provide the Claimant with dictation and/or reading software and/or a planning app [Auxiliary aid].

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

7.8 Did the Respondent fail to take those steps?

[11]At the outset of the hearing the Respondent conceded that the Claimant had made the protected disclosures relied on [issues 2.1.1.1 – 2.1.1.4].

The Evidence

[12]The Claimant gave evidence and evidence was also given by Dr Anna Biley, the Claimant’s aunt. Dr Biley was formerly a registered nurse and had supported the Claimant at a meeting he attended via Teams on 07 August 2024 with Ms Juliana Cordeiro-Sorroche, Modern Matron, who at the time was the Trust’s Head of Temporary Staffing, and Fern Jameson, Deputy Director of Nursing.

[13]For the Respondent the Tribunal heard evidence from Ms CordeiroSorroche, Modern Matron; Lydia Prosser, Bank Office Support Manager; Ms Sam Trumble, a midwife and Clinical Lead for Bank Staff; and Mr Guy Dickson, who at the time was Associate Director of HR Operations for the Respondent and now works for another Trust.

[14]There were witness statements from all witnesses. All witnesses gave evidence under oath and were cross-examined (although Mr Fitzpatrick did not have any questions for Dr Biley).

[15]There was an agreed bundle of documents and a further short bundle from the Claimant containing medical documents and some other documents relating to wages and a data subject access request.

[16]We found the Claimant’s evidence to be clear and consistent. We considered that he was an honest witness, and indeed the Respondent did not suggest that he was being untruthful in relation to any matters. We also found Dr Biley to be honest witness, and in any event her evidence was not challenged by the Respondent. We considered that both the Claimant and Dr Biley gave reliable evidence.

[17]We did not have the same view of the reliability of the Respondent’s evidence. In general, we found all of the Respondent’s witnesses to be vague in relation to key matters, with an apparent lack of understanding of their role and responsibilities.

[18]For example, Ms Trumble’s evidence in her witness statement was that “several wards” had raised complaints about the Claimant and there was “a catalogue of complaints with a theme arising” about him. However, it was accepted that there were only two complaints, from the same ward, about the Claimant, and no evidence in relation to other complaints had been disclosed to either the Claimant or the Tribunal. When this discrepancy was put to Ms Trumble she seemed unable or unwilling to understand the question, and when it was eventually explained to her, after intervention from the Tribunal, was still unable to provide a coherent response.

[19]Mr. Dickson’s evidence was that the decision to terminate the Claimant’s Bank contract was made by him (his witness statement stated, “I made the call that Sam should be removed from the Bank”) at a Decision Making Group (DMG) meeting but he then said in his evidence in crossexamination that it was a group decision. The dismissal letter was neither drafted by him nor approved by him and was sent in the name of a person, Ms Cordeiro-Sorroche, who had not even attended the DMG meeting.

[20]In relation to Ms Cordeiro-Sorroche, we did not consider that any proper explanation was given for her failure to mention that she was aware of the Claimant’s protected disclosures, in her meeting with him on 08 August 2024, despite the fact that the Claimant was seeking to discuss the fact that he had made these with her. Her witness statement also said that she discussed and agreed with Alex Rossiter, another manager, following the DMG meeting, that Alex Rossiter would send the letter notifying the Claimant’s of his removal from the Bank. However, Alex Rossiter had not attended the DMG meeting.

[21]These are examples of the difficulties with the Respondent’s witness evidence, We will deal in more detail with this when setting out our findings of fact. Findings of Fact

Background

[22]The Claimant commenced employment with the Respondent as a newly qualified nurse on 13 March 2023. He worked until 11 June 2023 as employee, when his employment terminated and he was re-appointed to the Respondent’s Temporary Staffing Bureau (“the Bank) on 12 June 2023. The Claimant transferred to the Bank because he required the greater flexibility that this afforded in order to deal with childcare commitments and his wife’s ill health. As a Bank nurse the Claimant was no longer an employee of the Respondent but was a worker. He was issued with what was described as a Bank agreement [p.431 of the bundle].

[23]The Respondent conceded that the Claimant was disabled by reason of dyslexia and autism during the period material to the claim. The Respondent also conceded that it had knowledge of the disabilities during the relevant period.

[24]On 21 July 2023 Kristian Keyte, a Ward Manager, emailed Ms CordeiroSorroche, copying in two other individuals, Clara Grimes and Joanne Hartmann, re: “IV medication query”. The email stated, “In Kate’s absence, I’d like to escalate this to yourself for some clarification, but would be happy to discuss with Georgie Holmes and/or Ellen Thorne if that would be more appropriate. “Both Cheddar and Uphill have had an issue raised from a bank RN this week around giving IV medications in the morning. I’d like to clarify if this is an issue for the individuals raising the concerns, or if practices are incorrect across the rest of the organization. “The RN has refused to give the morning IV antibiotics between 06.00 and 07.00 as they are prescribed for 08.00. The SOP for administration of medicines says all critical medications should be administered within one hour of the prescribed time, but practices are that 08.00 IV medications are given at the end of the night-shift as workload in the morning does not usually allow for tis to happen, normally being administered around 06.00. “My concerns are that either it is standard practice to administer medications that contradicts the SOP and policies, or that the SOP does not meet the needs of the service, or equally, that there is a knowledge gap for the RN refusing to give the medications that needs to be addressed. “Your perspective would be greatly appreciated.”

[25]It is accepted that the Bank RN referred to in the email was the Claimant. Ms Cordeiro-Sorroche said that she was not at the time aware that the Claimant was the RN referred to. The email was then forwarded to two other individuals, Georgina Holmes and Ellen Thorne, for their comments. Georgina Holmes responded, stating that giving prescribed medicines early did not breach the Respondent’s policy, but that the wording of the policy could be amended to make this clear. Kristian Keyte then responded to stating that this appeared to be a reasonable solution.

[26]On 31 July 2023 the Claimant sent an email to Michaela Reynolds, at the Respondent’s Education team, raising concerns about nursing practice at the Respondent. These concerns were that the nursing staff were giving IV antibiotics early in the morning before breakfast. The medications were being given by the night shift team at 6am when the prescribed time was 8am. The Claimant said that he refused to do this as he felt it was incorrect practice and moreover was resulting in documentation being falsified, as the medications were being recorded as being administered at 8am. The Claimant was concerned that this was being done in order to reduce the workload of the day shift. Essentially, his view was that the convenience of the nursing staff was being prioritized over patient comfort and safety. The email also mentioned some other concerns relating to sepsis.

[27]The Claimant subsequently forwarded this email to Jeanette Jones, his trade union representative and Able + lead at the Respondent on 01 July 2024.

[28]The Claimant’s evidence, which wasn’t challenged, was that he discussed the concerns he emailed to Michaela Reynolds verbally with Tracey Hicks from the education team and had conversations with members of the nursing team about his concerns relating to the giving of medication early.

[29]As stated above, the Respondent has accepted that the Claimant’s disclosures of information about IV medications being administered early amounted to protected disclosures.

