Mrs T Kenneford v South Western Ambulance Service NHS Trust: 1402794/2024
JUDGMENT
[1]The Claimant’s application to add claims of failure to make reasonable adjustments fails. The allegations are removed from the list of issues.[2]Further, there is no permission to make the allegation that the failure to make reasonable adjustments amounted to a breach of contract entitling the Claimant to claim constructive dismissal.[3]The claim of disability discrimination is struck out. It has no reasonable prospects of success.REASONS
[1]In her ET1 dated 21 November 2024 the Claimant ticked disability discrimination but provided no particulars. At a Preliminary Hearing before E.J. Volkmer on 7 March 2025 the Claimant persuaded the Judge to incorporate the following into the list of issues: A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:4.2.1 requirement to take written exams; and4.2.2 a requirement to complete patient paperwork by typing on a handheld device. 4.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that;4.3.1 the Claimant struggles to read black printing on white paper;4.3.2 the Claimant takes a lot longer to read/write and process words;4.3.3 the Claimant muddles words when writing. 4.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage? 4.5 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests:4.5.1 using white printing on black paper;4.5.2 allowing the Claimant extra time in exams;4.5.3 allowing the Claimant to undertake exams verbally;4.5.4 providing the Claimant with a dictaphone and allowing her to dictate patient notes. 4.6 Was it reasonable for the Respondent to have to take those steps and when? The Claimant alleges she was sent to occupational health who provided advice to the Respondent in 2020. 4.7 Did the Respondent fail to take those steps?[2]The failure to make reasonable adjustments was said also to be a ground for claiming constructive dismissal.[3]Judge Volkmer was subsequently persuaded that there needed to be a full amendment application before those issues could go forward. That was listed before me on 20 August 2025. I made the following case management order, having heard submissions from the parties:[1]Judgment on the Claimant’s application to amend in claims of failure to make reasonable adjustments is reserved. Employment Judge Smail will make the decision on the papers once he has received the documents identified in the paragraph below. Broadly speaking, if the Claimant did not in 2024 raise failure to make adjustments of the sort set out in the list of issues, her amendment is likely to be refused. Conversely, if she did, then the amendment is likely to be granted. If refused, the time for the December hearing will be reduced to 3 days.[2]The Respondent must send to the Tribunal for the attention of Employment Judge Smail and to the Claimant within 21 days:(a) The Claimant’s letter of resignation;(b) The Claimant’s grievance of July 2024;(c) Any email sent by the Claimant in 2024 referring to ‘reasonable adjustment’ or ‘reasonable adjustments’.[3]If the Claimant has any copy of an email sent by her in 2024 referring to ‘reasonable adjustment’ or ‘reasonable adjustments’, she must send that to the Respondent and the Tribunal within 14 days.[4]The Claimant sent me documentation directly. The Respondent’s documentation was not referred to me from the Bristol office until 2 days ago.[5]The Claimant’s resignation did not claim any constructive dismissal based on any breach of contract. It gave notice of resignation to be worked and thanked the Respondent. The grievance did not allege a failure to make reasonable adjustments. None of the 2024 emails asked for reasonable adjustments as alleged in the proposed list of issues or claimed a failure to make reasonable adjustments. There were references to assessments and the Claimant not passing them but the reason for this was not asserted by the Claimant to be a failure to make reasonable adjustments in respect of the assessments.[6]The Respondent has known from June 2021 that the Claimant was disabled with dyslexia and dyspraxia. There is reference to the Claimant sharing the report that diagnosed this with her line manager in 2024. Nowhere, however, was there any raising by the Claimant of a failure to make reasonable adjustments.[7]The Claimant was off work in 2024; but with a shoulder injury nothing to do with the disabilities relied upon.[8]The Claimant’s pleaded case is to the effect that she was bullied by colleagues in the aftermath of a tragic suicide in 2019 by a colleague with whom she had a relationship. They blamed her, she says, for the suicide. One of the criticising colleagues became head of assessment. The Claimant says she became the subject of undue scrutiny as part of the bullying. So, there is a clear pleaded case of constructive dismissal, whether right or wrong. Failure to make reasonable adjustments, however, was not a live issue in 2024.[9]Accordingly, as it was not a live issue, I exercise my discretion not to allow the amendment. It prejudices the Respondent to have to deal with a claim in relation to which there was no contemporary evidence. It does seem to me that this claim is an afterthought. The balance of prejudice lies in the Respondent’s favour[10]The Claimant did tick the disability discrimination box. The claim was originally unparticularised and was then sought to be particularised with allegations for which there is no contemporary evidential support. I strike the claim out. It has no reasonable prospects of success.