Ms R Rees v Cardiff and Vale University Local Health Board: 1602460/2024

EMPLOYMENT TRIBUNALS

Case No 1602460/2024

Between

Ms R ReesClaimant

Cardiff and Vale University Local Health BoardRespondent

Before

Employment Judge R Harfield

Mr A Pincott (instructed by Counsel) for claimant

Mr O James (instructed by Counsel) for respondent

Date 11 June 2025

JUDGMENT

[1]The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed.

[2]The complaints of failure to make reasonable adjustments and discrimination because of something arising in consequence of disability are not well-founded. The Equality Act 2010 complaints are dismissed.

[3]The Claimant is entitled to a 10% uplift to the compensatory award in respect of the failure to comply with the Acas Code of Practice. The successful complaint will be listed for a remedy hearing to determine any other outstanding remedy issues.

REASONS

[1]Introduction1.1 The Claimant was employed by the Respondent from 2006 until her resignation, working as a Band 6 staff nurse in paediatrics on the Pelican Ward at the Children’s Hospital at the University Hospital of Wales in Cardiff. The Claimant specialises in paediatric renal nursing. The ET1 Claim Form was presented on 21 June 2024 bringing complaints of constructive unfair dismissal, constructive discriminatory dismissal, failure to make reasonable adjustments, and unfavourable treatment because of something arising in consequence of disability. The Respondent filed an ET3 Response Form disputing the complaints. A case management hearing took place before Employment Judge R Evans on 3 September 2024 where he listed a 7 day liability hearing and made cased management orders to prepare for that hearing. The parties had provided a joint List of Issues prior to the case management hearing. EJ Evans appended a different draft List of Issues to his case management orders. EJ Evans’ case management orders directed the parties, to amongst other things, agree a final List of Issues by 21 February 2025. This was not done and given the discrepancies in the two different Lists of Issues the parties’ Counsel were directed to file a finalised List of Issues during the course of the hearing. Employment Judge Harfield was unable to sit on 10 March 2025 and therefore the hearing was reduced to 6 days. That said the Tribunal panel did not complete our deliberations on 11 March 2025 and we were able to sit an additional day on 12 March 2025, in chambers, to complete our deliberations. As a result the Judgment was reserved to be delivered in writing. Employment Judge Harfield apologises for the delay in delivering this Judgment, which was caused by the pressure of other judicial work.

1.2 The Respondent conceded the Claimant was disabled by way of anxiety and depression but only from 27 October 2022 onwards. They said in their email of 7 October 2024: “..the Claimant has not produced any GP records prior to August 2022. In her GP appointment on 18th August 2022, the Claimant confirmed her activities outside work were not affected. The Claimant alleges that at this time it was her work activities affected and requests that they are considered within the meaning of “day to day activities.” The Respondent disagrees that the Claimant’s work activities can be held to be within this meaning as they are too specialised to be day to day activities in the normal sense as they involve managing complex unwell children. They are indeed normal for the Claimant’s day to day work but the Respondent contends that it is not the intention of the test at Section 6 of the Equality Act to include specialised work activities. The Respondent acknowledges that on 27th October, the Claimant was prescribed anti-anxiety medication.”

1.3 As some of the disability discrimination complaints pre-dated 27 October 2022 we therefore had to determine the question of disability as part of our deliberations.

1.4 We had written witness statements from, and heard oral evidence from, the Claimant (including a second disability impact statement), Catherine Biddle (her RCN Representative) [CB] and for the Respondent from Karenza Moulton [KM], Abigail Dodwell [AD], Rhiannydd Poynter [RP], David Pitchforth [DP], Rachael Maiden [RM], Kylie Hart [KH] and Tina Freeman [TF]. We were given a chronology, a cast list and a suggested reading list. We had a main hearing bundle, a supplemental bundle and two additional emails from November 2020. We received written and oral closing submission from both Counsel. For reasons of expediency Counsel’s submissions are not repeated within this Judgment but we took all submissions into account and particular points are referred to in our Discussion and Conclusions below.

1.5 Part of this case involved a looked after child and we made an anonymisation order and a restricted reporting order prohibiting the identification of the child and her foster family. The child can only be identified as AT.

[2]The legal principles2.1 Under section 6 of the Equality Act 2010 a person has a disability if she has a physical or mental impairment and the impairment has a substantial and long term adverse effect on her ability to carry out normal day to day activities. Under section 212 “substantial” means more than minor or trivial.

2.2 Under paragraph 2 of Schedule 1, an effect of an impairment will be long term if it has lasted for at least 12 months, or is likely to last for at least 12 months or the rest of the person’s life. Likely here means “could well happen.”

