Mrs D Phillips v Aneurin Bevan University Local Health Board: 1601375/2022

EMPLOYMENT TRIBUNALS

Case No 1601375/2022

Between

Mrs D PhillipsClaimant

Aneurin Bevan University Local Health BoardRespondent

Before

Employment Judge Vernon

In person for claimant

Mr G Graham (instructed by Counsel) for respondent

Date 17 February 2025

REASONS

Introduction

[1]This is the Judgment of the Tribunal in respect of the issue of disability. I am dealing today with a Preliminary Hearing that has been listed to consider a number of issues in this case but primarily to resolve the issue of disability, in other words whether the Claimant was a disabled person within the meaning of the Equality Act 2010 at the relevant times.

[2]To provide some context I will set out briefly what the claim is about and how it has got to the stage it has got to.

[3]The Claimant presented her ET1 claim form on 9 November 2022. The claim form indicated that predominantly the complaints being raised by the Claimant were of a discrimination nature and reliant upon disability as being the protected characteristic.

[4]The claim form also indicated that complaints were being made about holiday pay and also about deductions from wages. Those aspects of the claim are not the focus of today’s hearing.

[5]The Respondent thereafter filed an ET3 Response indicating that all of the Claimant’s complaints were denied.

[6]A Preliminary Hearing took place before Employment Judge Povey on 21 February 2023. He set out in his record of that hearing (in the case summary) some information about what the claim was about in general terms and then sought to distill the various complaints into identifiable legal causes of action that the Employment Tribunal could deal with. He identified the following causes of action:6.1 direct disability discrimination;

6.2 discrimination arising from disability;

6.3 a failure to make reasonable adjustments;

6.4 victimisation under the Equality Act 2010;

6.5 the Holiday Pay complaint; and

6.6 the Wages Act complaint.

[7]Some of the specific allegations that he referred to within the List of Issues he created were undated and others were said to be ongoing acts. Other issues were identified including the issue of time limits and the Tribunal’s jurisdiction to deal with the complaints in light of any such relevant time limits.

[8]A further Preliminary Hearing then took place before Employment Judge Sharp on 3 May 2023. During that Preliminary Hearing a number of new aspects were identified of the legal causes of action being pursued. New Particulars were listed within the List of Issues of the existing legal complaints.

[9]An Order was made by Employment Judge Sharp requiring an application to Amend to be made by the Claimant and for that Amendment Application to be considered, if time allowed, at this Preliminary Hearing. Although that was said to be a secondary issue for today, with the agreement of the parties I in fact dealt with the Application to Amend at the outset of today’s hearing. The Application was not opposed by the Respondent and therefore was granted subject to the Respondent having reserved the right to continue to argue that some (or all) of the Claimant’s allegations are out of time and should therefore not be considered by the Tribunal. That is a matter to be left to be determined at any Final Hearing.

[10]The conclusion, as a result of that Application to Amend being granted, is that the period of time during which the Claimant’s allegations of discrimination are said to have occurred covers a period between February 2021 and the date on which she submitted the ET1 Claim Form to the Tribunal being, I think, 9 November 2022. It is important to bear those dates in mind because the question of whether the Claimant was a disabled person for the purposes of the Act is something to be looked at as at the date of any alleged discriminatory act or omission and therefore the focus of the Tribunal today must be on that period of time.

[11]It is next necessary to set out some legal principles to be applied. The first legal principle is that the Claimant brings a complaint of disability discrimination in one or more forms. In order for those claims to be successful it is necessary for the Claimant to establish that she is a disabled person within the meaning of the Act. In other words, the burden of proof on this issue rests upon the Claimant and it is for her to establish (on the balance of probabilities) that she satisfies the definition within the Act.

[12]Moving on then to the definition in the Act, the relevant starting point is Section 6 of the Equality Act 2010. That section says this: “a person has a disability if that person has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on that person’s ability to carry out normal day to day activities”

[13]It is clear from that Section that what the Tribunal has to be satisfied of is that there is a) either a physical or a mental impairment, b) that that impairment has an effect on the Claimant’s ability to carry out day to day activities and c) that that effect is both substantial and long term.

[14]Schedule 1 to the 2010 Act then provides further assistance, at paragraph 2 of Schedule 1 which is headed long term effects. It says this, “the effect of an impairment is long term if it has lasted for at least 12 months, it is likely to last for at least 12 months or it is likely to last for the rest of the life of the person affected.”

[15]For the purpose of determining whether an effect is substantial or not it must be noted that substantial is defined within the Act in Section 212(1) and substantial for the purposes of the Act means “more than minor or trivial”.

[16]Those provisions really set out the basic statutory framework which I have to apply in dealing with the issue I am dealing with today.

[17]Two further matters then are relied upon by the Respondent as set out by Mr Graham during submissions. The first is some relevant paragraphs from the Guidance on Disability issued by the Secretary of State in 2011. I note from reading the Guidance that any relevant part of that Guidance must be taken into account by the Tribunal when determining the question of disability. I will return to that issue at the relevant point later in this Judgment. Secondly, the Respondent also has referred me to the Authority of J -v- DLA Piper

[2010] ICR 1052

, EAT. Again, when relevant I will return to that later.

[18]The conditions or impairments that are relied on as disabilities in this case by the Claimant are these:18.1 Dermatitis;

18.2 stress at work.

[19]It seems to me that those conditions are relied upon by the Claimant as separate conditions. One is a physical condition; the other a mental condition. They give rise to distinct issues and therefore, in my judgment, must be looked at separately. Dermatitis

[20]I will deal firstly with the issue of dermatitis and whether or not the Claimant has established that that is a disability that she suffered with at the relevant time for the purposes of this claim.

[21]The evidence before me on this issue comprises the Claimant’s medical records, various photographs and the Claimant’s impact statements. I should also say that there are two documents that have been provided by the Claimant which purport to be impact statements; one is within the document bundle for today and one is not but they essentially say more or less the same things in respect of both this condition and also the stress at work condition. I have also had oral evidence from the Claimant today and she has been the subject of cross-examination from Mr Graham.

[22]By way of summary and to provide again some context to the issue of the dermatitis, on the evidence before me the dermatitis complained of is an allergic reaction that the Claimant has sustained which has affected her hands following (initially) her use of latex gloves at work in 2016. Her evidence to me was clear that that is the first time at which she experienced any difficulty and that was the cause of it.

[23]Between 2016 and 2021 she then used vinyl gloves at work and again on the basis of her evidence no real issues arose at all during that 5-year period. It would appear that there was no similar issue with the use of vinyl gloves and no ongoing dermatitis or other irritation of the skin.

[24]In 2021, advice was then given to the effect that the Claimant could not continue to use vinyl gloves at work and she was therefore required to trial various other types of gloves in order that she could continue to work. In doing so, she again suffered a reaction to one or more of the gloves that she was required to try.

[25]In general terms, the nature of the reaction is shown in a number of ways on the evidence before me as being redness, scaliness, itchiness and broken skin to the hands. There is also some evidence of inflammation of the skin on the hands.

[26]There are a number of mentions made of issues with the Claimant’s hands, for example, in her medical records in April 2021, May 2021, June 2021 and also in November 2021. The effect or the extent of the issue with the hands on those occasions varies from time to time.

[27]The photographs that I have been provided with also assist with the extent of the issue and again show that the irritation suffered to the Claimant’s hands is variable but, at its worst, involves redness, inflammation and broken skin to the Claimant’s hands.