[30]Given the number of recipients to the email chain which commenced with the email from Kristian Keyte on 21 July 2023 and the fact that the Claimant himself was openly talking about his concerns, we find that by November 2023 it is likely that a significant number of the Respondent’s nursing staff, including managers, were aware that the Claimant had made these disclosures. Although the Claimant’s name is not stated in Kristian Keyte’s email we consider it inherently improbable that the matter would have been discussed without the Claimant being identified. We consider it inherently unlikely that Ms Cordeiro-Sorreche would not have made enquiries as to the identity of the Bank RN when she received the email. Incident on 05/06 November 2023

[31]On 05 November 2023 the Claimant was booked to work a shift in the Respondent’s Emergency Department (“ED”). He had obtained permission prior to the start of the shift from the site manager to finish early at 2am as his wife was unwell and he needed to return home early to look after their daughter. He commenced his shift at 7.30pm. He was then asked at 8pm by “Lesh”, a Band 6 nurse, to move to work in another ward, Sandford.

[32]The Claimant’s evidence is that on being told this he questioned whether it was appropriate as it would leave the ED understaffed and he was unhappy because he was always the nurse who had to move wards and he wasn’t given an explanation for the move. His evidence was that the sudden change was difficult for him because of his autism as it upset his planning for the shift. However, he moved to the other ward and confirmed that it was still acceptable for him to leave at 2am.

[33]There was no direct evidence from the Respondent about this incident The Respondent relies on an email from Jennifer Slee, the Senior Sister in the ED, who sent an email to the Bank office on 06 November 2023 at 8.18am with a complaint form attached [p.172 & 370]. The complaint related to an incident described in the form in the following terms: “Feedback from nurse in charge overnight – very poor behaviour overnight, was asked to move to a ward as ED was settled, was asked to go to Sandford ward and started swearing in the department. Eventually did go to Sandford but then decided to go home 2am (was booked for ED nightshift). Timesheet has been ammended [sic] however the nurse in charge overnight was quite shocked at Sams language and general behaviour.”

[34]On 06 November 2023 the Claimant emailed the Bank office to raise a concern that the record of his shift [p.159] completed by Jennifer Slee stated that he was not required for the full night shift and had refused to move ward. The Claimant pointed out that this was inaccurate as he had moved wards and had received permission to leave at 2am prior to starting the shift.

[35]On 06 November 2023 Deborah Rickard, the Bank Allocation Officer, forwarded the email to Lydia Prosser stating, “Sorry but I’m not sure how to respond to this one, Samuel was booked for ED but he did move to Sandford, however his shift on the system stayed on ED and the note saying that he had refused to move was also finalized by the same nurse.”

[36]On 15 November 2023 Lydia Prosser emailed the Claimant to inform him of the concern that had been raised about his alleged conduct in the complaint from Jennifer Slee. The email did not provide the Claimant with the full complaint but contained what was described as a “snippet” in the following terms: “was asked to move to a ward as ED was settled, was asked to go to Sandford ward and started swearing in the department. Eventually did go to Sandford but then decided to go home 2am (was booked for ED nightshift).”

[37]The email stated that as a result of the complaint a full booking restriction would be imposed on the Claimant, meaning that he could not work any further Bank shifts and shifts already booked would be cancelled. The Claimant was asked to provide a statement. Lydia Prosser’s evidence was that the imposition of a full booking restriction would have been reached after discussion in the team and was standard practice when a complaint of this type was received.

[38]The Standard Operating Procedure for the Bank [pp.623 – 630] provides at section 5, which sets out the procedure for dealing complaints about Bank staff: “The TSB team may deem it appropriate to restrict the bank worker from booking shifts, until the complaint/concern raised has been investigated/resolved (see section 2 for further details).”

[39]The Claimant prepared a statement relating to the incident with the assistance of his trade union, and on 19 November 2023 submitted it to Lydia Prosser [pp.164 – 166]. The statement is relatively lengthy and detailed. It included the following information: “At 8pm, I was told by band 6, Lesh, that I had to move to the ward as I was the bank staff. I said that I was not happy that it was always me that was moved and stated my concern for staffing levels. “I do not recall swearing and if I did it would’ve been said in frustration due to the situation that I was put in and not directed at any staff members. “The hospital including ED are aware of my occupational health assessment stating I am dyslexic and have communication difficulties and need to prepare and evaluate each place of work where I am to be. I need time to adapt and sometimes extra support. Some band 6 and 7 staff within ED know that I am awaiting an assessment for autism and occupational health and know that I’m on medication to support me at this time.”

[40]This email is also relied on, and is conceded to be, a protected disclosure, because of the concern about staffing levels. This is the first time that the Claimant notifies the Respondent in writing about his autism.

[41]In his covering email with the statement the Claimant stated that he was “happy to use the incident as a learning opportunity for both sides on communication” and that he would not be putting himself forward for shifts in the ED in the foreseeable future.

[42]Lydia Prosser then forwarded the Claimant’s statement to Jennifer Slee and other staff members in the ED on 28 November 2023 asking for them to come back to her as soon as possible once they had looked at it. On the same day Caroline Bool, Senior Sister (not Carli Neath, as stated in Lydia Prosser’s witness statement, although Carli Neath was copied into the email) emailed back to say that she had read the statement but wanted more information from the nurse in charge on the night and would come back when she had obtained this.

[43]On 04 December 2023 Caroline Bool emailed Charlotte King, the Matron for Emergency Care, stating that she had made enquiries into the incident with the Band 7 team following a review of the Claimant’s statement. The email included what appears to be an extract from an email or statement from someone called “Lesh” who was apparently the nurse in charge of the ED at the start of the Claimant’s shift (the original email or statement has not been disclosed). The extract states (the original spelling and syntax are preserved): “,,,one of my night shift, Sam, bank staff was on a night shift and he was extra, csm asked to move Sam to ward, fuck I booked AOA to ed, then turned around and said, he want to finish at 2am as his wife is ill, I have explain go to ward. he was using bad language in the middle of department when both visitors and patients were pres department also that time many thanks Lesh”

[44]Caroline Bool states that the extract shows that the Claimant did not ask to leave early until after he was asked to move wards. However, the Tribunal are satisfied that the Claimant had asked for, and obtained permission, to leave at 2am prior to attending for his shift.

[45]The email also states that although the Claimant said he did not recall swearing, “any swearing in a patient facing area is unacceptable”. The email also states that although the Claimant had disclosed his dyslexia during his probationary meeting he had declined any support or reasonable adjustments in relation to this. The email concludes that Caroline Bool considered that the Claimant should remain restricted but wanted Charlotte King’s opinion as, “I feel he will question it and take that decision as high as he can…”.

[46]On 11 December 2023 Charlotte King emailed Caroline Bool in response stating, “I have reviewed both Sams statement and your response. “As the matron my decision is that we will not allow Sam to book bank shifts in Weston ED as his behaviours do not align with our Trust Values. “If Sam has any queries relating to this decision please direct him to me.”

