Mr D Townsend v Torbay and South Devon NHS Foundation Trust: 1402397/2022
EMPLOYMENT TRIBUNALS
Case No 1402397/2022
Between
Ms C. Goodman (Counsel)ClaimantMr S. Way (Counsel)Respondent
Before
Employment Judge SmailMs C. Goodman (instructed by Counsel) for claimantMr S. Way (instructed by Counsel) for respondentDate 27 April 2023
JUDGMENT
[2]1. It is just and equitable to extend time for bringing the claims to the date of presentation of the claim in respect of all claims of disability discrimination. Accordingly, the claim proceeds to final hearing.
REASONS
[1]By a claim form presented on 28 July 2022 the Claimant claims disability discrimination. The EC notification was 19 May 2022 and the certificate 29 June 2022. The claimed disability relates to constant abdominal pain with spells of severe pain, sometimes daily. The Claimant was originally employed as an HCA (Healthcare Assistant) on Turner Ward in Torbay hospital. The discrimination claim relates to alleged failures to make reasonable adjustments in the form of providing information about and failing to secure redeployment.[2]There was a Preliminary Hearing before E.J. Bax on 1 November 2022. He listed the present hearing to deal with the question of time limits, if capable of determination at a preliminary hearing, and the Respondent’s application for strike out deposit. The Claimant conceded that there would need to be a just and equitable extension of time for the Tribunal to have jurisdiction in this matter. Accordingly, the time was taken to determine the matter of time limits. As it happened, much of the Respondent’s position on strike out/deposit also related to time limits.[3]E.J. Bax also identified the issues in the case. One of the claims for reasonable adjustments related to an alleged practice of not sending those seeking redeployment, job vacancy lists or alerting them to jobs as they arise. The Claimant confines the criticism to the period 6 October to 29 December 2021. The reasonable adjustment contended for was sending the Claimant, seeking redeployment, vacancy lists and job alerts. This is significant because the Claimant’s grievance dated 5 January 2022 was upheld by the Respondent on 1 July 2022 in connection with this argument.[4]On 7 November 2022, the Respondent conceded that the Claimant was disabled at all material times with an otherwise undiagnosed chronic pain condition. Relevant Chronology[5]The Claimant started as an HCA on Turner & Ricky Grant Wards, Torbay Hospital on 4 November 2013. He was employed to work 37.5 hours. He worked predominantly 11.5 hour night shifts. He was on sickness absence owing to abdominal pain between July 2020 and January 2021. Following a FIT note dated 18 January 2021 certifying fitness for a phased return to work, the Claimant was referred to Occupational Health. An OH report dated 25 January 2021 advised that the Claimant was fit to return to work with adjustment to hours and lifting obligations. A long-term absence review meeting was held on 29 January 2021 with Sara McMurray, the Claimant’s line manager which set out terms of a phased return as a reasonable adjustment. A period of sickness absence, annual leave and a Covid isolation recommendation followed.[6]A second referral to OH was made. Dr Emma McCollum reported on 7 April 2021. She recorded constant abdominal pain, which limits day to day activities at home. There were spells of severe pain, which can be daily. There were underlying mental health conditions, controlled with medication. She advised that redeployment into a secondary role be made, working approximately 20 hours a week.[7]There was a long-term absence review meeting on 8 July 2021 with Sister Sara McMurray. Intermittent abdominal pain was complained of. Mobility was affected. Help with housework was required. Dietician and gastroenterology appointments were awaited.[8]The Claimant stated he was not fit to start the redeployment process. He but was keen to start looking at paperwork. His union rep asked the Respondent to start looking to find a suitable redeployment position. She also asked to look at the possibility of ill health retirement in parallel. All options to be kept open.[9]On 2 September 2021 the Claimant’s union – the Royal College of Nursing – wrote to Ms McMurray chasing the possibilities(a) of alternative employment and(b) early ill health retirement. As to the former Ann-Marie Stanley of the union quoted the trust’s organisational change policy suggesting it was the individual’s line manager responsibility to identify alternative vacancies. Only if none were available should someone be on the redeployment register.