[28]I am satisfied that those issues with the Claimant’s hands amount to a physical impairment. They are a reaction or dermatitis (as described) to the skin on her hands resulting in redness, scaliness, itchiness, broken skin and inflammation.

[29]The real issue in regard to the dermatitis condition in this case, and as to whether or not it is a disability within the meaning of the Act, rests upon the effects of that physical impairment and whether or not those effects cause a substantial adverse effect on the Claimant’s ability to carry out day to day activities.

[30]The Claimant’s evidence on these issues is really encompassed in the two impact statements she has provided. In those documents she describes her hands becoming red, itchy and sore if she comes into contact for example with washing up liquid. She indicates that she can only use certain handwashes, must avoid certain shampoos and body washes and cleaning products and also has difficulties caused when she comes into contact with certain food types including raw chicken, potatoes and tomatoes.

[31]It must also be noted from her evidence, and from the other documentary evidence, that those issues appear to be capable of being either ameliorated or removed entirely by taking certain measures. Those measures basically comprise wearing some type of covering on the hands of a non-allergenic type. There are two types of hand covering that have been referred to on the evidence before me. The first is vinyl gloves; on the Claimant’s evidence she used those between 2015 and 2021 and suffered no adverse reaction to her hands whatsoever. Secondly, within her medical records, in July 2022 there is reference to the Claimant having used cotton gloves underneath rubber gloves at home and again suffering no adverse reaction as a result.

[32]On the basis of all of that evidence I am satisfied that the Claimant has shown that there is some effect upon her ability to do day to day activities that is caused by the reaction to her skin, but the question here, and the question which I must ask myself under the Act is, is that a substantial adverse effect on her ability.

[33]The Respondents argument is that it is not and primarily Mr Graham has referred me to the relevant Guidance and, in particular, to paragraph (b)(vii) of that Guidance. That paragraph comes under a heading “Effects of Behaviour” and says this, “account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example, by using a coping or avoidance strategy to prevent or reduce the effects of an impairment on normal day to day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy there is still an adverse effect on the carrying out of normal day to day activities”.

[34]The question therefore that I think I need to ask myself is this: can the Claimant reasonably be expected to make an adjustment to reduce or remove the effect that otherwise would be caused to her day-to-day activities by the irritation to her skin.

[35]In my judgment, the answer to that question is that yes, she can reasonably be expected to make those adjustments by using hand coverings.

[36]The reasons I come to that conclusion are these:36.1 the use of those gloves is a relatively simple and non-onerous requirement;

36.2 the use of gloves is a step which she has already taken on the basis of her own evidence and the evidence set out in the medical records;

36.3 the wearing of vinyl gloves in particular was something that she was able to do for a period of 5 years between 2016 and 2021.

[37]As I say, in my judgment, they are relatively simple steps that in fact result in a complete removal of the impact of irritation on the Claimant’s hands.

[38]Although there is evidence before me that the Claimant has had to use or avoid using certain products as a result of the irritation to her hands, that is either not an effect on her ability to do day to day activities, or if it is, there are again mechanisms in place to allow her to reduce or remove the issue.

[39]In those circumstances the decision I have come to on this aspect of the case is that the Claimant has not established that the dermatitis has a substantial adverse effect on her ability to do day to day activities and therefore the definition of disability within the Act is not made out in respect of the dermatitis condition.

[40]Therefore, dermatitis is not a disability that the Claimant suffered with for the purposes of her claim. Stress at work

[41]Moving on then to deal with the other condition relied upon which is described as being work related stress.

[42]I remind myself again that the relevant time period in question is the period February 2021 to November 2022; that is the widest possible timeframe given the basis on which the Claimant puts her case.

[43]The first question I have asked myself is this: does the Claimant suffer from work related stress (given that that is the condition that she points to)?

[44]There is clear reference to that condition throughout the Claimant’s medical records from February 2021 through until late 2022. There are also entries within her medical records revealing that on several occasions throughout that period Fit Notes have been issued by the doctor indicating that the Claimant is unfit for work as a result of work-related stress.

[45]The Respondent says that, notwithstanding that, work-related stress is not a disability for the purposes of the 2010 Act. Mr Graham has referred me to the Authority of J -v- DLA Piper.

[46]I have considered the judgment in that case and considered it carefully in the paragraphs that underpin the argument that Mr Graham has made to me. It is right to say that in that case the Court drew a distinction between mental illness on the one hand, for example clinical depression which is an impairment under the Act, and on the other hand a reaction to adverse life events such as problems at work which it is said can on occasion not amount to a mental condition.

[47]It was also observed that that distinction between mental illness and a reaction to adverse life events is a distinction routinely made by clinicians.

[48]On that basis the Respondent argues that the Claimant here does not have a mental impairment within the meaning of the Equality Act and therefore is not a disabled person by reason of any such mental impairment.

[49]In paragraph 40 of the Judgment of the Tribunal in J -v- DLA Piper the Court said this (in paragraph 40(ii)): “in reaching those conclusions the Tribunal should not proceed by rigid consecutive stages, specifically in cases where there may be a dispute about the existence of an impairment it will make sense for the reasons given in paragraph 38 above to start by making findings about whether the Claimant’s ability to carry out normal day to day activities is adversely affected on a long term basis and to consider the question of impairment in the light of those findings”.

[50]In this case the Claimant has given evidence to me both in terms of her written evidence and in her oral evidence as to effects on her ability to do day to day activities which, in my judgment, is significant. She has described being unable at times to leave the house, she has described being unable to socialise with others, she has indicated that on numerous occasions her sleep has been affected as has her ability to concentrate. They are all effects on her ability to carry out day to day activities which are adverse and which are substantial.

[51]The Respondent also then points to an entry within the Claimant’s medical records specifically in July 2022 which appears at page 245 of the bundle. That is an entry from 20 July 2022 and the relevant part of the entry relied upon says this: “spoke to patient, ongoing grievance process with work, states intimidation from Line Manager but Head of Nursing more supportive, wants resolution of process, feels Occ Health haven’t done anything to find hypoallergenic gloves, insists can wear vinyl gloves but boss couldn’t/wouldn’t supply them through COVID, doesn’t feel would want to return to this role given stress and breakdown of relationship, largely ok in self rest of time, gets upset more easily and dislikes answering phone in case it is Line Manager calling.”

[52]Whilst I accept that there appears to be some conflict between that entry and the Claimant’s evidence both in written and oral form, in my judgment the entry is indicative of a period where the symptoms may well have been less troublesome to the Claimant. However, I also note that both before and after that entry, and in fact at the same time, the symptoms were obviously sufficiently significant for the Claimant to be signed as being unfit for work as a result of stress at work.

[53]I also place significant weight upon the evidence which Mrs Phillips has given me, which I found to be compelling evidence, as to the impact that this condition has had upon her.

[54]Therefore, I have concluded that the effects of work-related stress upon the Claimant’s ability to carry out day to day activities are substantial adverse effects.

[55]I also accept and find that those have been issues for her since the early part of 2021 and have continued thereafter, including throughout the duration of the period that she relies upon for the purposes of her claim.