[47]On 13 December 2023 at 1.17pm Lydia Prosser emailed Caroline Bool stating, “We have had a lot of conversation with Sam and we have discussed actions moving forward, we haven’t yet received further info for this from yourself and therefore I have closed the concern. “However, a restriction will remain in place for AOA shifts and AMU meaning Sam will not be able to book these shifts moving forward.”

[48]On 13 December 2023 at 1.25pm Caroline Bool emailed the Bank office, forwarding the email from Charlotte King. Lydia Prosser replied confirming that the Claimant would remain restricted booking shifts in ED and also AOA shifts.

[49]“AOA” means allocate on arrival and means that the Bank nurse was not allocated a department or ward when they booked their shift but would be assigned to one when they arrived to start it. “AMU” was a department within ED.

[50]In the meantime the Claimant had been emailing Lydia Prosser chasing up an update on the progress of the complaint against him. On 05 December 2023 Lydia Prosser had emailed him asking for a copy of the OH report referred to in his statement. She also said that the general restriction would be removed from him but he would remain restricted from booking AOA shifts for the foreseeable future as a support measure as he had stated that he needed time to assess the workplace when he started his shifts and this was not always possible with AOA bookings.

[51]The Claimant replied by email on the same day stating he agreed with the AOA restriction and that he had had to stop picking these up as he found it too stressful to organize himself for them. He said he would try to find the OH report. He also stated that he was about to join a group for nurses with neurodiversity and was still awaiting his autism assessment.

[52]Lydia Prosser said that she had placed the restriction on AOA shifts after speaking with a clinical lead, whose name she could not recall, as she considered that in the light of the information the Claimant had provided to her they were not suitable for him. She said that she was unaware of any protected disclosures the Claimant had made earlier in the year and did not view the Claimant’s reference to staffing levels in his statement as being a concern about safety, because she said the Claimant had stated that the department was fully staffed. She said that the imposition of the restriction in relation to AOA was not related to any protected disclosures and in any event the Claimant appeared to be happy with it.

[53]As far as the incident on 05 November 2023 is concerned we have, as we have stated, only heard from the Claimant. The Respondent has not called any of the nursing staff who were present or even any who investigated it. Taking the Respondent’s evidence at its highest, the Claimant swore once. We are satisfied that if the Claimant did swear it was not directed at anybody and was a result of frustration and stress at the sudden change in the arrangements for this shift. The Claimant did not refuse to move wards and had permission to leave at 2am.

[54]We are satisfied that the nursing staff in the ED exaggerated the seriousness of what the Claimant did when they raised the complaint and, in relation to the move to Sandford ward and his leaving at 2am, supplied false information to the Bank office.

[55]In her witness statement Lydia Prosser said that the majority of the shifts that the Claimant worked resulted in complaints about him. However, the only complaint she was involved in, and that she was able to give evidence about, was the complaint relating to the 05 November incident. She said that other complaints might have been dealt with by other staff in her department. There was no evidence in relation to these other complaints (apart form the complaint raised in June 2024) and if they were made they were not raised with the Claimant.

[56]We accept Lydia Prosser’s evidence that she was not aware of the Claimant’s written disclosure regarding IV medication earlier in the year, or the verbal discussion he had with Tracy Hicks, and, as she did not work on the wards, was unlikely to have taken part in or overheard verbal discussions he had with nursing staff about his concerns in relation to this. We also accept that she did not appreciate that the concern about staffing levels in his statement was a protected disclosure.

[57]We don’t consider that Lydia Prosser would have been able to overrule the decision of senior staff ward if they stated that they did not want the Claimant to work in the ED. However, it is clear that she was not inclined to support or argue the case for the Claimant. Emails

[58]The Claimant alleged that he had not received various emails from the Respondent. He deals with this fairly briefly in his statement, referring to an email dated 15 July 2024 advertising a position for a Band 5 nurse to deal with patients with drug misuse problems and an email dated 17 October (it is not clear from either the statement or his email whether this is sent in 2023 or 2024) asking for expressions for interest from chemo trained staff to work in the Trust’s Oncology and Haematology Day Unit. It is not made clear how these emails were brought to the Claimant’s attention or whether he would have been a suitable candidate, or indeed, whether he would have wanted to apply for them if he was.

[59]The Respondent’s evidence was that there was no reason why the Claimant would not have received emails relating to vacancies or other other opportunities as his emails contact details were correct and up to date and there was nothing which would have prevented emails being sent to him. He was not excluded from any emails sent out relating to vacancies or job opportunities.

[60]It was put to the Claimant in cross-examination that there may be technical reasons why an email might not reach the intended recipient which were not the fault of the sender, although no evidence was put forward showing that there was such a technical glitch in this case. Incident in June 2024

[61]On 09 June 2024 at 11.43 Kristian Keyte, emailed Alexandra Rossiter, Programme Manager – Temporary Staffing, Joanne Hartmann and all of the matrons at Weston Hospital in the following terms [p.196]: “I just wanted to notify you of a situation that has reared its head again. “RN Sam Thompson [sic] was working on Cheddar on Friday night. Again, he categorically refused to administer the morning IVs as they are prescribed for 8,00. “Although he is right in that they are prescribed for 08.00, the usual routine of the wards in Weston is that they are given between 06.00 and 07.00 as the would likely be very late if the day shift waited to give them after the oral medications round in the morning… “Because Sam would not give the morning IVs, the staff on Cheddar felt extremely pressured yesterday morning to be able to administer the drugs on the drugs round, then the IVs, and still have enough time to fit in all the medications at the right time throughout the remainder of the day. Fortunately, the team on Cheddar pulled together and the patients all received their medication as prescribed but did have to make significant changes to the ward routine as the subsequent medications rounds all needed to be later than usual “I do understand what Sam is saying and don’t want any nurse to feel they are jeopardizing their NMC registration by doing what they believe is the right thing, but am disappointed that this is still happening after I have discussed this with him previously, and I believe other Ward Managers have had this discussion also. “I don’t believe Sam is being intentionally obstructive or awkward but feel some education on the bigger picture around medication administration would be of benefit.”

[62]At 12.44 Joanne Watts, a Matron, replied to the email [p.195] stating: “I have also had an issue with this bank nurse – see below. “Just wanted to raise a concern that we have encountered with a member of bank staff this morning. Approximately 5 minutes ago a member of staff approached me to advise they had intercepted bank staff member Sam Thompson in our clinical drug room. He had not been working in ED. Sam advised the RN who challenged him, that he was leaving the hospital after a nightshift (I am unsure where he had been working) when he assisted a patient from outside into our waiting room and had decided while he was waiting to get him some paracetamol. Sam then proceeded to enter our clinical room (I understand after speaking to staff he went into the room after another member of staff left and he stopped the door closing) and obtained paracetamol. My RN in triage intercepted this and threw the drugs away and advised Sam he cannot do this and she will administer any meds required. She asked him if it was prescribed and he stated he was giving it on a PGD. “I am alarmed that this member has staff has walked into a clinical area whilst not on shift, dispensed medication and then proceeded to administer this medication to a patient “Sam was blocked from ED previously due to multiple issues we had with him. General poor attitude, refusing to move to other areas, poor behaviour etc”.