[10]OH reported again on 10 September 2021. Constant abdominal pain was recorded. Spells of severe pain had lasted on average twice a week, lasting 5-6 hours. These are incapacitating. He can walk 50-100m on a good day, usually with a stick. He suffers fatigue on a variable level. He did not report difficulty with driving and continued to undertake short shifts for a food delivery service on an ad hoc basis. Underlying mental health conditions were controlled by medication. Return to his substantive contractual role was not possible. Redeployment should be explored. Sedentary work up to 20 hours a week. Owing to the frequency of incapacitating pain, fixed shifts were not suitable; flexible work was required, self-paced and not time-limited. Ill health retirement was an unlikely option because he was not permanently incapacitated from performing his role at the present time.[11]A long-term sickness review meeting was held on 29 September 2021. The redeployment process would start from 6 October 2021. Once a suitable post had been identified, a 4-week trial would take place, with view to permanent redeployment. The redeployment process would last for 12 weeks.[12]The Claimant, via the RCN, raised a grievance on 5 January 2022. The Claimant had been placed on the redeployment register on 6 October 2021 for 12 weeks and this was due to end on 29 December 2021. A series of observations were made. One was that the Claimant should have been sent vacancy bulletins during the redeployment period. Both the Claimant and the Union had identified potentially suitable jobs on NHS jobs which were not sent to the Claimant prior to being advertised. ‘We do not know how many jobs were potentially suitable for Daniel since Occupational Health advised redeployment’. Inadequate effort to find suitable alternative employment was alleged.[13]Occupational Health reported on 25 January 2021. There was still no diagnosis for the gastro-intestinal problem, but the condition was likely to be long-term. He was fit to return to work in an adjusted role: phased return; multiple short breaks; avoid heavy lifting/movement; colleagues to provide assistance.[14]There was a redeployment review meeting on 4 March 2022. The redeployment process was to be extended for a further 6 weeks up to 19 April 2022. The forms would be sent also for early ill health retirement. However, it was pointed out that an application for ill health retirement was inconsistent with being available for redeployment. If ill health retirement was pursued, then dismissal for incapability was a real possibility. As to redeployment: the union suggested Oncology Support Worker, Ophthalmology HCA, Phlebotomist. Sharon Reynolds of HR supported a trial for the Oncology support worker role.[15]As of 8 April 2022 his permanent redeployment on health grounds as an Oncology Support Worker was confirmed. As was discussed in the hearing, this represented something of a happy ending. The important role of Anne-Marie Stanley, the RCN rep, in achieving that result is clear from the papers.[16]On 1 July 2022, Alex Atkins, the Cancer Services Manager, provided a grievance outcome. It was fair for the Trust to consult OH with regard to suitability for a return to work, redeployment or otherwise. The grievance was partially upheld in that the organisational Change Policy was not followed in the grievance process: the Claimant when on the redeployment list was not informed of available jobs by the People Hub; the redeployment skills form was lost during the process; his request for consideration for ill health retirement was not considered in a timely manner. This first point was the point made by Anne-Marie Stanley in bringing the grievance.
THE LAW
[17]S.123 of the Equality Act 2013 provides Time limits (1) [Subject to section 140A and 140B] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.[18]It has often been said to be sensible to make reference to the Keeble factors [1997] IRLR 336 (EAT):(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had cooperated with any requests for information;(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.[19]It is also relevant to consider prospects of success.