[56]Turning again back to the Judgment in the case of J -v- DLA Piper I should also note that in paragraph 42 of that Judgment the EAT said this, after setting out the distinction to be drawn between mental illness on the one hand and other non-mental illnesses on the other: “fortunately however we would not expect those difficulties often to cause a real problem in the context of the claim under the Act. This is because of the long-term effect requirement. If as we recommend at paragraph 42 above a Tribunal starts by considering the adverse effect issue and finds that the Claimant’s ability to carry out normal day to day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more it would in most cases be likely to conclude that he or she was indeed suffering clinical depression rather than simply a reaction to adverse circumstances. It is a common sense observation that such reactions are not normally long lived.”

[57]It seems to me that there is no requirement for there to be a formal diagnosis of a mental illness in order for the Tribunal to be satisfied that there is a mental impairment causing a substantial adverse effect on a Claimant’s ability to do day to day activities.

[58]On the basis of my findings this Claimant has suffered those effects on her abilities (which are substantial) for a prolonged period of time and for more than 12 months.

[59]In my judgment, the issue of impairment must be seen in that context and even though there is no formal diagnosis here of any medical condition I am satisfied that, given the other findings I have made, I can also make a finding that that is as a result of a mental impairment.

[60]For those reasons the conclusion I have reached is that on the issue of work-related stress I am persuaded that the Claimant has established that that is a disability for the purposes of the Equality Act 2010 and for the purposes of this claim.

[61]Those are my findings, conclusions and my reasons.

[1]This is a claim for disability discrimination arising out of the Claimant not being provided with suitable PPE in the form of gloves from early 2021 onwards. The Claimant claims discrimination arising from disability, that there was a failure to make reasonable adjustments and for consequential loss of wages as a result of her being off work on reduced pay.

[2]ACAS conciliation took place between 22nd September 2022 and 3rd November 2022. The Claim was presented to the tribunal on 9th November 2022.

Procedure

[3]In forming our view, the Tribunal had benefit of sight of a bundle running to 814 pages, a supplemental bundle running to 9 pages, a bundle of witness statement running to 57 pages and further late evidence comprising of emails from July and August of this year.

[4]On the second day we were presented with a Cast List and chronology as well as the Claimant’s original employment contract.

[5]We allowed the late evidence to be admitted as there was no objection to this going in and it was clearly relevant to the issues we had to determine.

[6]The Claimant made submissions that on the second day that she had still not had copies of the supplemental bundle, chronology and Cast List. Time was given for these to be provided to her and for her to read through these.

[7]We heard evidence from the Claimant, Debbie Thow, Vicky Denny, Samantha Murray, Moira Bevan, Rhys Edwards and Alex Tucker.

[8]The tribunal set out at the beginning of the hearing the timetable that would be followed.

[9]We also discussed with the Claimant whether there were any adjustments that could be made to help her participate in the process – it was agreed that breaks would be given when needed. Regular breaks were given.

[10]On the third day of the hearing, the Claimant was required to cross examine the Respondents’ witnesses. She found this day noticeably more difficult than the other days and was visibly upset on several occasions. On each occasion breaks were given for the Claimant to compose herself and the Claimant confirmed that she was able to proceed after each break. We heard the Respondent’s submissions at the end of the third day.

[11]The Claimant gave her closing submissions the following morning having asked for this adjustment. We considered it in accordance with the overriding objective to proceed on this basis given the Claimant had clearly been upset several times that day and needed time to gather her thoughts. After hearing her submissions, we adjourned to deliberate.

[12]At this point we would like to record how impressed the Tribunal were with how the Claimant conducted herself during this hearing. She has been found to be disabled by reason of work-related stress and so it is no surprise that she found aspects of this hearing difficult. The courtesy with which she treated the Respondent, and their witnesses was exemplary.

[13]By way of procedure, it is worth noting that there have been 4 preliminary hearings in this matter, the first before EJ Povey on 21/2/23, the second before EJ Sharp on 3rd May 2023 the third before EJ Vernon on 20th September 2023 and the last before EJ Brace on 4th March 2024.

[14]The Claimant has had the benefit of legal representation for part of these proceedings, in particular, the hearing before Judge Brace where the list of issues was finalised. However, she represented herself at the final hearing and also at the preliminary hearing before EJ Vernon.

Issues

[15]The Claimant has had 5 opportunities before evidence commenced to set out the basis of her claim. Most recently, the issues to be determined by the Tribunal were discussed with the parties at a case management hearing before Judge Brace on 4th March 2024 and again at the outset of the final hearing. At the outset of the hearing, both parties confirmed that the issues remained those set out in Judge Brace’s order of 4th March 2024.

[16]We noted one typographical error in Judge Brace’s order, in terms of time limits. The order stated that matters arising before 23rd June 2023 are potentially out of time. This should have been 23rd June 2022. This matter was raised with Ms Millin, and she did not seek to argue that the date of 23rd June 2023 was correct or that the tribunal was bound to go from that date given it was set out it the list of issues. We therefore find that any action taking place before 23rd June 2022 and not 2023 is potentially out of time.

[17]The issues also need to be considered in the context of the finding of Judge Vernon in relation to disability. At the open Preliminary Hearing in September 2023 Judge Vernon concluded that the Claimant was disabled at the material time by reason of work-related stress, but not by reason of dermatitis/allergy to latex. This finding has not been successfully appealed by either party. Consequently, the question of whether the Claimant was discriminated against needs to be considered in the context of her being disabled by reason of work-related stress only.

[18]Furthermore, the judge did not limit his finding that the Claimant was disabled on grounds of work-related stress to specific times within the period during which the actions complained of took place. The Respondent has not appealed this decision and has not sought to argue that the Claimant was only disabled from a later date, such as after February 2021. Therefore, again we must proceed on the basis that she was disabled at all times during the period of conduct complained of.

[19]We also note that at no point during this hearing has the Respondent adduced evidence, challenged the Claimant or sought to argue that it did not know or could not reasonably have known that the Claimant had a disability by reasons of workrelated stress. As such we cannot lawfully make a finding that the Respondent lacked knowledge and so this issue also falls away.

[20]The issues we must determine are consequently as follows: a Does the Tribunal have jurisdiction to hear the claim at all or is it out of time. The Tribunal needs to consider: i Whether the matters complained of took place after 23rd June 2022; or ii If they took place before 23rd June 2022 whether they formed part of conduct extending over a period with eh last action taking place on or after 23rd June 2022. b If we find that the claim was not brought within the original 3 months, we need to consider whether the claim was brought within any, further period that is just and equitable?

[21]The second issue is whether The Claimant was discriminated against on grounds of her work-related stress contrary to s. 15 Equality Act 2010. The issues the tribunal needs to determine are: a During a telephone call on 9th Feb 2021 did Debra Thow say what the Claimant alleges? b Did the Respondent fail to provide the Claimant with suitable gloves to carry out her work since 9th February 2021? c Did the Claimant’s line manager, Debra Thow, display a negative attitude regarding gloves and handwash during a meeting on 9th February 2021? d Did the Respondent fail to send the Claimant a skin surveillance questionnaire in a timely manner? The Claimant says it should have been sent in December 2021. e If we find that any of these things happened, we need to consider whether they amount to less favourable treatment whether this treatment happened because of something related the Claimant’s work-related stress. f If we find these tests satisfied, we must consider whether R have managed to show that the treatment was justified a proportionate means of achieving a legitimate aim.