2.3 When assessing the impact on ability to carry out normal day to day activities, the focus is on what a disabled person cannot do or can only do with difficulty, rather than on things the person can do: Goodwin v Patent Office

[1999] ICR 302

. However, depending on the facts of a case, what a claimant actually can do may throw significant light on the question of what he cannot do: Ahmed v Metroline Travel Limited

UKEAT/0400/10

2.4 The effect on the individual of the disability has to be compared with how she would carry out the activity if the individual did not have the disability: Paterson v Commissioner of Police of the Metropolis

[2007] IRLR 763

. The question of disability status must be assessed on the basis of information available at the time: All Answers Ltd v W

[2021] IRLR 612

2.5 Under section 6(5) Equality Act a Tribunal must take account of the “Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability” (“the Guidance”) to the extent the tribunal thinks relevant. Under Section 14 Equality Act 2006, the Equality and Human Rights Commission has also issued a Code of Practice which under section 15 which must again be taken into account where it appears to the Tribunal to be relevant. The Code and Guidance are not to be construed as if statutes and must always give way to the statutory provisions if, on a proper construction, they differ from the Code or Guidance. The Guidance says at paragraph B2, that when assessing the effects of an impairment the time taken by a person undertaking an activity should be considered. Under paragraph B3 the way in which an activity is carried out is also relevant; the example given is of an individual with OCD having to constantly check and recheck the locking of doors. Paragraph B7 addresses coping and avoidance strategies and makes the point that in some instances even with such strategies there can still be an adverse effect on day to day activities. Under paragraph B9 account should also be taken of where a person avoids doing things, for example, because of a loss of energy and motivation. Paragraph D22 notes that an impairment may not directly prevent someone from carrying out a day to day activity but still have a substantial adverse effect on how the person carries out those activities. There are similar comments in the EHRC Code of Practice.

2.6 In Paterson v Commissioner of Police of the Metropolis

[2007] IRLR 763

, it was held that, to give effect to what was then European Community Law, a meaning should be given to day to day activities which encompasses activities which are relevant to participation in professional life.

2.7 The current version of the Guidance says: D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples including shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. …D10 However, many types of specialised work-related or other activities may still involve normal day-to-day activities which can be adversely affected by an impairment. For example they may involve normal activities such as: sitting down, standing up, walking, running, verbal interaction, writing, driving, using everyday objects such as a computer keyboard or a mobile phone, and lifting, or carrying everyday objects, such as a vacuum cleaner.”

2.8 In J v DLA Piper UK LLP

[2010] ICR 1052

it was said that in many cases it may be helpful to focus on the question of whether there was an adverse effect on the ability to carry out normal day-to-day activities. If it is found that there was such an effect, then in many cases it may be reasonably inferred that the Claimant was suffering from some impairment which has produced that adverse effect even if that impairment is not specifically named or identified. However, the EAT in that case emphasised that that did not mean that the impairment question could simply be ignored. Failure to make reasonable adjustments

2.9 The duty to make reasonable adjustments appears in Section 20 Equality Act as having three requirements. In this case we are concerned with the first requirement in Section 20(3): “(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.”

2.10 Under section 21 a failure to comply with that requirement is a failure to comply with a duty to make reasonable adjustments and will amount to discrimination. Under Schedule 8 an employer is not subject to the duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the Claimant has a disability or that the Claimant is likely to be placed at a substantial disadvantage.

2.11 In Environment Agency v Rowan

[2008] ICR 218

it was emphasised that an employment tribunal must first identify the “provision, criterion or practice” applied by the respondent, any non-disabled comparators (where appropriate), and the nature and extent of the substantial disadvantage suffered by the Claimant. Only then is the tribunal in a position to know if any proposed adjustment would be reasonable.

2.12 The words “provision, criterion or practice” [“PCP”] are said to be ordinary English words which are broad and overlapping. They are not to be narrowly construed or unjustifiably limited in application. However, case law has indicated that there are some limits as to what can constitute a PCP. Not all one-off acts will necessarily qualify as a PCP. In particular, there has to be an element of repetition, whether actual or potential. In Ishola v Transport for London

[2020] EWCA Civ 112

it was said: “all three words carry the commutation of a state of affairs… indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.” It was also said that the word “practice” connotes some form of continuum in the sense that it is the way in which things are generally or will be done.

2.13 Substantial disadvantage is such disadvantage as is more than minor or trivial; Section 212. The purpose of considering how a non-disabled comparator may be treated is to assess whether the disadvantage is linked to the disability i.e. whether the PCP has the effect of disadvantaging the disabled person more than trivially in comparison with others who do not have any disability – see Sheikholeslami v University of Edinburgh

[2018] UKEAT 00113

17 0510.

2.14 What adjustments are reasonable will depend on the individual facts of a particular case. Paragraphs 6.23 to 6.29 of the EHRC Code give guidance on what is meant by reasonable steps. Paragraph 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicality of the proposed step; the cost of making the adjustment; the extent of the employer’s resources; and whether the steps would be effective in preventing the substantial disadvantage.