DISCUSSION
[20]In this case, subject to the issue of time limits, the Claimant has good liability prospects of establishing that there was a failure to make reasonable adjustments in the form at least of providing to someone on the redeployment register details of available jobs. A grievance was upheld to that effect. Often when the Tribunal is considering a just and equitable extension of time, the prospects of liability are poor or uncertain. That is not the case here. It is strongly arguable.[21]As all the case relates to the delay in redeployment, I do not pick and choose between the various claims. It is sufficient for present purposes to identify that there is at least one argument with real prospects of success.[22]The period criticised is 6 October to 29 December 2021. The primary period of limitation would expire then on 28 March 2022. It might have been extended to 28 April 2022 had ACAS conciliation started within the primary period of limitation. A grievance was raised on 5 January 2022, within the primary period. There was a grievance meeting on 7 April 2022. The grievance outcome was 1 July 2022. The claim was brought on 28 July 2022, some 3 months after the expiry of the primary period of limitation that might have been extended by ACAS conciliation. The actual ACAS conciliation period was between 19 May 2022 and 29 June 2022. This was outside the primary period of limitation but before the grievance outcome.[23]As to the reasons for the delay in bringing the claim, I accept from the Claimant that he was reliant on the grievance process to address matters. I also accept that he was not entirely well. There were ongoing issues of chronic pain and mental health. He had consulted the RCN throughout. His RCN rep was a lay rep. The RCN had been very effective in achieving the redeployment, eventually. ACAS was approached late on 19 May 2022, but the grievance had not concluded. There was confusion about time limits. There was confusion about when to bring a claim to Tribunal when there was an ongoing grievance process.[24]There is no evidential prejudice to the Respondent at all. There was a comprehensive grievance which would be a rehearsal for the claim.[25]In all the circumstances, it is my judgment that it is just and equitable to extend time. I am significantly influenced by the fact that the grievance was upheld in the detail for which it was brought.[26]If liability is confirmed, then the Claimant deserves to be compensated for the delay in securing his redeployment. That said, that period is a modest one. Any compensation will also be modest. This case, one might have thought, is now easily capable of resolution out-of-court.[27]I have not determined the Respondent’s strike out/deposit applications. The above suggests they would fail. The Claimant brings a strongly arguable claim, supported in large part by the grievance outcome.
FINDINGS OF FACT
[28]A grievance was raised by the Claimant, represented by Mrs Stanley, in January 2022, after the expiry of the initial twelve weeks and in an effort - a successful one - to postpone the redeployment review meeting at which the Claimant might otherwise have been dismissed. Mr Atkins was instructed to consider that grievance. He produced a very thoughtful piece of work on 1 July 2022. Mr Atkins is the Cancer Services Manager. He rejected much of the grievance including the suggestion that the Claimant should have been redeployed into the Oncology job that was identified in July and we agree with him about that. He made important observations on the subsequent redeployment process, which we have just been considering.[29]He noted the concern in the grievance, which was that the Claimant had not been sent a vacancy bulletin, a number of jobs were identified by him and his union representative that were not alerted to him by the People Hub and some of those were held for less than the five days stated at paragraph 5.5 of the organisational change policy. “I have seen evidence that the HR advisors sent you jobs throughout the redeployment period, however, I accept that you were not sent the vacancy bulletin. During my investigation I have been advised by the People Hub team that this vacancy bulletin is not something that exists in the way it used to, as we now use a centralised NHS jobs website which is updated as soon as vacancies become available, and staff are able to subscribe to their own customisable job alerts by email [we understand that some search criteria and alerts can be put into the system so that jobs at relevant bands or part-time, etc., can be automatically referred when advertised]. The People Hub team also get alerted of new jobs that have recently been approved by the Trust vacancy panel before they go out to advert. Where possible these are sent to candidates before they are advertised but often the adverts go out very soon after being approved by the vacancy panel. However, these roles if considered suitable would still be shared with an individual on the redeployment register. The roles are reviewed and potentially held by the People Hub team are new roles that come about during the period of redeployment. Those that are already being advertised may have been approved prior to commencement of the redeployment and may not have been seen to be able to advise you of them. Therefore, it is recommended that you also review current vacancies being advertised in case there is something that is available that you feel is