[22]The third issue is a failure to make reasonable adjustments. We need to consider whether: a The lack of appropriate gloves put the Claimant at a substantial disadvantage compared to those who were not disabled by reason for work related stress. b Was the belated sending of a skin surveillance questionnaire failure to provide an auxiliary aid? If so, did it put the Claimant at a substantial disadvantage? c If so, the next issue would be whether the Respondent can show that it did not know and could not reasonably have known the Claimant would likely have been at a disadvantage. d If the Respondent fails to prove this then the next stage would be to consider whether the Respondent failed to make reasonable adjustments for the Claimant by way of failing to: i Provide non-allergic gloves to protect against blood/bodily fluids ii Allow double gloves to be used as recommended by Occupational Health iii Refer the Claimant for dermatology advice.

[23]The final issue is whether the wages paid to the Claimant were less than should have been paid. The Claimant says that had she not been discriminated against, she would have been in work and not on 85% pay.

[24]The Tribunal considered all of the written material and oral evidence however we only record the evidence in our reasons so far as is relevant to explain how we have reached our decision.

Background

[25]There is a significant amount of information that is either agreed or can be clearly established from the documentary evidence created at the time.

[26]To start at the beginning, the Claimant has been employed by the Respondent as a Health Care Support Worker since 19th June 2005. At all materials times the Claimant has worked only night shifts to fit with the shift work of her husband so he can drive her to work, and they have the same free time to spend together. She worked 24 hours a week.

[27]In around March 2016 the Claimant noticed a rash and itching on both of her hands on the parts covered by her latex gloves. She was seen by Dr Sharma, Occupational health on 11th May 2016 who concluded that the claimant was fit to work as long as she avoids such gloves, keeps on using hydromol and avoids using handwash. The Claimant was referred by Occupational Health (“OH”) to a dermatologist.

[28]Referral to dermatology concluded that the Claimant had a type 4 allergy to rubber gloves, which would be present in both latex rubber and nitrile manmade rubber. It was recommended that the Claimant use PVC or vinyl gloves, and this conclusion was communicated to OH by letter 9/9/2016.

[29]As a result, the Claimant began wearing Vinyl gloves to carry out all her duties. She says this agreed with OH. There is no evidence that contradicts this and so we accept this evidence. This arrangement worked well overall, although in the latter half of 2020 and early 2021 the Claimant says that she had to constantly request these to make sure they were in stock in her size (Large) [p. 97]. The Respondent says that this was due to supply issues during the Covid pandemic. This has not been materially disputed by the Claimant and we accept given the timing of the issues and the reasons cited by the witnesses and in the contemporaneous emails that this was likely the case.

[30]The Claimant was again referred to OH for a review on 20/01/2021 and had an appointment on 16/02/2021. At this point the problem came to light that the vinyl gloves the Claimant had been using did not adequately protect for exposure to blood/bodily fluids as they were too porous.

[31]In the meantime, the Claimant was having discussions with ward staff including Sharon Prout and her line manager Debra Thow about the issue. A telephone conversation took place between Debra Thow and the Claimant on 9th Feb 2021 where the issue of lack of appropriate PPE was discussed. There is disagreement as to what was said at this meeting. The Claimant says that Ms Thow opened the conversation saying bluntly “I have no work for you” and that the Claimant should consider redeployment. The conversation the Claimant describes was insensitive and unsupportive. Ms Thow denies this stating that redeployment was mentioned only in the context of repeated questions from the Claimant about what would happen if appropriate PPE could not be sourced. The tribunal consequently needs to decide what happened during this conversation and will deal with this later in our judgment.

[32]What is clear is that after this conversation the Claimant went off work sick and provided a note citing work related stress. She returned on 21st February 2021.

[33]Between her return on 21st February 2021 and 11th May 2021 the Claimant trialled various different gloves but had reactions to all of them. We can see this from photos 119 onwards. Gloves she reacted to included accelerator fee Palm care Gloves. The Claimant emailed Debra Thow on 17th March 2024 and again on 19/04/2021 to inform her of this and attaching photos.

[34]After having had reactions to all gloves trialled, she was placed on medical suspension between 11th and 18th May 2021. Thereafter she was signed off sick on work related stress and to date has not returned.

[35]Options such as the Claimant wearing two gloves with vinyl gloves closest to her skin to avoid irritation were also explored, but advice from infection control was that this was not appropriate.

[36]In 2022 the Claimant was invited to trial further gloves – however the gloves proposed were ones the Claimant had already had an allergic reaction to in 2021, namely the palm care gloves. Debra Thow said that this was an error as she had forgotten that the Claimant had had this reaction a year before.

[37]The Claimant was also offered alternative administrative work at various stages which she has rejected.

[38]The Claimant raised a formal grievance on 31st May 2022. She was informed of the outcome on 2nd August 2022 where her grievance was partially upheld. The Claimant appealed was notified of the outcome by letter dated 5th October 2022. In that letter it was accepted that the Respondent should have been clearer on the process for resolving the conflicting evidence on PPE and resolved the issue sooner. Furthermore, the Respondent accepted that the matter should have been reported to HSE, that this would be rectified and lesson learned and that someone else other than Debra Thow should have managed the Claimant’s sickness absence.

[39]The Claimant has been in receipt of temporary injury allowance from November 2021. She presented her claim to the tribunal on 9th November 2022.

[40]In 2023 several options for resolving the matter were offered to the Claimant which were: a Double gloving as proposed in 2021 of wearing nitrile gloves over vinyl gloves. To be taken off between each patient. Accept the risks associated with that of increased perspiration, reduced dexterity and thus not noticing tears. b Redeployment. c Mutual termination of employment

[41]The Claimant does not accept any of these options. Findings and Reasons

[42]The tribunal will now set out its findings and reason in respect of each of the issues in turn. Time Limits

[43]Proceedings need to be brought within 3 months starting with the date to which the act complained of relates or such other period as the tribunal thinks just and equitable: s. 123 (1) Equality Act 2010. This 3-month time period is adjusted to take into account periods of ACAS conciliation.

[44]ACAS conciliation took place between 22nd September 2022 and 3rd November 2022. The Claim was presented to the tribunal on 9th November 2022. Any act taking place after 23rd June 2022 is potentially out of time.

[45]Section 123 (1) Equality Act 2010 states that: “(3) For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period. (b)failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[46]Here the conduct being complained of relates to the failure to source appropriate PPE in the form of gloves that properly guard against infection from blood and bodily fluids that do not also trigger her dermatitis/allergies. This issue remained on going at the time the claim was issued. At this point the Respondent was still working toward finding a solution and so cannot properly be said to have done an act inconsistent with the duty to provide PPE. The Respondent’s own evidence was that the situation was fluid, in that there were supply issues arising from the Covid pandemic. This then changed in late 2022/23 making things easier to source.

[47]Based on this evidence we find that the matters complained of form part of conduct extending over a period with the end of the period being after proceedings were commenced. The Claimant’s wider complaints about the attitude and behaviour of Debra Thow, delays in providing skin survey questionnaires all form part of the overarching conduct associated with the issue of sourcing appropriate gloves for the Claimant.

[48]The claim is thus in time. Discrimination Arising from Disability s. 15:

[49]Section 15 of the Equality Act 2010 states that: “(1)R will have discriminated against the Claimant discriminates against a disabled person (B) if— (a)The Respondent treats the Claimant unfavourably because of something arising in consequence of her disability, and (b)The Respondent cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[50]Firstly, we accept that the Vinyl gloves used by the Claimant between 2016 and 2021 do not properly guard against infection from bodily fluids and were thus not suitable for the Claimant to use during significant aspects of her employment such as when carrying out intimate care.