[63]Alexandra Rossiter responded copying in the Bank governance support department, “as this is our process for managing complaints.”

[64]On 10 June 2024 Tanya Mead, Governance Co-Ordinator for the Bank, emailed the Claimant stating, “Hi Samuel “We have received a concern regarding an incident where you entered the Emergency Department in Weston General on 8th June 2024 while not on shift there and accessed the clinical drug room, stopping the door from closing after another staff member left, and then obtaining paracetamol to give to a patient brought into the ED waiting area. It is reported a Registered Nurse on duty intercepted this and threw the drugs away, advising that this should not happen and she will administer any medication required. When asked if this was prescribed you had stated you were giving it on a PGD. Please can you provide us with your feedback and a reflective statement on this incident, to be provided by 14th June 24. Due to the nature of this concern a full booking restriction is in place and advance booked shifts have been cancelled. Once we receive your feedback we will review and remove if appropriate.”

[65]On 20 June 2024 the Claimant provided a statement to Tanya Mead. He stated that he had finished his night shift on Cheddar Ward at 7.35 and was leaving work. He had not had time to change out of his nursing uniform. He left the hospital car park in his vehicle and when he reached the roundabout just beside the hospital encountered a car accident which had just taken place. He stopped to offer assistance.

[66]Two people were walking around the crash site. One of them said that they were in pain. The Claimant asked him if he was able to sit in the back of the Claimant’s car. The man, referred to in the statement as Patient X, did not appear to be injured so the Claimant said that he would take him to the Accident and Emergency department (A & E) of the hospital as it was just around the corner. Patient X agreed.

[67]The Claimant stated that he took Patient X to A & E and found a wheel chair due to Patient X feeling he couldn’t walk the distance. Whilst they waited at the A & E department he asked Patient X if they had any allergy or had taken any medication that morning and was informed they were allergic to penicillin. When it was Patient X’s turn to be seen at reception he pushed Patient X toward the window but was told abruptly to wait. They returned to the line and were booked in by another person on the front desk to whom Patient X gave their details and an account of what had happened.

[68]The Claimant could not see any clinical staff at the front desk or in or around the waiting area. He took Patient X to the waiting area. He asked Patient X how his pain was and was informed that he was in quite a lot of pain. He asked Patient X if he would like to try to get him some paracetamol and Patient X replied that he would. The Claimant knew that he could administer this pain killer to Patient X and that this would help deal with this pain. He also felt that it was his duty under the NMC code of conduct to help this patient within his professional capability.

[69]The Claimant entered the ED area to look for staff and couldn’t see any. He went down to the Major area where he saw Troy Peters, a nurse, and explained that he wasn’t on duty and had just brought in someone who had had a car accident and needed some paracetamol.

[70]Troy Peters allowed the Claimant into the ED and he was given some paracetamol by another nurse. As the Claimant left the clinical room he saw Natasha Bendall, another nurse. He tried to explain what had happened and what he was and was told aggressively that he shouldn’t be giving paracetamol as he wasn’t working there that day and she would deal with the patient once triaged. The Claimant handed over the paracetamol and asked if she could give Patient X some pain relief and was told in an aggressive manner she would make the decision in triage. She then disposed of the paracetamol in the sharps bin. The Claimant felt upset at this and went back to the waiting area to see Patient X and explained that the nurse would see him and discuss pain relief. He then left.

[71]The Claimant’s account of events was not really challenged by the Respondent, who did not call any of the other nursing staff involved to give evidence. The Tribunal accepts that the Claimant’s account of the incident is accurate and truthful.

[72]The Bank Governance team forwarded the Claimant’s statement to Joanne Watts, the Matron of the ED. She replied by email on 04 July 2024 stating that the majority of it was irrelevant and the Claimant was not authorized to administer medication without prescription whilst off duty.

[73]The Claimant had been signed off on sickness absence from 17 June 2024. The fit notes state that this is due to work related stress He remained signed off sick until the termination of his Bank contract.

[74]On 15 July 2024 Joanne Crawford, Matron in the ED, sent the Claimant’s statement and Jo Watts’ email of 04 July 2024 to Sarah Dodds, the Head of Nursing, copying in Sam Trumble, Tanya Mead and Karen Moore, and asking for advice [p.215]. Sarah Dodds responded stating that the matter should be referred to Alexandra Rossiter as the Bank lead but she was available for discussion if needed. On 16 July 2024 Alexandra Rossiter emailed stating that she would welcome advice from Sarah Dodds on whether the matter should be referred to the GMC. Sarah Dodds replied [p.222] stating, “Hi, had a quick chat to Naomi Adams and said I thought we need a DMG – who is the HR rep? Will then set up a date and invite you.”

[75]On 17 July 2024 Joanne Crawford, the Clinical Lead for Bank Staff, emailed Joanne Watts and Caroline Bool asking for the communication email relating to the restriction on the Claimant working in the ED following the November 2023 incident and clarification of the reasons for this. Joanne Watts responded on 19 July 2024 [p.228]: “Apologies I cannot find my email – from memory I believe that this was due to Sam’s poor attitude, he would refuse to move to other areas/wards. He could be difficult and argumentative when asked to do something. His general demeanour was unprofessional. Sorry I don’t have clear examples.”

[76]On 16 July 2024 the Claimant emailed Emma Wood, an Executive Director of the Respondent. His email stated, “I am currently trying to raise grievance and discrimination harassment and bullying and also whistleblowing against the Trust.”

[77]Guy Dickson responded to the email on 22 July 2024 stating that the points raised would be looked at. He was referred to the Trust’s Respecting Everybody Policy.

[78]On 23 July 2024 the Claimant emailed Professor Stuart Walker, the Trust’s Interim Chief Executive Officer, alleging that Guy Dickson had not addressed the issues the Claimant had raised. The email was forwarded to Guy Dickson for him to deal with.

[79]The Claimant was asked to attend a meeting with Sam Trumble and Joanne Crawford on 30 July 2024. The purpose of this meeting was to have been to discuss the complaint against the Claimant and the statement he had provided in relation to it. The Claimant emailed on 23 July 2024 requesting reasonable adjustments in relation to his dyslexia and also that he was waiting to be seen by the autism team. Sam Trumble said that this was the first time that she had been aware that the Claimant was neurodiverse.

[80]On 26 July 2024 Sam Trumble sent a letter to the Claimant setting out the agenda for the meeting and confirming that adjustments would be made where possible.

[81]The Claimant met with Sam Trumble and Joanne Crawford on 30 July 2024 to discuss the complaint against him [pp.328 – 361]. In the meeting the Claimant alleged that he was a whistleblower. Following this meeting Sam Trumble provided her note of the meeting to Guy Dickson [p.264 – 264].

[82]On 07 August 2024 the Claimant met with Fern Jameson, Deputy Director of Nursing and Juliana Cordeiro-Sorroche for what was described as a wellbeing meeting. Georgia Liddington from the Respondent’s HR department also attended and the Claimant was supported by Dr Biley.