suitable. The HR advisor would then be able to explore these further for you. In the case of roles already advertised, it may not be possible to hold them for the requisite five days depending on where in the recruitment process they are. Hopefully an agreement can be reached on a suitable timeframe for you to review as well as supporting the recruiting manager in such cases. To resolve this matter I am recommending that the People Hub team review the appropriate section in the policy and that it is updated to reflect current practice. In addition, I will recommend that all staff placed on the redeployment register receive appropriate advice on how they will be advised of new vacancies and how to access advertised vacancies. Whilst there is an expectation of the individual on redeployment to actively participate in finding suitable alternative employment, I have seen evidence that a number of jobs were found by yourself and that you were not alerted to them by the People Hub, and that jobs were held for less than the stated five days. My investigation found that some of these oversights had come from a lack of understanding of the posts. I believe the main cause to be the high turnover of vacancies and expectation of recruiting managers to have these posts advertised and recruited to swiftly. This in turn creates pressure on the People Hub to act hastily and on occasion the expectations of the recruiting managers can be difficult to influence. In addition to the above updates to the policy, there are a number of other considerations that I will recommend in supporting all parties during the redeployment process as there has been variable implementation of this policy during your situation and has led to the policy not being adhered to fully. I will therefore recommend the following. 1. The organisational change policy should be reviewed to ensure that it provides adequate guidance to support the People Hub team members, managers and individuals being redeployed in overseeing the redeployment process. 2. The expectations of all other involved parties are noted in the OCP sections 12 – 16. However to embed the importance of these commitments this should be supported by a signed agreement as part of the commencement of redeployment. 3. Consideration of reviewing the attendance management policy to include clear guidelines for redeployment on the grounds of ill health. 4. The expectations of recruiting managers who are approached during the redeployment process should be reviewed to ensure that they understand the requirement that they need to cooperate fully with the redeployment process. 5. It should be assessed whether five days is still a suitable time to hold jobs to reduce delays to recruitment and what can be done to identify vacancies before they are advertised. As to this part of the grievance, I therefore partially uphold your complaint that due to out of date information in the organisational change policy the process set out in the policy was not followed. However, you were provided with details of a number of vacancies during your period of redeployment.”[30]Mr Byfield, for his three weeks, showed the exemplary practice that upon the weekly disclosure of the jobs that were available for recruitment, a HR advisor should filter those and suggest what might be appropriate. That puts entire responsibility for filtration on HR; there is not a system whether by customisable, alert or otherwise, for the individual redeployee to assess for him or herself the appropriateness of any position that is about to be advertised. This is a key period for the reasons that Mrs Reynolds explained. It is when that first job comes to HR’s attention as being in need of recruitment that there is a twenty-four hour period only for HR to step in and protect fully the redeployee’s interest.[31]Regrettably Mr Byfield left three weeks or so into this key twelve-week period. The Claimant graciously accepts that between 6 October and 4 November he has no criticism of what HR did. Between 5 November and 23 November, a period of two and a half weeks, there was no-one looking on his behalf at the jobs that come out on Wednesdays. That was a period when his interest was not being protected at all. For the remaining five and a half weeks of the redeployment period he in theory had Mrs Reynolds who had this obligation thrust upon her to do her best between 23 November and 29 December. It is significant that over this period, as Mr Atkins acknowledges, that it was the Claimant and the union representative who were really identifying the jobs not from the vacancy panel list - but from the advertised jobs - as to what might be appropriate for redeployment. There was one job that came out after Mr Byfield left which would be a strong contender for a redeployment consideration - a doctor’s assistant role - but that was missed.[32]Mrs Reynolds only put forward one potential recommendation, Community Phlebotomist part-time, but on further exploration for reasons we do not know that role was made full-time. No roles with any degree of likelihood of success were suggested to the Claimant following Mr Byfield’s departure. Mr Byfield had made some suggestions; he was doing his best.