[51]We accept that this must have come as a surprise to the Claimant at the beginning of 2021 given that she had been using the gloves without issue for 5 years. This is particularly so given that it does not appear that the time was taken to properly explain this change or properly advise the Claimant. However, there is ample evidence by way of emails from infection control and evidence from Samantha Murray and Moira Bevan to confirm that the gloves are unsuitable. This is further supported by Respondents’ glove selection guides.

[52]Furthermore, we note that the Claimant in her oral evidence said that she is not willing to double glove given the risk of infection should the nitrile glove tear. It is therefore clear that (while it took some time to come to terms with this advice) she now accepts the lack of protection of the Vinyl gloves alone.

[53]We then turn to the first complaint of discrimination, namely the telephone conversation between the Claimant and Debra Thow on 9th February 2021. 9th Feb 2021 between the Claimant and Debra Thow

[54]The findings of fact we are required to make as set out in the list of issues are: d Whether Debra Thow informed the Claimant that non-allergenic vinyl gloves provided for her use did not protect against blood & bodily fluid. e The there was no work available for the Claimant in her current role; and f The Claimant could consider redeployment.

[55]It is agreed that it was discussed that vinyl gloves did not protect against bodily fluid. However, this was a statement of fact. While it may have come as a shock and was not welcome news, we cannot see how providing the Claimant with this important information was unfavourable treatment. Indeed, it would have been wrong to withhold this information from the Claimant.

[56]We then consider what was said around availability of work and redeployment. There is broad agreement that this was discussed but the context in which they were discussed were very different. We have witness evidence from both the Claimant and Debra Thow as to their version of events.

[57]The Claimant gives a clear and consistent account of what was said. She first gives this account in writing in her grievance of 31st May 2022. However, there is also contemporaneous evidence from February 2021 that the Claimant found the conversation upsetting due to what she perceives was Debra Thow’s inappropriate behaviour: g 10th February 2021 there is a message was sent from Claire Bliss to Chris Burtenshaw that the Claimant found the conversation on 9th February upsetting. h There is also OH evidence that the Claimant found the conversation with her manager upsetting and feeling anxious and stressed during an OH appointment on 16th September 2021.

[58]We accept the Claimant’s evidence that she had no relevant previous issues with work related stress or anxiety before this. In her impact statement, the Claimant’s description of herself before she started suffering work related stress was that she was a person of reasonable fortitude. There is no reason why a conversation as to the lack of appropriate PPE (if handled properly) would cause a person of reasonable fortitude to go off on stress. That the conversation had this effect on the Claimant, in our view, tends to show that the conversation was not conducted in a sensitive manner. This is also supported by the fact that the Claimant immediately went of work sick with work related stress.

[59]We next turn to consider Debra Thow’s evidence. There is no evidence that Debra Thow was aware of the Claimant’s complaints surrounding her behaviour until over a year later. There is no evidence that this was raised with Mrs Thow at the time but was first raised in writing in the Claimant’s grievance over a year later. Mrs Thow also says that she was also not initially aware of the grievance. In her oral evidence, Mrs Thow was unable to recall the conversation beyond what was in her statement.

[60]The Claimant on the other hand was very firm in her recollection of what took place. On balance, we found the Claimant’s evidence of what happened more reliable than Mrs Thow’s.

[61]In finding it more likely than not that the conversation occurred the way the Claimant says it did, we also take into account the circumstances surrounding the conversation on 9th February 2021. At this stage the Claimant had been complaining of lack of gloves for some time. the Claimant also says that this got to a point where she spoke to Sharon about lack of gloves and told her that “If there are not enough supplies of my gloves, my basic PPE, when I come in to work, I am well within my rights to go back home.” This has not been materially disputed. We find it is entirely plausible that this is something the Claimant would have said under the circumstances.

[62]We also note an email passing between Mrs Thow and Kate Harper, dated 8th February 2021 in which she states: “My question is should they have patient contact if they are unable to wear the correct PPE that safeguards them, or should they be redeployed to a non-patient facing role?” It is therefore clear that redeployment was already in the forefront of Mrs Thow’s mind before she had the conversation with the Claimant on the 9th of February 2021.

[63]These are circumstances which in our view would also tend to support the conversation taking place in the matter described by the Claimant. For all these reasons we consider it more probable than not that Debra Thow stated at the outset of the conversation that there was no work for the Claimant and also discussed that Claimant may have to consider redeployment. We do not accept Mrs Thow’s evidence that redeployment was mentioned in response to repeated questions from the Claimant around what would happen if appropriate PPE was not found. We consider both factors to be unfavourable treatment.

[64]However, we do not find that the Mrs Thow said those things because of something arising as a consequence of the Claimant’s work-related stress. On the Claimant’s own evidence, she was not suffering from work related stress before this conversation. When asked how Mrs Thow’s actions during that conversation could have been as a result of work-related stress the Claimant said that hearing the Claimant get upset during the conversation spurned Mrs Thow on to speak to her in the unfavourable manner. We do not accept this assertion, which was made for the first time in closing submissions.

[65]There is no evidence to support that this is the case. Indeed, as we find below, there is ample evidence to suggest that Mrs Thow did make efforts to try and obtain suitable gloves for the Claimant. The evidence simply does not demonstrate that Mrs Thow would have the level of vindictiveness required to behave unfavourably as a result of the Claimant getting upset. In making this submission we find that the Claimant has tried to mould the facts to fit her disability claim not that she has found to not be disabled by reasons of dermatitis/allergy to latex.

[66]It is clear on the evidence before us that Mrs Thow said what she did because at the time it was not possible to source appropriate gloves for the Claimant. We find that Mrs Thow was feeling frustrated as a result of that not been able to source appropriate gloves for the Claimant, which came across clearly in her oral evidence. The Claimant’s upset, disturbed sleep and work-related stress was the effect of that meeting and not the cause. In order to find the Claimant was discriminated against we need to find something related to her work-related stress was cause of that treatment and this has not been proved on the evidence before us. While Mrs Thow could have handled that conversation better it was not disability discrimination. Failure to Provide Suitable Gloves

[67]The next allegation of discrimination are the failures of Ms Thow to get nonallergic gloves that protected the Claimant from blood and bodily fluids. The Claimant has clearly not been provided with such gloves to date and we have no hesitation in finding this to be unfavourable treatment in that the Claimant being unable to work.

[68]In terms of the failure to provide suitable gloves it is agreed that there was conflicting advice coming from OH who were saying from their perspective that the Claimant could use vinyl gloves and Infection Control, who were saying s could not. The Claimant says the Respondent should have done more sooner to resolve this conflict.

[69]Her case is that suitable gloves should have been available for her in February 2021. We find it is not realistic for the Claimant to have expected such an issue to have been resolved so quickly during a time of PPE shortage.

[70]The Respondent is under a duty to ensure the PPE appropriately protects employees from infection and as part of that duty must listen to expert advice and follow the appropriate procedure. Taking account that this issue first arose at the end of January 2021 coupled with the continuing supply issues as a result of covid, we do not accept that the Respondent could have resolved this issue by February 2021.

[71]We have evidence that the Respondent followed appropriate procedure in that an OH referral was made 20th January 2021 and appointment scheduled on 16th February 2021. In the meantime, advice from Infection Control was being obtained. OH advice on 17th February only stated that she needs appropriate PPE. It was clear this needed to keep her safe and not exacerbate her dermatitis. However, it was necessary to find PPE that met those criteria.