[83]Later the same day a Decision Making Group (DMG) meeting was held. The meeting was attended by Guy Dickson, Georgia Lidington, Sarah Dodds and Fern Jameson [p.366]. The conclusion reached at the meeting was that the Claimant’s bank contract should be terminated.

[84]The letter informing the Claimant of the termination of his contract was sent on 16 August 2024 [p.304]. The letter purports to be from Juliana Cordeiro-Sorroche, although she did not actually draft it and did not even attend the DMG meeting. The letter was apparently drafted by Georgia Lidington. It concludes, “I have reviewed your reflections of the incident on 09/06/24 and as stated above, I remain concerned that you have not acknowledged that your actions were unacceptable nor have you acknowledged the risk to patient safety that your actions posed, therefore, I will be removing you from the UHBW bank register from today’s date. The decision to remove you from the register had been taken because of the seriousness of the incident. You were not authorised to administer medication without a prescription while off duty and acted outside of your professional boundaries. It is of serious concern that there continues to be no acknowledgement from you around this. Despite our attempts to understand your perspective and open up a reflective discussion, we do not feel you have shown any insight or reflection into your actions or provided us with assurance that you would do anything differently should a similar situation arise in the future.”

[85]On 08 August 2024 Jeanette Jones forwarded an email to Fern Jameson and Georgia Lidington from the Claimant [p.285]. This referred to dyslexia and autism assessment and concerns around IV practice. The Relevant Law Protected Disclosure Detriment

The Relevant Law

[86]As stated above, the Respondent has accepted that the Claimant made the protected disclosures relied on. There is a dispute as to whether some of the allegations amount to detriments and in relation to all the allegations it is disputed that the Claimant was subjected to detriments on the ground of the protected disclosures.

[87]S.47B ERA provides: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done – (a) by another worker of W’s employer in the course of that other worker’s employment, or (b) by an agent of W’s employer, with the employer’s authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to a detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker’s employer.

[88]Section 48 ERA provides, (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B… (2) On a complaint under subsection 1A it is for the employer to show the ground on which any act, or any failure to act, was done.

[89]A worker has been subjected to a detriment if a reasonable worker might take the view that the treatment was a detriment: Warburton v Chief Constable of Northamptonshire Police

[2022] ICR 925

. There does not need to be any physical or economic consequence, although an unjustified sense of grievance cannot amount to a detriment.

[90]Although s.48(2) provides that it is for the employer to show the ground on which any act or failure to act is done, this does not mean that the burden shifts to the employer once the worker establishes that they have made a protected disclosure.

[91]The proper approach to the burden of proof and the drawing of inferences in whistleblowing cases was addressed by the EAT (Simler P) in International Petroleum Ltd and Others v Osipov and Others

UKEAT/0229/16

UKEAT/0058/17

at [115]: “Burden of proof and inference drawing 115. Mr Forshaw submits and I agree that the proper approach to inference drawing and the burden of proof in a s.47B ERA 1996 case can be summarised as follows:(a) The burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made.

(b) By virtue of s.48(1) ERA 1996 the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them: see London Borough of Harrow v Knight at paragraph 20.

(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.

[92]The Tribunal must consider, what consciously or unconsciously, was the employer’s reason for the treatment. The protected disclosure must be a material, that is, more than trivial, influence: Fecitt v NHS Manchester

[2012] ICR 372

[93]Guidance on the burden of proof and the drawing of inferences in discrimination claims is given by the EAT in Bennett v MiTAC Europe Ltd

[2022] IRLR 25

. We consider that this guidance has equal force in whistleblowing claims. The EAT stated that it was important that tribunals were mindful of the following points in cases where the burden of proof has shifted to the Respondent to establish that discrimination has not occurred: 1) The standard of proof necessary to discharge the burden is the balance of probabilities; 2) The protected characteristic need only have been a material cause of the treatment; 3) The general requirement for ‘cogent evidence’ to discharge the burden does not apply a standard of proof beyond that of the balance of probabilities. Nonetheless, it is an important point. It is the respondent that generally can provide evidence about the reason for the claimant’s treatment. The shifting burden of proof was designed to assist claimants in discrimination claims because such claims generally require an analysis of the reasoning process of an employee, or employees of the respondent. The respondent will be able to choose what evidence to call about the decisionmaking process and it is likely to be the key evidence in deciding whether discrimination has occurred; 4) Whilst documentary evidence is likely to be important, because express evidence of discrimination is rarely available, much is likely to turn on the evidence of the decision maker(s). An important consequence of s.136 is that if the respondent chooses not to call the relevant decision maker it puts itself at considerable risk of an adverse finding, should there be sufficient evidence to shift the burden of proof, because it will face substantial difficulty in discharging the burden; 5) The requirement for ‘cogent’ evidence to discharge the burden should not be disregarded. It is guidance from the Court of Appeal, approved by the Supreme Court; 6) The fact that a decision maker is not called to give evidence does not necessarily mean that the required cogent evidence cannot be provided. There may be compelling documentary evidence, or others might be able to give convincing evidence that they know the reason why the decision was taken. However, there should be a reasoned analysis of such evidence; 7) It will usually be necessary to consider why a decision maker was not called to give evidence. There may well be a compelling reason – a witness could be unwell or have died. Distance should not be assumed to be an unsurmountable barrier to a witness giving evidence because an application can be made for a witness to give evidence by video, and could be made before the Coronavirus pandemic made it a common occurrence. Where no reason or an unconvincing reason is given for the absence of the decision maker, particularly careful analysis is required of the evidence to determine whether, on balance of probabilities, it is sufficiently cogent to prove that the protected characteristic was not a material factor in the decision taken; 8) On occasions parties choose not to call a witness because, if the witness was called it is likely that their evidence would be damaging. That possibility should be borne in mind, particularly where the respondent is reticent to explain why a decision maker is not giving evidence; 9) As the protected characteristic need only be a material factor in the making of the impugned decision, the fact that there is evidence that some other factor was the primary reason for the treatment complained of does not exclude the possibility that the protected characteristic was a factor in the treatment.

[94]In relation to the decision-maker’s knowledge of the protected disclosure, the decision of the Supreme Court in Royal Mail Ltd v Jhuti

[2020] ICR 731

does not apply directly to detriment complaints under s.48, as Jhuti concerned a complaint of automatically unfair dismissal under s.103A.

[95]The issue of knowledge and causation was addressed by the EAT in First Greater Western Ltd v Moussa

[2024] IRLR 697

. The EAT (Kerr J) noted that the question of whether a detriment was inflicted on a claimant on the ground that the claimant made a protected disclosure is ultimately and always a factual conclusion for the tribunal to make [110]. If the Tribunal is able to establish a causative link between the making of a protected disclosure and the detriment, even if that link is a “collective memory” shared by the employer’s management, the tribunal will not err in upholding the complaint.