2.15 In County Durham and Darlington NHS Trust v Dr E Jackson and Health Education England

EAT/0068/17/DA

the EAT summarised the following additional propositions:

• It is for the disabled person to identify the “provision, criterion or practice” of the respondent on which s/he relies and to demonstrate the substantial disadvantage to which s/he was put by it;

• It is also for the disabled person to identify at least in broad terms the nature of the adjustment that would have avoided the disadvantage; they need not necessarily in every case identify the step(s) in detail, but the respondent must be able to understand the broad nature of the adjustment proposed to enable it to engage with the question whether it was reasonable;

• The disabled person does not have to show the proposed step(s) would necessarily have succeeded but the step(s) must have had some prospect of avoiding the disadvantage;

• Once a potential reasonable adjustment is identified the onus is cast on the Respondent to show that it would not been reasonable in the circumstances to have to take the step(s);

• The question whether it was reasonable for the respondent to have to take the step(s) depends on all relevant circumstances, which will include: the extent to which taking the step would prevent the effect in relation to which the duty is imposed; the extent to which it is practicable to take the step; the financial and other costs which would be incurred in taking the step and the extent to which taking it would disrupt any of its activities; the extent of its financial and other resources; the availability to it of financial or other assistance with respect to taking the step; the nature of its activities and size of its undertaking;

• If the tribunal finds that there has been a breach of the duty; it should identify clearly the “provision, criterion, or practice” the disadvantage suffered as a consequence of the “provision, criterion or practice” and the step(s) the respondent should have taken. Unfavourable treatment because of something arising in consequence of

2.16 Section 15 of the Equality Act states: “15 Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim

(2) Subsection (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.”

2.17 The approach to determining Section 15 claims was summarised by the EAT in Pnaiser v NHS England and Another

[2016] IRLR 170

. This includes:

• The first stage is to assess the “because of”. In determining what caused the treatment complained about or what was the reason for it, the focus is on the reason in the mind of

a. A. This is likely to require an examination of the conscious or unconscious thought process of A;

• The “something” that causes the unfavourable treatment need not be the main or sole reason, but must at least have a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it;

• Motives are not relevant;

• The second stage is to determine whether as a matter of fact the “something arising in consequence” was a consequence of the disability;

• The expression “arising in consequence of” can describe a range of causal links between the something that causes unfavourable treatment and the disability;

• This stage of the test is an objective question and does not depend on the thought processes of the alleged discriminator;

• Knowledge is only required of the disability. Knowledge is not required that the “something” leading to the unfavourable treatment is a consequence of the disability;

• It does not matter precisely in which order these questions are addressed.

2.18 In assessing whether something is “unfavourable” treatment there must be a measurement against “an objective sense of that which is adverse as compared to that which is beneficial”; Trustees of Swansea University Pension & Assurance Scheme v Williams

[2018] UKSC 65

2.19 The respondent will successfully defend the claim if it can prove that the unfavourable treatment was a proportionate means of achieving a legitimate aim. This is often termed “objective justification.” The burden of proof is on the employer to establish justification. The Supreme Court in Ministry of Justice v O’Brien

[2013] ICR 449

re-stated the general principles of objective justification that: (a) firstly, the treatment must pursue a legitimate aim; (b)second, it must be suitable for achieving that objective; and (c) third, it must be reasonably necessary to do so.

2.20 The EHRC Code of Practice contains guidance on objective justification, to reflect some of the case law in the field. It terms the first issue as being determination of whether the aim is legal and non-discriminatory and one that represents a real, objective consideration. In Bilka-Kauhaus GmBH v Weber von Hartz

[1987] ICR 110

it was termed: “correspond to a real need on the part of the undertaking.”

2.21 In Chief Constable of West Yorkshire Police and anor v Homer

[2012] ICR 704

, the Supreme Court reiterated that the measure in question has to be both an appropriate means of achieving the legitimate aim, as well as being reasonably necessary in order to do so. Some measures may simply be inappropriate to the legitimate aim in question, or they may be appropriate but go further than is reasonably necessary and so be disproportionate.

2.22 As to the third stage, the EHRC Employment Code notes: “Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts.” We pause here to note that in a section 15 claim, it is of course the treatment that is being justified, not a provision, criterion or practice (the terminology from an indirect discrimination complaint). In Akerman-Livingstone v Aster Communities Ltd

[2015] UKSC 15

the Supreme Court set out a four stage approach to the balancing exercise: first, whether the aim is sufficiently important to justify the treatment; second, whether there is any rational connection between this aim and the less favourable treatment or disadvantage suffered; third, whether the means chosen are no more than is necessary to accomplish the aim (and whether proportionate alternative measures could have been taken without a discriminatory effect); and, fourth whether the steps complained of strike a fair balance between the need to accomplish the aim and the detriment suffered.