[43]It is the Respondent’s responsibility to make sure that someone in HR was effectively monitoring the jobs that the recruitment panel put to them on a Wednesday. It has been explained to us by Mrs Reynolds that often if it is received on a Wednesday, it is late in the day and often it can be Thursday morning when the list comes out. This very materially disadvantaged the Claimant because, through no fault of her own, Mrs Reynolds was part-time Monday, Tuesday and Wednesday. The key period for acting was of course Thursday - that is the twenty-four hours after the jobs come out. The suggestion that all could be picked up on a Monday does not work because for all the information we have seen that first twenty-four hours is a crucial period. For over two thirds of the twelve week period it seems that the Claimant’s interests were not being effectively served by Human Resources. Anne-Marie Stanley 33. It seems to us highly likely that the reason the Claimant was not dismissed was because of the intervention of his union representative. It is not often the Tribunal sees a union representative act with great effect but we acknowledge the service that Anne-Marie Stanley paid to the Claimant in protecting his interests. Her grievance meant that the final redeployment review meeting was put back from January to March. At the revised meeting on 4 March a cursory glance by her at the job adverts discovered three potential jobs that the Claimant might have secured, one of which was the job he is presently doing, to which he was rapidly redeployed after the meeting. 34. It is right that the Respondent at that point extended by six weeks the twelve-week period. We have seen notes for that meeting where the Claimant’s dismissal was at the very least a distinct possibility but following the representations made by Ms Stanley the period was extended by six weeks and very happily - the Employment Tribunals do not always see happy endings - more often than not they deal with loss of employment - but in this event, very happily, the Claimant was redeployed and he has held this job down. We acknowledge that the Respondent did redeploy; we acknowledge also the very significant role Anne-Marie Stanley, RCN representative played. CONCLUSIONS 35. There were plainly significant problems with this redeployment process. We were disappointed to learn that notwithstanding the very thoughtful contributions to the internal debate made by Mr Atkins, his recommendations have not been followed up. That is a matter of significant disappointment to this Employment Tribunal. 36. At the end of the day, disability discrimination and reasonable adjustments can be a very technical matter and we have to do our best to translate the theory into practice and for a while in our deliberations we wondered in reality whether this was a case of failure to comply with policy and whether that meant that under Nottingham City Transport Limited v Harvey 2012 UKEAT/0032/12 (a decision of the Tribunal chaired by Mr Justice Langstaff, then President, on 5 October 2012) that the Claimant could not argue that there was a PCP. In that case the Employment Tribunal had taken as a PCP an extant conduct policy and had held that there was a breach of the PCP in a one-off application of that policy, which also resulted in there being an unfair dismissal on at least procedural grounds. Mr Way in his submissions says a breach of a policy cannot be a PCP. The PCP is the policy, not the one-off breach. 37. Ours is a different case in principle from Nottingham City Transport Limited v Harvey. Our case does not involve a breach of an extant policy; the policy, for the reasons given to us both by Mrs Reynolds and Mr Atkins in his grievance outcome, was not the policy that was followed. It is defunct and we have to look at what the actual practice was in the relevant period - the twelve-week redeployment period. In the period 5 November – 29 December 2021, the Respondent had mislaid the redeployment form, which the Claimant had filled in. That said, the occupational health reports would have told them what they needed to look for. We also note that between 2 – 9 December Mrs Reynolds was off work whether on annual leave or illness. The Respondent HR division had not put into place a system effectively of monitoring the Wednesday vacancies, action in respect of which needed to take place on a Thursday on the Claimant’s behalf. 38. Ms Goodman submitted to us at the outset of her submissions that the real reason the Claimant brings this case is because he wants it acknowledged that during this process he was let down. Although as I say we pay tribute to the Respondent for redeployment, at the end of the day this Claimant came close to being dismissed for failures in the redeployment process. He has proved his point in that regard. 39. There was a practice, which amounts to a PCP, between 5 November and 29 December, whereby the Respondent did not routinely check the vacancy list as sent to them by the vacancy panel and did not routinely alert the Claimant to any jobs that were available; and of course they did not send to him electronically or otherwise, whether customised or otherwise, the list that they got from the vacancy panel and to that extent we find, that the PCP set out at issue 3.2.4 is made out in the way that we phrase it. The PCP pleaded there in the issues is the practice of not sending those seeking redeployment job vacancy lists or alerting them to jobs as they arise. The Claimant says this relates to the period 6 October – 29 December 2021. The practice of not doing this routinely related to what we now know is the internal process as applied: the weekly vacancy list going to HR, HR having twentyfour hours (in practice the Thursday) to hold the job to prevent them being advertised. That was the relevant practice, failure to do which routinely amounts to a PCP. It is not a breach of policy, it is not Nottingham City Transport v Harvey because there was no extant policy, there was a historic policy that had been written down but was defunct as acknowledged by all managers concerned. 