[96]In Henderson v GCRM Ltd

[2026] ICR 101

the EAT (Lord Fairley) held that Jhuti should not apply to detriment complaints under s.47B(1A) and that a decision maker who was not aware of or influenced by the protected disclosure could not be liable if manipulated by another individual who was. However, the EAT commented that there was no obvious reason why Jhuti could not apply to a complaint of non-dismissal detriment under s.47B(1). Disability Discrimination Direct discrimination

[97]Section 13 of the EqA 2010 provides: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[98]The burden of proof provisions set out in s.136 EqA 2010 apply to this complaint. Accordingly, it is for the Claimant to prove facts which show a prima facie case that he has been subjected to the detriments alleged because of the protected characteristic of disability.

[99]If the Claimant can prove such facts, it is for the Respondent to prove that the treatment complained of was in no sense whatsoever influenced by the relevant protected characteristic: Igen v Wong

[2005] IRLR 258

[100]A prima facie case is not made out simply by the Claimant showing a difference in treatment and a difference in status: Madarassy v Nomura International Plc

[2007] ICR 867

. “Something more” is required to shift burden of proof.

[101]Even if a Tribunal concludes that an employer’s treatment of an employee calls for an explanation, that does not mean that first stage of the Igen v Wong test is satisfied. There still has to be material to show that any explanation was tainted by discrimination. Discrimination arising from disability

[102]S.15 EqA 2010 provides:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability,and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[103]The EAT in Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

held that there are “two distinct causative issues” which must be considered when determining whether the “somethings” alleged arose in consequence of the Claimant’s disability these being, “(i) did A treat B unfavourably because of an (identified) something? And (ii) did that something arise in consequence of B’s disability? The first issue involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied.

[104]The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.” The link between the unfavourable treatment and the something arising in consequence of disability can be relatively loose and the discriminator’s motive is irrelevant: Hall v Chief Constable of West Yorkshire

[2015] IRLR 893

[105]It is possible for an employer to justify unfavourable treatment of a disabled employee under s.15(1)(b) EqA 2010 if it can show that the treatment was a proportionate means of achieving a legitimate aim. To be proportionate the unfavourable treatment has to be both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so: Homer v Chief Constable of West Yorkshire

[2012] UKSC 15

[106]When assessing proportionality the Tribunal must apply an objective test, having regard to the Respondent’s workplace practices and organisational needs: City of York Council v Grosset

UKEAT/0015/16

. Any justification defence put forward should be subjected by Tribunal to a to close scrutiny which balances the discriminatory effect of the treatment on the employee against the aim sought by the employer and the options available to the employer in the circumstances: Burdett v Aviva Employment Law Services

UKEAT/0439/12

[107]When determining whether or not a measure is proportionate it will be relevant for the ET to consider whether or not any lesser measure might nevertheless have served the employer’s legitimate aim: Naeem v Secretary of State for Justice

[2014] ICR 472

. Reasonable Adjustments

[108]Section 20 EqA 2010 states: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for these purposes, a person on whom the duty is imposed is referred to as A. (2) The duty imposes the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disable, to take such steps as it is reasonable to have to take to avoid the disadvantage … (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

[109]Section 21 EqA provides that A discriminates against a disabled person if it fails to comply with the duty.

Conclusions

[110]We will set out our conclusions in accordance with the issues identified and set out in the list of issues at para 9 above.

[111]Mr Fitzgerald confirmed that the Respondent was not seeking to argue that any of the complaints raised was out of time. We consider that all of the complaints raised were in time, either taking place after 17 March 2024 or forming part of conduct extending over a period, the last act of which was in time.

[112]The Respondent has accepted that the Claimant made the protected disclosures relied on. As stated above the Tribunal is satisfied from the email from Kevin Keyte of 21 July 2023 that the fact that the Claimant had raised concerns about IVs being administered too early to patients was widely known amongst nursing staff, including senior staff.

[113]The next issue we have to address is whether the Claimant was subjected to the detriment at para 3.1.1, namely that in November 2023 he was restricted from undertaking any Bank shifts and then, after the restriction was lifted in December 2023, was continued to be restricted from undertaking any shifts in the Respondent’s Emergency Department.

[114]We are satisfied that this happened and that it amounted to a detriment.

[115]We next have to consider whether that was on the ground that he made a protected disclosure.

[116]We have found that the complaint about the Claimant which led to his restriction exaggerated the seriousness of what the Claimant is alleged to have done and was based on false information. The nursing staff, including senior nursing staff, produced a complaint which was misleading.

[117]It was suggested by Mr Fitzgerald in his submissions that the nursing staff in the Emergency Department would not “confect complaints” about the Claimant for this reason, as patients requiring IV were not in the Emergency Department. We don’t accept this submission. It is clear from the evidence that staff were assigned to different department and wards in the Respondent depending on resource requirement. The Claimant’s disclosure raised an issue which put pressure on the nursing staff, as it involved weighting the convenience of the staff against the comfort and safety of the patients. We consider that the nursing staff provided misleading information about the Claimant to the Bank and this is what resulted in the restriction and the subsequent ban on his working in the ED, which does not seem to have been properly recorded and for which no proper reasons are given.

[118]The swearing in our view, based on our conclusions on what happened, was a relatively minor incident. We are not satisfied that the Respondent has produced clear and credible evidence which shows the reason for the detriment and that it was not materially influenced by the protected disclosures. The Respondent is liable for the detriment of restricting the Claimant form working in the ED caused by the misleading and exaggerated complaint raised by the nursing staff. We are satisfied that the complaint was materially influenced by the Claimant’s disclosures. Accordingly we find that this complaint should be upheld.

[119]In relation to the decision to remove the Claimant from doing AOA shifts, no complaint is raised about this, so we don’t need to decide whether that decision was influenced by the protected disclosures.

[120]The next alleged detriment at para 3.1.2 is that the Claimant was restricted from undertaking any Bank work in June 2024. We find that this again was a result of a complaint from nursing staff about the Claimant. We note that the complaint followed directly from the email from Kristian Keyte recording that the Clamant was again raising his concern about the early administration of IV meds.

[121]We conclude that the timing of the raising of the complaint, within an hour of the matrons being made aware that the Claimant was raising the IV issue again, is significant, and means that the Respondent has to show the reason for the detriment and that it was not influenced by the Claimant’s protected disclosures. We note that the email from Jo Watts refers to the earlier decision to block the Claimant from ED because of general poor attitude, refusing to move and poor behaviour. This is a generalized complaint and is misleading. There was only one incident, which we have found was exaggerated and not accurately reported by Jennifer Slee.

[122]The booking restriction appears to have been put in place by Tanya Mead, but she was not called to give evidence and neither was Alex Rossiter. The Tribunal draws an adverse inference from the failure to call obviously relevant witnesses.

[123]In the Tribunal’s view, the seriousness of what the Claimant did is exaggerated in the complaint. The fact that the Claimant was in the ED is directly linked in the complaint to the earlier decision to exclude the Claimant from the ED, which the Tribunal has found was because of the Claimant’s protected disclosures. The complaint refers to the Claimant administering medication, but the medication in question was paracetamol, which could have been purchased from a high street chemist.