2.23 It was said by the EAT in Ali v Drs Torrosian, Lochi, Ebeid & Doshi t/a Bedford Hill Family Practice [2018] UKEAT0029 18 0205 (which was a section 15 case) that:

• Justification of the unfavourable treatment requires there to be an objective balance between the discriminatory effect and the reasonable needs of the employer;

• When determining whether or not a measure is proportionate it will be relevant for the tribunal to consider whether or not any lesser measure might nevertheless have served the employer's legitimate aim;

• More specifically, the case law acknowledges that it will be for the tribunal to undertake a fair and detailed assessment of the working practices and business considerations involved, and to have regard to the business needs of the employer;

• As to the time at which justification needs to be established, that is when the unfavourable treatment in question is applied;

• When the putative discriminator has not even considered questions of proportionality at that time, it is likely to be more difficult for them to establish justification. Burden of Proof under the Equality Act 2010

2.24 The Equality Act 2010 provides for a shifting burden of proof. Section 136 so far as material provides: “(2) if there are facts from which the Court (which includes a Tribunal) could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

2.25 Consequently, it is for a claimant to prove facts from which the tribunal could infer (absent explanation from the respondent) that discrimination has taken place. If such facts have been made out to the tribunal’s satisfaction, applying the balance of probabilities, the second stage is engaged. At the second stage the burden shifts to the respondent to prove, again on the balance of probabilities, that the treatment in question was “in no sense whatsoever” because of the prohibited reason / that the protected characteristic was not a ground for the treatment in question. A tribunal would normally expect cogent evidence to discharge that burden of proof.

2.26 In Hewage v Grampian Health Board

[2012] IRLR 870

the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provisions should apply. That guidance appears in Igen Limited v Wong

[2005] ICR 931

, as supplemented in Madarassy v Nomura International Plc

[2007] ICR 867

. Here it is important to note that although the concept of the shifting burden of proof involves that two-stage process, the analysis should only be conducted once the tribunal has heard all the evidence.

2.27 Further, as to what is required to discharge the burden at the first stage; it must be something more than a difference in protected characteristic and a difference in treatment. It was said that the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. It is not necessarily an error of law for a tribunal to effectively assume the burden has shifted and look to the respondent to provide an explanation for the treatment in question. It was said in Hewage that the burden of proof provision may have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. But the burden of proof provisions do require careful attention where there is room for doubt as to the facts necessary to establish discrimination; see Field v Steve Pye &Co

[2022] EAT 68

and the important guidance there at paragraph 41 onwards. Time Limits in Discrimination Cases

2.28 The initial time limit for complaints under the Equality Act 2010 is 3 months starting with the date of the act of discrimination complained about. The effect of the early conciliation procedure is that, if the notification to ACAS is made within the initial time limit period, time is extended, at least, by the period of conciliation.

2.29 Under Section 123(3) of the Equality Act conduct extending over a period is to be treated as done at the end of the period. A continuing course of conduct might amount to an act extending over a period; Hendricks v Commissioner of Police of the Metropolis

[2003] IRLR 96

2.30 Under Section 123(3) a failure to do something is to be treated as occurring when the person in question decided on it. Under section 123(4) in the absence of evidence to the contrary, a person (P) is to be taken to decide on a failure to do something when either P does an act inconsistent with doing it, or if P does not do an inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. A tribunal may consider a complaint out of time if it considers it just and equitable to do so in the relevant circumstances.

2.31 Time limits for complaints about failure to make reasonable adjustments can be tricky. In Hull City Council v Matuszowicz

[2009] ICR 1770

the Court of Appeal identified that the time limit may be triggered by a deliberate decision not to comply with a duty to make an adjustment, or there may be an omission through, for example, lack of diligence. In the latter category, and in the absence of evidence about when the omission was decided upon, the legislation deems a date as being either when the employer does an act inconsistent with the duty to make reasonable adjustments, or alternatively there must be consideration of when the employer might reasonably have been expected to undertake an act consistent with the duty to make reasonable adjustments. In Abertawe Health Board v Morgan

[2018] ICR 114

the Court of Appeal held that the date by which the employer might reasonably have been expected to comply with the duty must be determined in the light of facts as they would reasonably have appeared to the claimant.

2.32 In Fernandes v Department for Work and Pension

[2023] EAT 114

, the EAT observed as follows: "16. …a. The duty to make an adjustment, under the statutory scheme, arises as soon as there is a substantial disadvantage to the disabled person arising from a [provision criterion or practice] (presuming the knowledge requirements are met) and failure to make the adjustment is a breach once it becomes reasonable for the employer to have to make the adjustment.

b. Where the employer is under a duty to make an adjustment, however, limitation may not begin to run from the date of the breach but at a later notional date. As is the case where the employer is under a duty to make an adjustment and omits to do so there will be a notional date where time begins to run whether the same omission continues or not.

c. That notional date will accrue if the employer does an act inconsistent with complying with the duty.

d. If the employer does not act inconsistently with the duty the notional date will accrue at a stage where it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee."