[72]The Claimant then returned to work and tried several makes of gloves to see if they were suitable. They were not. The Claimant’s own evidence on this was that at the beginning of the shift the palm care gloves appeared to be working but as time went on a reaction did occur.

[73]We accept that it would have been difficult to source specific gloves and indeed that there were difficulties sourcing PPE such as gloves at the time due to the pandemic.

[74]In light of not being able to find alternatives, the Claimant at this stage wanted to go back to wearing the vinyl gloves that she had always worn. The email evidence shows that that there were continued attempts to get clearance from Infection Control for her to do so, but Infection Control remained firm that vinyl gloves were unsuitable.

[75]On 22nd April 2021 the Claimant emailed Mrs Thow saying OH have said vinyl gloves were accepted and used in other hospitals. Mrs Thow responded saying will check and then did so by way of email to OH on the same day. This email was responded to by Kate Harper confirming that Vinyl gloves were only suitable for applying cream do not offer correct protection for bodily fluids. There is a further email from Elaine Lewis, OH manager to Mrs Thow, providing advice and confirming Vinyl not suitable for work with bodily fluids, dated 23rd April 2021.

[76]Elaine Lewis again emails Samantha Murray suggesting Vinyl as a compromise on 27th April 2021. Mrs Murray responds on 5th May 2021 Saying: “As an organisation we shouldn’t be seen to be promoting vinyl gloves for blood / bodily fluid use and at any time the Glove could tear, holding wipe with said bodily fluids on. This doesn’t send out an appropriate message…. IPC does not advocate the use of vinyl as a ‘compromise’ whilst potentially putting the staff member at risk and also altering reliance on her duties. In the absence of being able to undertake her role, it maybe she be allocated to non-glove use duties.”

[77]The Claimant is then again referred to OH on 1st May 2021 and the efforts to find appropriate gloves continue. In an email from Mrs Thow, dated 5th May 2021, we can see her correcting Samantha Murray by pointing out that the Claimant is sensitive to accelerators as this appears to have been forgotten by Infection Control. This demonstrates to us that Mrs Thow did want to find a solution for the Claimant in the form of appropriate gloves.

[78]On the 11th of May 2021 Mrs Thow completed and urgent re-referral to OH to establish what the Claimant was sensitive to. We have no hesitation in finding that the failure to provide appropriate gloves up until this point was due to conflicting advice and difficulty sourcing PPE. It had nothing to do with matters arising from the Claimant’s work-related stress.

[79]From 11th May to 18th May 2021 the Claimant is placed on medical suspension. Again, we do not find a difficulty in sourcing gloves was as a result of something arising due to work relate stress in that period.

[80]From 18th May 2021 to date the Claimant has been off work as a result of work relates stress and lack of appropriate PPE. We therefore find that her absence from work is something arising from her work-related stress. We therefore need to consider whether did the failure to provide gloves arise as a result of her being absent from work?

[81]We pause here to note that the Claimant was asked whether she would have behaved differently during this period and her later sickness absence had she not suffered from work related stress. The Claimant said that that she would have slept better, her self-esteem would not have been shattered she would have been a happier person. She did not however say that there was anything she did or any decision she made that resulted from work-related stress. The Claimant’s absence from work was the only matter on the evidence before the tribunal arising from her work-related stress.

[82]In a report dated 28th June 2021 OH notes that Claimant’s hands were so irritated that they would likely be aggravated by wearing any gloves due to the humidity they create. At this state she could therefore not trial further gloves or even wear her vinyl gloves. So again, the failure to provide gloves cannot be put down to her absence from work due to stress and anxiety during that time. Instead, her hands were so irritated that she could not wear or trial any gloves.

[83]During this time, we note that Mrs Thow continued to email Infection Control asking about the possibility of double gloving. Samantha Murray responds on 29th June 2021 raising concerns around dexterity being affected and risk of tears. This is relayed to the Claimant during meeting 1st July 2021. Infection Control’s advice remains consistent to this day that it does not advocate double gloving.

[84]On 31st July 2021 the respondent arranged an OH referral for 27th July 2021. At that assessment the Claimant is noted as being unfit to work for 2 months due to the ongoing flare up of her skin.

[85]On 21st July 2021 Accelerator free nitrile gloves are being ordered for the Claimant to trial when she is feeling better.

[86]By letter dated 27th October 2021 OH are still advising that the Claimant is unfit to work due to eczema but could do admin duties. So again, she is unable to trial or use gloves. We therefore find that any failure to provide appropriate gloves still cannot be attributed as something arising from work related stress.

[87]Only on 23rd Feb 2022 does OH sign her off as being fit for work. OH, again states that she is only fit to resume duties with appropriate gloves. Up until this point we do not find any delay in sourcing appropriate gloves was in consequence of something arising from work relates stress such as sickness absence – it was due to her dermatitis making her unfit to wear or trial any glove.

[88]Efforts to source appropriate gloves to trial are then resumed as can be seen form emails trails from March 2022. Enquiries were made of procurement to see if specific gloves can be sourced.

[89]Gloves were finally sourced in May 2022. However, these were Palm Care gloves that the Claimant had reacted to. Again, we find this was a mistake on the part of Mrs Thow who forgot that Palm Care was not suitable. We do not find this mistake arose as a result of the Claimant’s sickness absence or anything else resulting from her work-related stress.

[90]On 14th December 2021 the Claimant was offered a return to work on admin duties, but this was not accepted.

[91]On 13th January 2022 Mrs Thow was asked by Vicky Denny whether it is possible to know the gloves that have been ordered or specify which ones should be ordered. Mrs Thow responded saying that this was not possible – that the type such as nitrile gloves or accelerator free gloves could be requested, they would get what was sent. The evidence from the Respondent has been consistent that this is the case. We consequently find that Mrs Thow was accurately relaying the situation that existed at the time and was not being obstructive.

[92]On 9th June 2022 Mrs Denny emailed the Claimant suggesting she trials gloves at home. The Claimant refused to do this saying she did not want to bring the gloves into her home life. There is no evidence that these gloves would have been suitable or appropriate for the Claimant in any event. The evidence does not suggest that such gloves would have been of a different material so as to be potentially suitable.

[93]At this stage the efforts to identify appropriate gloves get overtaken by the Claimant’s grievance made in May and her applications for temporary injury allowance. We can see that in these matters the Respondent is however still considering the provision of gloves and looking for appropriate alternatives.

[94]To date no suitable gloves have been found. The Claimant has been unable to suggest any other types of gloves that would be suitable for her. There is no evidence before us that there are gloves suitable for the Claimant that will on the balance of probabilities provide appropriate protection without irritating the Claimant’s dermatitis. This again indicates to us that the likely reasons for not being able to source appropriate gloves for the Claimant is not because of something arising as a result of the Claimant’s Stress at work, but because appropriate gloves simply could not be sourced.

[95]One glimmer of hope exists for the Claimant. At the very end of her evidence Samantha Murray suggested that neoprene gloves may provide the appropriate protection without irritation. It is used by the ambulance service and so is potentially available and can be sourced. This is an avenue that the Tribunal considers should be explored.

[96]It is disappointing that this is not a suggestion that was made earlier. We find that a significant contributing factor to not being able to resolve this issue is the lack of ownership taken in respect of finding a solution. Not one witness of the Respondent was able to set out clearly whose responsibility it was to take a decision in light of the impasse between OH and Infection Control.