[124]The Tribunal concludes that the Respondent has not shown that the complaint about the Claimant and the decision to restrict him from working on the Bank in June 2024 was not materially influenced by the protected disclosures that he made and accordingly this complaint is upheld.

[125]The next complaint [para 3.1.3] is the alleged exclusion of the Claimant from emails relating to work opportunities.

[126]Our conclusion in relation to this complaint is that the evidence is too vague for us to conclude that the Claimant was subjected to a detriment. If the complaint is in relation to an email sent on 17 October 2024 it in any event relates to a vacancy advertised after he left the Responent. There was no evidence that showed a prima facie case that the Claimant would have been suitable for the roles or would have wanted to apply for them. We note that he had left full- time employment in order to work on the Bank because of the flexibility. The Tribunal can provide reasonable assistance to an litigant in person in relation to the presentation of their case but cannot infer a key element of the Claimant’s case in the absence of evidence or submissions that would support it.

[127]The final alleged detriment is the termination of the Claimant’s contract. There is no dispute that this happened and that it amounted to a detriment.

[128]The Tribunal considered Mr Fitzgerald’s submission that the decision to terminate the contract was not properly a detriment because the Claimant had expressed the view in his communications with the Respondent that trust had broken down and that he did not see how he could work for the Bank again [p.363]. The Tribunal concludes that the Claimant’s view of the situation arose from the decision to restrict his work on the Bank in June 2024 following the allegation about the incident on 09 June 2024. The Tribunal has concluded that this decision was a detriment on the ground of the Claimant’s protected disclosures and as such the Claimant was justified in considering that trust with the Respondent had broken down. It does not mean that the decision to terminate his Bank contract was not also a detriment.

[129]The decision to terminate the Bank contract involves considering both the report from Sam Trumble following the meeting with the Claimant on 30 July 2024 and the subsequent decision of the DMG at the meeting on 07 August 2024.

[130]The meeting on 30 July 2024 was attended by the Claimant, Sam Trumble, Jeannette Jones and Joanne Crawford. Both Sam Trumble and Joanne Crawford were clinical leads for the Bank Staff.

[131]We heard evidence from Sam Trumble and the Claimant an there is a transcript of the meeting [pp.328 – 361].

[132]We had some difficulties with evidence of Sam Trumble. On many occasions she seemed vague and unclear in her evidence and did not appear to understand questions relating to it, even when they were explained to her.

[133]We were concerned about her evidence that there was a catalogue of complaints about the Claimant. However, no evidence was presented about these and the Claimant had not been informed of them. Either Sam Trumble was exaggerating matters or the Respondent was concealing the evidence. This did not assist the credibility of Sam Trumble’s evidence or the Respondent’s case generally.

[134]Sam Trumble’s email setting out her report to the DMG [p.264]. Included the following statements: “He was unable to reflect or learn from this situation as he does not believe he has done anything wrong with regard to transporting an injured member of the public in his personal car, bypassing the ED triage processes, entering the clinical area, the drug room, he felt that paracetamol was a low risk drug to administer in the circumstances… There is no ownership on the severity of the situation.”

[135]This email is misleading as it does accurately reflect the discussion in the meeting, as recorded in the transcript. In particular, it was not the case that the Claimant did not reflect on what had happened and consider whether he could behave differently. The transcript records an exchange between the Claimant and Joanne Crawford in which she explains that if she was in the Claimant’s position she would have taken the patient to reception and handed him over at that point. The Claimant responded: OK, so I know that now I know that if we are handing somebody over to a safe space. That that's what I can do.” Joanne Crawford responded, “That’s fine. Brilliant. Thank you very much”. The Claimant then stated: “I I'm sorry. OK, that's a reflective practise and the Gibbs reflective cycle” [p.356].

[136]When this was pointed out in cross-examination to Ms Trumble she expressed doubts over the accuracy of the document, even though it was a transcript and was presented as evidence by the Respondent. She then said that she didn’t accept what the Claimant was saying and that in fact she was not convinced that he had learnt anything or reflected and would behave differently. However, she could not provide a coherent explanation as to why that was the case. She confirmed that she was not alleging that the Claimant was being untruthful when he spoke in the meeting.

[137]She referred in her email to the Claimant using his own car to take the patient to the hospital as being wrong. However, this was not part of the original complaint and in the meeting Joanne Crawford appears to accept that she would have done the same in the circumstances.

[138]We are satisfied that at the point Sam Trumble drafted the email setting out her report to the DMG she was aware of the Claimant’s protected disclosures. The fact that the Claimant considered himself to be a whistleblower is referred to expressly in the email. We find it more likely than not that even if she had not seen the email she was aware that the Claimant had raise disclosures about IV use, as we think it likely that this was by this point common knowledge amongst senior nursing staff, and that there was a view that the Claimant was causing difficulties for nursing staff because of his concerns about the way IV meds were being administered.

[139]As such we are satisfied that the report presented a negative view of the Claimant which was not justified and that the Claimant’s protected disclosures were a material cause of this.

[140]Sam Trumble’s report was then provided to the DMG panel. We were troubled by the Respondent’s evidence in relation to this panel and it’s decision.

[141]Firstly, there is a failure to call obviously relevant witnesses, and in particular Sarah Dodds or the other senior clinician who attended the panel, Fern Jameson. Guy Dickson was from the Responent’s HR department and was unable to give evidence about clinical issues and, in particular, whether the Claimant could reasonably be regarded as an unsafe nurse. Furthermore, Sarah Dodds was more senior than Guy Dickson, in terms of her grade. As such we would expect that she would have the final say, or at the very least be significantly involved in, any decision reached in the meeting.

[142]The other witness called by the Respondent to give evidence about the DMG panel’s decision was Ms Cordeiro-Sorroche, but she did not attend the DMG meeting, although the letter recording the panel’s decision was sent out in her name.

[143]The Respondent relied on the judgment of Sam Trumble in support of its argument that what the Claimant did was serious and justified the termination of his Bank contract, but as stated above the Tribunal does not accept that Sam Trumble was a credible witness in relation to this and finds that the information she gave the panel about the Claimant was misleading and was affected by his protected disclosures.

[144]The Tribunal was troubled by the evidence given by Guy Dickson. In his witness statement he presented himself as being the person who decided to terminate the Claimant’s contract but when questioned about this presented it as being a joint decision.

[145]The Tribunal was concerned about the fact that a DMG was chosen as the appropriate vehicle for dealing with the matter. This appears to have been Sarah Dodds’ decision but there was no evidence about her reasons for this. Mr Dickson said that the DMG was used for “tricky cases”. However, the Respondent’s policy makes clear that DMG meetings are used for serios and urgent cases. There did not appear to be anything urgent in relation to the situation.

[146]Very brief minutes were supplied of what was apparently a 50 minute meeting. They filled approximately a page and cannot in any reasonable way be regarded as a true and accurate reflection of the discussion.