2.33 The EAT also considered the question of whether there can be a fresh duty to make reasonable adjustment once the original cause of action has been extinguished. In essence the EAT said sufficiently changed circumstances may found a new claim and whether that happens in a particular case will depend on its own facts.

2.34 The Claimant relies on the case of Olenloa v North West London Hospitals NHS Trust EAT 0559/01. There the tribunal found the claim out of time on the basis that the responded ceased to be under an obligation to make reasonable adjustments for the claimant when the claimant went on sick leave. The EAT held the tribunal had failed to make findings of fact about that claimant’s case that with adjustments he would have been able to return to work. However, if there is an ongoing omission to make an adjustment, it does not mean there has not been a triggering of the time limits. As was said in Cyprien v Bradford Grammar School

UKEAT/0306/12/DM

, there can be a continuing omission, but once three months passes from the date on which the tribunal determines on the facts that, if the employer had been acting reasonably he would have made the reasonable adjustments, the primary time limit expires (absent of course a further fresh failure as discussed in Fernandes). Constructive Unfair Dismissal

2.35 Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is dismissed by his employer if: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

2.36 Case law has established the following principles: (1) The employer must have committed a repudiatory breach of contract. A repudiatory breach is a significant breach going to the root of the contract. This is the abiding principle set out in Western Excavating v Sharp

[1978] ICR 221

. (2) A repudiatory breach can be a breach of the implied term that is within every contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Woods v WM Car Services (Peterborough) Ltd

[1981] IRLR 347

and Malik v Bank of Credit and Commerce International SA

1997 ICR 606

, HL.) (3) Whether an employer has committed a breach of that implied term must be judged objectively. It is not enough to show merely that an employer has behaved unreasonably. The line between serious unreasonableness and a breach is a fine one. A repudiatory breach does not occur simply because an employee feels or believes they have been unreasonably treated.

(4) The employee must leave, in part at least, because of the breach. However, the breach does not have to be the sole cause, there can be a combination of causes provided an effective cause for the resignation is the breach; the breach must have played a part (see Nottingham County Council v Meikle

[2005] ICR 1

and Wright v North Ayrshire Council

UKEAT/0017/13

(5) There can be a breach of the implied term of trust and confidence where the components relied upon are not individually repudiatory but which cumulatively consist of a breach of that implied term.

(6) In appropriate cases, a “last straw” doctrine can apply. This states that if the employer's act which was the proximate cause of an employee's resignation was not by itself a fundamental breach of contract the employee can rely upon the employer's course of conduct considered as whole in establishing she was constructively dismissed. However, London Borough of Waltham Forest v Omilaju

[2005] IRLR 35

tells us that the “last straw” must contribute, however slightly, to the breach of trust and confidence. The last straw cannot be an entirely innocuous act or be something which is utterly trivial. Moreover, the concepts of a course of conduct or an act in a series are not used in a precise or technical sense; the last act does not have to be of the same character as the earlier acts.

(7) In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

the Court of Appeal set out the questions that the tribunal must ask itself in a “last straw” case. These are: (a) What was the most recent act (or omission) on the part of the employer which the employee says caused or triggered his or her resignation? (b) Has he or she affirmed the contract since that act? (c) If not, was that act (or omission) by itself a repudiatory breach of contract? (d) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which viewed cumulatively amounted to a (repudiatory) breach. (e) Did the employee resign in response (or partly in response) to that breach?

(8) If the most recent conduct (or the matter pleaded as the “last straw”) is not, in the tribunal’s determination, capable of contributing to a breach of the implied term, the tribunal must then go back and consider whether earlier complaints constituted such a breach (and potentially if so whether affirmation is in play): Williams v Governing Body of Alderman Davies Church in Wales Primary School

UKEAT/0108/19

(9) Where the employer is in fundamental breach of contract the employee may elect to accept the breach as bringing the contract to an end or treat the contract as continuing and require the employer to continue to perform the contract. This is termed affirmation. Where the employee affirms they will lose the right to treat employer’s conduct as having brought the contract to an end unless there is further relevant conduct that revives the earlier breach(es). Affirmation may be express or may be implied/inferred from conduct.

(10) Mere delay in communicating a decision to accept the breach as bringing the contract to an end will not, in the absence of something amounting to express or implied affirmation, amount in itself to affirmation. But a prolonged or significant delay can potentially give rise to implied affirmation because of what happened during the period in question. In particular, if the employee acts in a way that is consistent only with the contract continuing, that may be liable to be treated as evidence of implied affirmation. Examples may be the employee proactively carrying out work duties, or the acceptance of significant performance by the employer by the way of payment of wages. However, if the employee communicates that she is considering and in some sense reserving her position, or makes attempts to seek to allow the other party some opportunity to put right the breach, before deciding what to do, then some performance of the job functions or the drawing of pay will not necessarily amount to affirmation. Each case turns on its own facts.

2.37 If it is established that the resignation meets the definition of a dismissal under section 95(1)(c), the employer has the burden of showing a potentially fair reason for dismissal before the general question of fairness arises under section 98(4).