39. Did that put the Claimant to a substantial disadvantage? We find on the balance of probability that for anyone on Mrs Reynolds’ redeployment list bearing in mind she worked Monday – Wednesday, it did. Either it did apply to anyone else on that list or would have applied to anyone who would have been on that list had there been more redeployees. There was a failure by the Respondent to monitor those jobs on a Thursday when they needed to act. This was a practice which did not relate solely to the Claimant. It did or would have related to others on Mrs Reynolds redeployment list. Was he substantially disadvantaged? Given his disability and the extent of it, yes. 40. This is a very unpleasant condition; it is severely restricting of what the Claimant can or cannot do. There are only very few jobs that he would be able to do - 20 hours, band 2, may be band 3 they would have to be sedentary, non-clinical. For him to lose the advantage of having an effective HR support Wednesday – Thursday was more than a minimal or more than a trivial disadvantage and we see that from the fact that only one job was proposed to him by Mrs Reynolds. We see that he came to the end of that first period of twelve weeks and was very close to having been dismissed, and the reason he was not, was down to the actions of his union representative. 40. In summary on liability, we find that PCP 2 is made out in the sense that it was twelve weeks which is the default position. PCP 3, we reject – it was particular to the Claimant on this occasion. Was he put at a substantial disadvantage? Someone as disabled as the Claimant will be more than minimally disadvantaged by a defined period to obtain redeployment. That said, we do not find that the Respondent was required to extend the 12 weeks necessarily. Twelve weeks ordinarily is reasonable, we do not make criticism of the twelve weeks as such and as a matter of fact in this case it was extended. We reject the contention that the redeployment process should have started any earlier than it did and indeed had it started earlier he had not been signed back fit to work. The premise of the Claimant’s argument here was that the GP upon request could be persuaded to send in, at will, a sick note ticking fit to return to work. We are not persuaded of that. We have read the descriptions of this illness and this disability. We well understand that the Claimant had been off sick for an extended period and we well understand the Respondent’s requirements that there be a fit note for amended duties, and occupational health giving the green light to returning. The Respondent had obligations themselves also to the Claimant. 41. Would the Respondent reasonably be expected to know the Claimant was likely to be placed at a disadvantage? Yes of course. They knew the nature of his disability. They knew he had only twelve weeks to find work and they knew he was at risk of dismissal. 42. So PCPs 1, 2 and the rephrased 4 are made out. That latter PCP is that for those on Mrs Reynolds list there was no one in position to freeze the jobs within the requisite 24 hours (normally a Thursday) which were communicated as available late on Wednesday or early Thursday. This is because Mrs Reynolds worked Monday to Wednesday only, as were her agreed days. 43. Indeed, the reasonable adjustment which addresses PCP 4 also flows from PCPs 1 and 2. He was more than minimally disadvantaged by both because with his disability he was more greatly exposed to the risk of dismissal. In some ways the suggested PCP 4 is in truth the reasonable adjustment for PCPs 1 and 2. What is the PCP and what is the reasonable adjustment are often analytically challenging issues. 41. As regards to the adjustments contended for: we will invite further submission on the precise definition. We reject3.5.1 the submission that the process should have started in July.3.5.2 is unnecessary in that ultimately the period was extended.3.5.3 that the first OH report be used. We reject that; it was entirely reasonable for Ms McMurray to require a further one.3.5.4 sending the Claimant vacancy lists and job alerts between 6 October – 29 December 2021. That needs to be reformulated. Based upon the practice that we now know, what the Respondent failed to do was to have someone from HR on the Claimant’s case on the Thursday on the twenty-four hours necessary to act promptly and to alert him of any suitable jobs. That did not happen as it did happen with Mr Byfield. It did not happen after 4 November. 42. In the event our conclusion on liability, then, is that contrary to section 20(3) of the Equality Act 2010, the Respondent failed to make reasonable adjustments during the Claimant’s redeployment period, specifically 5 November 2021 to 29 December 2021, by Human Resources failing to support him fully when the weekly list of jobs approved for recruitment was sent by the Vacancy Panel to Human Resources on Wednesdays or Thursdays, by failing routinely to alert him of potentially suitable roles either within the 24 hour period set aside for preventing advertisement of the roles, or at all.