[97]It is clear from the emails passing to infection control and the witness evidence of Moira Bevan and Samantha Murray that they only responded to the specific questions being asked of them at the time. They failed to properly inform themselves of the circumstances of the Claimant, which is evidence by Infection Control having forgotten that the Claimant was sensitive to accelerators requiring Mrs Thow to remind them of it in May2021. There is absolutely no evidence of engagement from Infection Control in trying to solve the material issue of having to find appropriate PPE type 4 allergy to both latex rubber and nitrile manmade rubber. Had they engaged with the material issue it is highly likely that the suggestion of neoprene would have been made sooner. However, the question we need to ask was whether the failure to provide appropriate gloves was due to something arising in consequence of the Claimant’s disability of work-related stress. We find there is nothing to link Infection Control’s siloed working with the Claimant’s work-related

[98]This is one of a number of examples where we find the Respondent has failed to exercise the appropriate diligence in this matter. We not that Mrs Thow did not properly inform herself of the Claimant’s needs at the outset.

[99]On her own evidence she had no idea about Claimant’s allergy. Mrs Thow said that she did not know that Claimant was wearing the gloves for her allergy that she thought the Claimant was only wearing these for cleaning and applying cream. Later in her evidence she confirmed that staff did not switch gloves depending on their duties. That is to say, they did not wear latex for intimate care and vinyl for other duties. Furthermore, Mrs Thow worked alongside the Claimant. We therefore find that Mrs Thow knew that the Claimant was wearing Vinyl gloves for all duties, and that this had something to do with latex sensitivity.

[100]We find that while Mrs Thow knew the Claimant had some sort of sensitivity, but did not properly inform herself of this. Had she properly considered the OH and dermatology records from 2016 time could have been saved with testing. We further note that Mrs Thow did not provide the skin surveillance questionnaire in time in December 2021 and again forgot the Claimant’s reaction to the Palm Care gloves in 2022. However again was not due to the Claimant’s work-related stress.

[101]We also note that there were issues with management of long-term sickness absence. For example, we were not provided with minutes or notes from the various meetings with the Claimant. Vicky Denny said that what happened was appropriately recorded in her timeline and the letters to the Claimant about the meetings. We find it extremely surprising that a senior HR advisor would suggest this is appropriate conduct. It is not. However again we do not consider that this behaviour was because of something arising from Claimant’s stress at work.

[102]For these reasons we find that the required elements of the legal test are not made out. Negative Attitude meeting 13th December 2021

[103]We bear in mind it is for the Claimant to prove facts suggesting Mrs Thow had a negative attitude during the meeting on 13th December 2021. The Claimant’s witness evidence says the following: “13th December 2021 A Completed Skin Surveillance sent to me by Deb at the very end of an LTS Meeting (page 240). DP/T sent too late to me so there was no outcome. 4 weeks’ usual timeframe (page 203) Skin Surveillance form and my emails (page 246-249) 13th December If this was the day? that an alternative role was suggested in an LTS meeting. I definitely replied - ‘I don’t trust it’ ‘I don’t know how long it would be for’ ‘I think you are trying to get rid of me’ I recall -No terms were discussed at this time regarding alternative role. Nothing written in my personal file regarding offer of alternative work (page 370,369)”

[104]The Claimant was asked by Ms Millin if she could be more specific as to what she meant by negative attitude. She said Mrs Thow had a negative attitude because she said that she could not source appropriate soap for the Claimant or guarantee appropriate gloves for the Claimant.

[105]The Respondents’ evidence on this point is that it was not possible to guarantee the appropriate gloves because of the ongoing conflict advice from OH and infection control as well as the difficulty being able to find and trial a suitable alternative. Even if Mrs Thow said that she could not guarantee appropriate gloves would be provided we find that this was not a negative attitude but an appropriate assessment of what was realistic at the time. Similarly, the Respondent’s evidence was that it was not possible to source appropriate soap for the Claimant at that time due to difficulties with procurement.

[106]We took into account the evidence as a whole in particular the email trails between Mrs Thow OH and Infection Control. What we see from those emails is someone who is proactively trying to find a solution to the problem, but that she continued to meet with obstacles in particular from Infection Control. We therefore do not find Mrs Thow had a negative attitude in that meeting.

[107]Even if we had found that Mrs Thow’s attitude was negative, we consider any negativity would have been as a result of frustration of not being able to find a solution and not because of something arising from the Claimant’s work-related Skin Questionnaire

[108]The Claimant says that Mrs Thow did not send the Claimant a skin surveillance questionnaire in a timely manner. The Claimant says it should have been sent in November 2021 prior to 13th December 2021 when it was in fact sent. Mrs Thow accepted that she did not send this out in time and should have sent it sooner.

[109]On this point Ms Millin submitted that Mrs Thow tried to call the Claimant, but she did not respond. This has no relevance to the issue of whether the questionnaire was sent out in time. This could have been posted had Mrs Thow spoken to the Claimant or not. The effect of not sending this out was that the Claimant did not receive an outcome to this questionnaire which we find that was unfavourable treatment. We accept that this would have resulted in increasing the Claimant’s work-related stress. Again, however we do not find Mrs Thow’s failure to send out the questionnaire was as a result of something arising from the Claimant’s workrelated stress. Again, when asked how arose from her work-related stress the Claimant explained how this behaviour increased her stress and was unable to point to anything that could indicate that her stress was causative of this behaviour. Allowing other staff to use non vinyl gloves and not the Claimant

[110]Lastly, the Claimant says the continued availability for other staff of non-allergy vinyl gloves was unfavourable treatment. There is clear evidence that such gloves remained available on the ward and continued to be ordered. We do not find that this amounted to unfavourable treatment of the Claimant for the following reasons: a There is no evidence that the Claimant was prevented from using those gloves when doing things that did not involve exposure to blood or bodily fluids. The email evidence and advice are clear and consistent that she was told she could not use them when exposed to bodily fluid but could use them for applying creams and cleaning. However, the role involved such a degree of intimate care that she could not continue to work limiting her work to roles requiring only vinyl gloves. This has never been asserted by the Claimant. b In her closing the Claimant said for the first time that others were allowed to use these gloves when working with bodily fluid. We do not accept that this is the case. The Claimant’s own evidence was that those gloves were only ordered for her use. This is inconsistent with what she now says that these were being used by others. There is no evidence that these were being used by others other than the Claimant’s bare assertion during closing submissions. This is not sufficient for us to find it more probable than not that others were using the gloves when exposed to bodily fluid. c Lastly, if people were using these gloves when around bodily fluid this would be placing them at risk of infection. We have already found that such gloves were unsuitable and unsafe to be used when working bodily fluids. As such not allowing the Claimant to use the gloves, preventing risk of infection, which allowing others to, putting them at risk of infection, is not less favourable treatment for the Claimant.

[111]Again, we also do not find that such treatment arose as a consequence of something arising from the Claimant’s work-related stress.

[112]For these reasons we find that the Claimant was not discriminated against as a result of something arising from her disability. Reasonable adjustments

[113]Section 20 of the Equality Act 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 those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises 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 disabled, 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.”