[3]Findings of fact3.1 We do not need to make findings about every point in dispute between the parties; only those necessary to allow us to decide the Issues in the case. Where there is a dispute we made a decision applying the balance of probabilities.

3.2 The Claimant had worked for the Health Board since 2006. From September 2009 she worked as a Band 6 Staff Nurse in Paediatrics on the Pelican Ward, which is in the Children’s Hospital on the Respondent’s wider Heath Hospital site in Cardiff. Pelican Ward cares for paediatric cardiac and renal patients, and the Claimant has specialist paediatric renal nursing skills.

3.3 The Claimant’s evidence is that from around September 2019 she became concerned about staffing on the Pelican Ward and the effects on the care and workload for nurses. The Claimant’s line manager was RP who in 2019 became Ward Manager for three wards: Pelican, Island and Jungle. (Jungle Ward was later closed in the Covid pandemic.) RP had extensive responsibilities at the time with responsibility for the day to day running of the wards as well as line management responsibilities for 85-90 staff. RP’s responsibilities included having oversight of staff rosters, ensuring adequate staff to patient ratios were maintained and, where this was not possible, to ensure cover was in placed or negotiate the closing of beds to maintain the safety of patients and staff. Part of her role included attending daily “huddles” where the staffing and patient demand of the whole hospital was discussed between all the Ward Managers, the senior and lead nurses and the patient flow co-ordinator. At the “huddles” decisions had to be made to mitigate as much risk as possible across the whole site.

3.4 Pelican Ward at the time had two nursing staff day and night but also for some day shifts had an additional nursing resource. However, that individual was absent on sick leave for long periods of time. The ward had 8 physical beds but only 6 commissioned beds, designed to work on a 1 to 3 nurse to patient ratio. When RP became Ward Manager in 2019 there was also a further anticipated staffing difficulty in that the ward was generally staffed by long term, experienced, skilled Band 6 nurses, but a group of these nurses were approaching retirement age and were planning to retire within 18 months of each other. RP spoke with her senior nurse about this when RP was appointed because of the need to succession plan, and the potential for difficulties. Jobs could not be advertised until they had the individuals’ retirement notices, the NHS recruitment process is long, and it was known that attracting staff with specialty in cardiac and renal nursing was not easy. It was not possible to simply recruit Band 6 nurses to replace the retiring nurses, because new appointees would need to be trained to nurse renal patients for dialysis and the like. Some plans were made, including looking for staff that may want to temporarily relocate into the ward from other wards.

3.5 The Claimant’s evidence is that she felt the nursing workload became impossible to manage because there were too many complex specialist patients requiring care and support with an inadequate balancing of nursing staff to meet those needs. The Claimant’s evidence is that there were too many nurses who were newly qualified, or not sufficiently skilled, or had never worked on the Pelican Ward which needed specialist skills. RP’s evidence was that, as just stated, it was known there would be a period with a skill shortage that she and others were doing their best to ameliorate. RP says that she would generally chat with staff about what was happening with staffing and that generally staff appreciated the impossibility of recruiting replacement, skilled band 6 nurses. RP describes the Claimant as being very concerned about who would be recruited, and that the Claimant tended to heavily criticise the people who came in to cover who were trying their best. RP describes the Claimant as being clear that this period of transition time would make the Claimant’s life harder. RP describes the rest of the team as being more understanding that RP was doing something about it, but there would be a tough transition period. She says it was possible, for example, for the Claimant to nurse the dialysis patients on the ward and for the less qualified staff to nurse the other patients on the ward. 3.5 On 23 September 2019 the Claimant sent an email found at [76-77] which does not identify who it was sent too. We do not know why we do not have the email setting out the recipients. The email is addressed to “Dear All” and continues: “Just an update on the bed situation on Pelican Ward over the weekend.” The email went on to cover various matters including that nursing management had been aware of there being four babies requiring highflow. The Claimant said that the level of care of four babies on high flow was too much for two Pelican staff to manage safely and left patients vulnerable. She said one of those respiratory patients had been moved to the neighbouring Island Ward on the Saturday afternoon to make Pelican safer, and to accommodate an incoming renal patient. But the Claimant expressed concern that there was soon to be a full ward of busy patients and a baby returning daily for IV antibiotics, which was acceptable when there were three staff on shift but not for two nursing staff. The Claimant said: “Staff feel that it has been unacceptable to have so many high care long term respiratory patients on Pelican recently.” She said that it was ok to house such patients during quieter periods, but they had been faced with a reluctance from the general medical ward to take over the respiratory patient care to enable Pelican to accept their own cohort of patients. She said so many high care patients put a larger strain on the two nurses on Pelican. The Claimant accepted that the Children’s hospital had been very full over the weekend with a big demand on beds. She said: “I just wanted to make you all aware of the current situation. We could perhaps do with some support at your level to enable us to manage Pelican ward safely.”