CONCLUSIONS
[44]One particular job has been identified. We will discuss shortly whether it is sensible to consider identifiable economic loss in respect of that job or not. We certainly in terms of compensation will consider submissions on what any appropriate amount of injury to feelings should be. We have no doubt that during that period of redeployment after Mr Byfield’s departure there would be concern on the part of the Claimant that the redeployment was going nowhere and he was going to lose his job. Injury to Feelings[45]Turning, then, to the question of injury to feelings. The Claimant was in any event in a position of some vulnerability whilst having to be redeployed. He was not able to return to his original job. Going through a redeployment process is in any event a stressful position and we accept what has been said on his behalf that bearing in mind his condition, his vulnerability to being dismissed for incapability, it was very important to him in those circumstances that his opportunity to be redeployed in a large public employer such as this in a field with which he was familiar be taken seriously. It was extremely important that that be supported appropriately and he was not for two thirds of that time. That caused unnecessary stress and anxiety. That was eight weeks of not being properly supported. That had on-going effects beyond those eight weeks up until the point when redeployment did start happening productively. On the facts of this case that doubled the length of time to four months.[46]We think that the injury to feelings reflective of the experience of this discrimination is really bang on the border between the lower and the middle brackets. £4,500 submitted by the Respondent is too low. We think it is on the border, £9,900. Interest needs to be added to that. Case Number: 1402397/2022 EMPLOYMENT TRIBUNALS BETWEEN Claimant and Respondent Mr D. Townsend Torbay and South Devon NHS Foundation Trust Held at: Exeter On: 24-27 April 2023 Before: Employment Judge Smail Ms C. Lloyd-Jennings Ms E. Smillie Appearances Claimant: Ms C. Goodman (Counsel) Respondent: Mr S. Way (Counsel) In addition to the order made on 27 April 2023 to the effect that by 19 May 2023, the Respondent must pay the Claimant compensation for injury to feelings in the sum, inclusive of interest, of £11,069.56, the parties have agreed the following, which agreement the Tribunal is happy to endorse: CONSENT REMEDY JUDGMENT Recommendations Within 3 months of receiving this order, the Respondent shall review its existing policies on the redeployment of employees who are unable to perform the role they have been employed to do owing to ill health. Within 6 months of receiving this order, the Respondent shall draft an updated policy on the redeployment of employees who are unable to perform the role they have been employed to do owing to ill health (“the New Redeployment Policy”). In particular, the New Redeployment Policy should:2.1 Provide that employees’ line managers should attempt to re-deploy them either temporarily or permanently within their Directorate within 4 weeks of their first being confirmed either by their GP or by OH to be capable of some work; Case Number: 1402397/20222.2 Allow for a minimum ill-health re-deployment period of 14 weeks, with the express discretion of the Respondent to extend the redeployment period in appropriate circumstances;2.3 Provide that during the ill-health re-deployment period, the employee’s contact(s) in HR must look out for jobs which meet the employee’s needs and, where such jobs are considered suitable, hold them for the employee’s consideration for a minimum of 5 calendar days before they are released to general advert. Within 6 months of receiving this order, the Respondent should amend its Grievance Policy to include a review mechanism for the purpose of ensuring that any recommendations made are successfully implemented. In relation to paragraphs Error! Reference source not found. and Error! Reference source not found. above, both parties agree and acknowledge that the successful implementation of such updated policies will be dependent upon negotiation and agreement with the relevant trade unions. In this regard, the Respondent undertakes to use its best endeavours to negotiate with the trade unions with the aim of reaching agreement. Within 6 months of receiving this order the Respondent should provide training to its HR professionals on the application and implementation of the New Redeployment Policy and supporting colleagues through ill-health redeployment. This will include training on the duties of the employer towards disabled staff under the Equality Act 2010. Loss of earnings The Respondent must pay the Claimant £900 loss of earnings within 14 days of this Remedy Judgment being sent to the parties if not already paid.