[147]In the minutes Guy Dickson is recorded as saying, “What’s our response to him? Needs to be we’ve heard your reflections, you’ve raised a number of concerns which we’ll continue to look into but in the meantime you’re not working again. You’ve mentioned adjustments and you haven’t identified any we could put in place or that would have affected what happened. Do we have any issues around the concerns he’s raised? We need to defend ourselves from a claim and do due diligence around the concern he’s raised. His professional conduct is a separate issue to the concern he’s raised. There’s nothing around the IV concerns that affects him bringing someone off the street and trying to administer medication. My instinct is to shut down quickly.”

[148]We also noted that in Guy Dickson’s cross-examination he referred to the DMG as a mechanism to resolve the problem and in his witness statement at para 12 stated that they wanted to “turn the tap off” as the volume of correspondence from the Claimant was quite difficult when they were so busy. In the Tribunal’s view the volume of correspondence from Claimant was not significantly excessive.

[149]Guy Dickson’s evidence appeared to the Tribunal to exhibit an uncaring attitude and effectively stated that the Claimant was viewed as a nuisance or a problem that they wanted to shut down as they were all so busy.

[150]We consider that the Respondent’s approach to the letter informing the Claimant of the decision to terminate his contract is emblematic of the Respondent’s approach to the case. It was written by a person who was not apparently the decision maker, Georgia Lidington, an HR adviser; was presented as being from somebody who had not taken part in the decision, namely Juliana Cordeiro-Sorroche; and was not approved by the apparent decision maker, Guy Dickson, before it was sent. The Respondent was attempting to obfuscate the process leading to the decision and the reasons for it, or, to put it more colloquially, “muddy the waters”, and the Tribunal draws an adverse inference from this.

[151]As such our conclusion is that the Claimant has shown a prima facie case that the DMG’s decision to terminate his contract was influenced by the protected disclosures he made. We are not satisfied that the Respondent has shown that the decision was not materially influenced by the protected disclosures. The DMG panel was clearly influenced by Sam Trumble’s negative report on the Claimant. However, we are also satisfied that all of the panel making the decision knew about the protected disclosures and that this materially influenced their decision to terminate the Claimant’s contract. As such this complaint is upheld. Direct Disability Discrimination

[152]The Tribunal dismissed the complaint in relation to the emails, as, for the reasons set out above in relation to the whistleblowing complaint, we are not satisfied that the Claimant has shown that he was subjected to detrimental treatment.

[153]In relation to the termination of the Claimant’s contract [para 5.1.2] the Claimant has to show that a non-disabled person would not have had their contract terminated in the same circumstances. No actual comparator is identified so the Claimant has to rely on a hypothetical comparator.

[154]Having considered the evidence the Tribunal concludes that the Claimant has shown a prima facie case that the decision to terminate his Bank contract was materially influenced by the protected characteristic of disability.

[155]Sam Trumble’s evidence was that the Claimant did not reflect on his conduct. This evidence was not accurate. She also stated that she did not believe that the Claimant was capable of reflecting on and modifying his conduct. In our view this was an assumption that was shared by the DMG. However, this conclusion was reached without any supporting evidence, in particular occupational health evidence.

[156]We are satisfied that Sam Trumble and the DMG panel were aware of the Claimant’s autism and dyslexia.

[157]As such we are satisfied that the burden shifts to the Respondent to show that the decision to terminate the Claimant’s contract was not materially influenced by the protected characteristic of disability. We conclude that the Respondent has not shown that the decision was not materially influenced by the Claimant’s disability and as such uphold the direct disability discrimination complaint in relation to the termination of his Bank contract. Discrimination Arising from Disability (s.15 EqA)

[158]The Respondent has conceded that it had knowledge of the Claimant’s disability. The complaint under s.15 EqA arises from the incident in November 2023, We accept that this was something arising from disability. We accept the Claimant’s evidence that because of his autism he was stressed and upset as a result of the sudden and unexpected change to his shift arrangements and that he displayed this when being informed about the shift change. As such this was something which arose from his disability.

[159]We don’t accept that the restriction which was imposed on the Claimant was a proportionate means of achieving a legitimate aim. If it was to ensure compliance with the Code of Conduct then the Respondent needed to ensure that the alleged behavior and the reasons for it was properly investigated in line with the principles in the Code and that the restriction was not imposed in an arbitrary manner. We find that there was not a proper investigation and the Respondent has not put forward evidence that the legitimate aim of ensuring Bank staff complied with the Code could not be attained by using a less discriminatory step, for example by having a meeting with the Claimant to explain why the conduct was not appropriate and what the consequence would be if it was repeated, or by taking into account the fact that the conduct arose from his disability.

[160]Furthermore, we have found that the restriction was materially influenced by the fact that the Claimant had made protected disclosures. As such it cannot amount to a proportionate means of achieving a legitimate aim. Reasonable adjustments

[161]The Respondent has conceded that it was aware of the Claimant’s disability at the material time. It does not concede that it knew or could reasonably have been expected to know that the Claimant was likely to be placed at a substantial disadvantage.

[162]The first PCP [para 7.3.1] is the requirement to undertake the work of a Bank registered nurse. We consider that the Claimant has shown that this PCP was applied to him.

[163]The second PCP [para 7.3.2] is the practice of moving bank staff to another part of hospital if considered necessary. Again, we find that this PCP was applied to the Claimant.

[164]The third PCP is the Respondent’s procedure for dealing with complaints against Bank staff. We find this was applied.

[165]In relation to the first PCP we find that the Claimant has not shown that this placed him at a substantial disadvantage. There appear to have been only two complaints about him, and we don’t consider that either could really be said to relate to the way he carried out his duties as a Bank nurse. There is no evidence that the Claimant struggled to carry out his tasks as a nurse by reason of his disability.

[166]We find that the second PCP placed the Claimant at a substantial disadvantage compared to a person who did not have the Claimant’s disability. Being moved at short notice caused the Claimant stress because it disrupted his planning and routine and this was worse for the Claimant by reason on his neurodivergent conditions than it would be for person without those conditions.

[167]We don’t find that the Claimant has shown that the third PCP placed him at a substantial disadvantage. He has not shown that he was unable to respond properly to the concerns raised about his conduct for reasons related to his disability or that the practice of imposing a restriction without an investigation impacted him more severely as a disabled worker than it would a worker who was not disabled.

[168]In relation to the complaint at para 7.4 based on alleged failure to provide an auxiliary aim, we find that the Claimant has not provided evidence that shows that the lack of an auxiliary aid, namely dictation or reading software, placed him at a substantial disadvantage in relation to note reading and reading compared to a non-disabled person.

[169]In relation to the second PCP we consider that the Respondent has shown that it did not or should not have known about the substantial disadvantage prior to the Claimant informing the Respondent of it on 20 November 2023. Thereafter the Respondent knew or should have known about the substantial disadvantage.

[170]Thereafter the Respondent made a reasonable adjustment by not allocating the Claimant to the AOA list. We don’t consider that there are any further reasonable adjustments which should have been made to address the PCP and the Claimant has not identified any further occasions when he was moved at short notice after 20 November 2023.

[171]Accordingly, the reasonable adjustments complaint is dismissed.

[172]The matter will now be listed for a further hearing to determine remedy in respect of the complaints which have been upheld. Approved by