3.6 In essence the Claimant was expressing concerns the bed situation on Pelican ward that weekend, and about having too many high level patients for the two nursing staff on Pelican, which she said could compromise safety and put nurses under strain. But it was also a concern about the type of patient that was being housed on Pelican (such as respiratory patients) because it also affected the ability of the ward to accept their own intended cohort of patients.

3.7 We have a reply from a consultant, Judith VanDerVoort at [76] who replied, on the face of it, only directly to the Claimant and expressed sympathy, commenting that managing very complex HDU-type patients on a smaller ward staffed by three nurses, or two nurses on a weekend or nights, was putting a lot more strain on those nurses compared to a bigger ward. Dr VanDerVoort commented that there may have been a bed crisis that Pelican should help with, but generally it was difficult to understand how putting four high flow patients on a ward and then effectively closing that ward for any new admission (including Pelican’s own long term patients) was a good idea. Dr VanDerVoort asked what the Claimant would like them to do to help, saying: “Can we share this email with the managers? Do we need a meeting with the managers? No doubt they are in very difficult positions too and it might help to understand the problem from their viewpoint”

3.8 The Claimant said these nursing concerns should have been responded to by nursing management. RP said in evidence said she may have seen this particular email but could not be certain.

3.9 On the balance of probabilities we are not satisfied on the evidence before us that this particular email was actually sent to RP /the nursing team as opposed to being sent to, for example, the consultant team. We have not been given the recipient details and that it was sent to the consultant team (who the Claimant describes as being generally sympathetic to her concerns) is a more likely fit with the wording of the email itself, which reads as the Claimant making them aware of the situation at the time, and seeking support at their level. Further Dr VanDerVoort’s response, in asking whether the email could be shared with managers, tends to suggest at that point in time it had not been.

3.10 We also note that this email from September 2019 is not suggestive of staffing concerns having an impact on the Claimant’s health at the time.

3.11 On 17 January 2020 the Claimant sent a forthright email to RP and other managers about staffing on the Pelican ward [78-79]. The email said: “Just to let you know that we seem to be going round in circles with regard to staffing on Pelican Ward.” The Claimant said on the night of 16 January another nurse had been left on her own with two patients, and on 17 January, the Claimant had been left on her own for two periods with two patients between 7am to 9am and 5pm to 7pm. The Claimant said: “We understand your reluctance at having general patients occupy beds on Pelican if this delays admission of renal/cardiac patients, however from a safety standpoint it is much safer to admit general patient to Pelican during quieter period than for senior nurses to move a member of our nursing team to cover elsewhere. Due to every ward being under pressure this is the consequence of not admitting general patients to Pelican ward when we have capacity. As a nurse left alone on Pelican you are vulnerable; it is unsafe. And we are putting our patients at risk. It will be our nursing registration that is compromised if something untoward happens. Island ward is geographically close but they provide minimal support to us owing to their own nursing/staffing responsibilities. I do not understand why this is so difficult to comprehend. We seem to have the same conversation year after year. Where do we go from here? Do we as a nursing team involve Unison/RCN?”

3.12 On 17 January 2020 a Dirk Wilson replied to the Claimant [80] and we understand him to be one of the consultants. He said there should be Datix entries and a request to meet with the nursing leadership team and he and Shiv would be happy to attend. On 20 January 2020 the Claimant submitted a Datix about the same matter [86-89]. The Claimant wrote “consultants informed, Line manager aware.”

3.13 On 8 March 2020 RP completed an entry on the Datix (having been asked for comment on 17 February 2020) to say: “decision made to ensure safety of entire NACHfW, acknowledge this is done at risk. Pelican and Island are encouraged to work as a team and this has been reiterated to staff.”

3.14 The cause of the problem on this occasion appears to have been staff shortages elsewhere, with the decision made to move a Pelican nurse out to cover elsewhere because Pelican was quieter at the time, but which resulted at times with nurses on Pelican working alone. From nursing management’s perspective it was seen, in difficult circumstances, that was the greater resourcing need. There was a plan in place for Pelican and Island wards to work together, when needed, to ensure cover. The Claimant was clearly aware of that plan at the time because of her comment that in practice Island ward provided minimal cover because of their own responsibilities.

3.15 KM, at the time the Lead Nurse for the Children’s Hospital for Wales, gave evidence was that it was possible for Island and Pelican nurses to help each other out, and was possible in practice and routinely occurred. It was put to her that the Claimant’s evidence was clear there were times when Pelican was left short. KM said they were staffed according to the acuity of demand, with not always with the perfect ratio, but that was not unique to one part of the hospital. KM said the response rate may have been slower than the Claimant would like but it was without compromising the safety of patients.