[114]The importance of a methodical approach to reasonable adjustments complaints was emphasised by the EAT in Environment Agency v Rowan

[2008] ICR 218

and in Royal Bank of Scotland v Ashton

[2011] ICR 632

, both approved by the Court of Appeal in Newham Sixth Form College v Sanders

[2014] EWCA Civ 734

. Set out the following approach: a What is the provision, criterion or practice (“PCP”), physical feature of premises, or missing auxiliary aid or service relied upon? b How does that PCP missing auxiliary aid put the Claimant at a substantial disadvantage in comparison with persons who are not disabled? c Can the Respondent show that it did not know and could not reasonably have been expected to have known that the Claimant was a disabled person and likely to be at that disadvantage? d Has the Respondent failed in its duty to take such steps as it would have been reasonable to have taken to have avoided that disadvantage or to have provided the auxiliary aid or service?

[115]The Claimant says that an Auxiliary aid for stress and anxiety was appropriate PPE in form of non-allergic gloves that protect against infection on exposure to bodily fluids.

[116]An auxiliary aid is defined in the Employment Statutory Code of Practice 6.13 as: Something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services, for example, provision of a sign language interpreter or a support worker for a disabled worker.

[117]Provision of appropriate PPE in form of non-allergic gloves that protect against infection on exposure to bodily fluids would be an auxiliary aid for someone who was disabled by reason of an allergy to latex/dermatitis. However, the Claimant has been found to not be disabled on those grounds.

[118]We have to find that the failure to provide appropriate gloves places the Claimant at a disadvantage compared to someone who does not have work related stress. The Claimant says the provision of the gloves would have meant she could go back to work. However, the gloves would have helped her to go back to work by reason of her dermatitis and not her stress.

[119]Furthermore, there is insufficient evidence before us that the provision of such gloves would have had the effect of alleviating stress. Between May 2021 and February 2022, she is signed off as being advised to not wear any gloves at all. Consequently, appropriate gloves would not have helped at that point. When gloves are then sourced, the Claimant is not prepared to trial these. It therefore difficult to see how sourcing appropriate gloves would have had the effect of alleviating her

[120]We find the lack of appropriate gloves puts her as a disadvantage by reason of her dermatitis and not stress. For these reasons the claim for failure to make reasonable adjustments fails on this point.

[121]The second point relied on is the delay in providing the skin surveillance questionnaire in December 2021, the Claimant states is a failure to provide an auxiliary aid. Again, if there were an auxiliary aid it would relate to dermatitis which is not a disability as opposed to the work-related stress. However, on the evidence we further do not find that a failure to provide this put the Claimant at a substantial disadvantage compared to someone who was not stressed. Yes, this caused delay, but there is no evidence on which we can credibly find that had this been sent out that appropriate gloves would have been found and the Claimant would have been back at work. The Claimant’s reasonable adjustments claim therefore also fails on this point as well.

[122]If we are wrong on that we would find that the Respondent has failed to show that it did not know and could not reasonably have known that the Claimant would be at a disadvantage as the respondent has advanced, no evidence on this point.

[123]In terms of the adjustments suggested: a We do not find that it had properly been made out that a referral to dermatology would have avoided the disadvantage. She had been referred to dermatology in 2016 who had made clear findings on what she was allergic to. The material issue would being able to source appropriate gloves that fulfilled the criteria already established. b We find double gloving is not an appropriate solution. Infection Control has been consistent in its advice that this presents risks, not least from increased sweating which itself can affect dermatitis. The Claimant has said herself that she would not accept this option and so it is clear she acknowledges this is not appropriate. If it is not appropriate now there is no reason why it would have been appropriate in 2021/22. c In term of the provision of appropriate gloves we do not find that this was reasonable adjustment under the circumstances. Initially this was not possible due to conflicting advice and issues with supplying PPE during the pandemic. Between June 2021 and February 2022, it was not possible to source gloves due to the Claimant’s dermatitis and thereafter not possible due to Claimant being unwilling to trial gloves. At no point has the Claimant suggested that her unwillingness to trial the gloves was because of her work-related stress. d For these reasons the Tribunal would also conclude that there were not steps that would have avoided the disadvantage or would have been reasonable to take. e For these reasons we find that the respondent not failed to make reasonable adjustments for the Claimant’s stress and anxiety. Unlawful deduction of Wages

[124]The starting point for unlawful deduction of wages is that we must decide whether the Claimant has been paid less than she should have been paid. She says that she should have been on full pay from November 2021. In fact, she was on 85% pay from that date because she was off on sick but receiving payment injury benefit.

[125]She says that she should have received this as she was off work due to discrimination. This is not an unlawful deduction of wages claim. That is a claim for past pecuniary loss arising from disability discrimination. As we have found the test for disability discrimination is not made out, she would not be entitled to recover damages for discrimination.

[126]On the evidence before us the Claimant was receiving what she should have been paid in-line with her contract and policies given she was off sick. We therefore do not find this element of the claim made out and this is also dismissed.

Conclusions

[127]For the reasons given above we find that the Claimant was not discriminated against in respect of her disability of work-related stress and her claim for deduction of wages is not upheld. This finding does not mean that there were elements of the Respondents’ conduct that could be improved on or that the Claimant has not found the process difficult. What is means is that when applying the legal tests, the conduct does not amount to discrimination on grounds of work-related stress.

Conclusions

[1]An application was made by the Respondent on 23rd October 2024 for an order that the Claimant to pay the Respondent’s costs in the sum of £20,000 following dismissal of her claims for disability discrimination on 20th September 2024.

[2]Both parties have made submissions and consented for the matter to be dealt with on the papers and I consider it appropriate to do so.

[3]Rule 74 of the Tribunal Procedure Rules 2024 requires the tribunal to consider making a costs order where it considers that:a. a party has acted vexatiously, abusively, disruptively of otherwise unreasonably in bringing or conducting proceedings and/or

b. where any claim had no reasonable prospect of success.

[4]Both of these grounds are relied on by the Respondent.

[5]In relation to the second ground, EJ Vernon concluded on 20th September 2023 that the Claimant was disabled at the material time because of work-related stress and not by reason of dermatitis/allergy to latex. The claim was ultimately dismissed because the detriment complained of was not found to have been a result of the Claimant’s work-related stress. Although some of the detriment may have been Case No: 1601375/2022 caused/resulted from her dermatitis/allergy.

[6]The Respondent says that while the judgment made findings that were to a point critical of the Respondent, these were separate and distinct from any question as to the legal merit of the claims brought. The Claimant had benefit of representation in the early part of 2024 and so the Respondent assumes that the Claimant would have been advised on her poor prospects of success.

[7]While the claims were ultimately unsuccessful, the tribunal does not consider that the Claimant’ prospects of success were so poor that they had no reasonable prospect of success. The issue of the Claimant’s work-related stress and dermatitis/allergy were closely linked and required a detailed consideration of the facts and chronology in order to determine causation. As was noted in the Respondent’s application, the tribunal were critical of certain aspects of the Respondent’s conduct, and this required careful consideration in order to determine whether this was relevant to the material legal issues.

[8]The Respondent further states that the Claimant acted unreasonably in rejecting the Respondent’s offers to settle made on 11th and 13th September 2024. The latter being in the sum of £18,000 for injury to feelings and £3,952.16 payment in lieu of notice.

[9]It is pertinent to note that at this point the Claimant was not legally represented. She continued to be classed as disabled by reason of stress. Under the circumstances and taking into account the potential overlap between work related stress and dermatitis, the tribunal does not consider that the Claimant acted unreasonably in rejecting these offers. C Grubb