3.16 RP’s evidence in her witness statement on this point is confused and confusing because it refers to sickness records but they are from a different year. Also RP says she did not believe the Claimant had put in a Datix, but the Datix itself shows her responding. But RP does say there were hardly any cardiac and renal patients in and that whilst it was not best practice, that one nurse and one health support worker had been left with two or possibly three patients. Of greater assistance is what RP said in the subsequent grievance investigation [685]. RP said then that the incidents where staff were left with two patients had been done with calculated risk, and with long discussions with senior staff to take that risk. RP said there had been a lot of pushback from consultants at that time about accepting general patients on to the ward which would have justified having two nurses on the ward. RP said it was in the pipeline, but they needed support from consultants. RP said in the grievance investigation that the step to put general patients on the ward had been taken as a longer term move, which made it safer for staff. RP said in the grievance investigation that had been communicated verbally to staff. We consider it likely that the Claimant was indeed aware of the need to get buy in from consultants to accept general patients on to the ward, that would ease the risk of being left with a single nurse on Pelican ward, because it reflects what the Claimant said herself in her email of 17 January 2020. Further, the email reads as the Claimant, at least in part, in fact seeking to persuade the consultants to accept general patients on to the ward.

3.17 We do not consider the email is indicative of the Claimant suffering with her mental health as a result of the staffing issue she was raising at the time. We also do not consider it can be said that there was a failure by RP or management to respond to the Claimant (and indeed the consultant team did too). The Claimant knew of the need to get the consultant team to buy in to taking general patients on the ward. She knew that if a nurse had to be moved elsewhere in the hospital if Pelican ward was quieter, that the plan was for Island ward to provide cover when needed. RP confirms in her Datix response that she also reiterated this arrangement. The Claimant in her witness statement says in fact that her criticism here is that she did not consider that working with Island ward was the appropriate solution. We return to this point below.

3.18 It is also important to record here that in early 2020 the Covid 19 pandemic started. The Claimant’s subsequent email of July 2020 refers to being better staffed through much of lockdown from a Pelican ward perspective.

3.19 On 7 May 2020 the Claimant emailed RP [90] following a conversation about the potential to become a foster respite carer for AT. AT at the time was a young looked after child with complex medical needs. AT had been in hospital for over a year with no family. The Claimant wanted to train as a respite foster carer for AT. The Claimant said in her email to RP that following discussions with social services it was not financially viable for her to foster AT full time, and also with the level of care involved it would be better suited to a two person foster team, hence taking the respite foster carer route. The Claimant said respite care would be likely to be one week and a few weekends a year. She needed approval from the Respondent because she would need time off work to care for AT, and also because there was a potential conflict of interest when AT was on the ward because the Claimant could be caring for AT on the ward and providing respite care. The Claimant in her email said she thought measures could be put in place on the ward to facilitate the maintaining of professional boundaries with AT and AT’s foster family.

3.20 The Claimant chased RP. RP responded on 26 June 2020 [93] thanking the Claimant for her patience and apologising for the delay. RP said she had spoken to KM and did not see a problem with progressing the proposal. RP thought the Claimant needed to complete a declaration of interest form and a second employment form. RP says it took 6 to 7 weeks to respond to the Claimant because she needed to discuss it with KM and because of Covid working demands. The Claimant then successfully applied to become a respite foster carer for AT.

3.21 On 27 July 2020 the Claimant emailed the consultants, RP and others headed “staffing crisis”. She wrote: “Dear all, I just wanted to make you all aware of Pelican’s pending staffing crisis.” The Claimant referred to a high proportion of staff who were pregnant or on maternity leave (such staff also impacted by Covid restrictions), they were losing a Band 5 member of team in the September, one staff member was on long term sick, and they were losing a Band 6 to retirement in November. The Claimant said one nurse had moved across to work alongside the Cardiac liaison nurses, and another had joined the hemodialysis team. The Claimant said: “Rhianydd and senior management area aware of the upcoming staff movement, retirement and maternity leave, and are working to breach the gap and fill the vacancies. As a team we just wanted to make you all aware of our concerns. Even if staffing numbers are replaced, in an already small team this will have a huge impact on the skill mix on the ward. In turn this will have a knock on effect when managing acutely unwell renal and cardiac patients and dialysis patients, especially during the period Nov 2020 – Jan 2021. The ward has been very busy for much of this year, and there is additional concern regarding being able to provide adequate support to new nurses working on Pelican. Despite being better staffed throughout much of lockdown more recently we have seen the return of management leaving one nurse on Pelican ward.” The Claimant then gave some specific examples of the week of 12 July 2020. She said: “Again we would like to highlight how unsafe this practice is for both ourselves and our patients. Pelican does not work as an extension of Island Ward. They are themselves not well staffed and cannot provide support to Pelican staff.”

3.22 Dr VanDerVoort replied to thank the Claimant and asked how best to help the Claimant and the team. Dr Wilson emailed to say he was aware of the situation and thanked the nursing staff. A Dr Hegde emailed a Becci Ingram thanking her for agreeing to look into the nursing staff crisis, that there was only one nurse on the day shift the weekend of 1 and 2 August, and saying they were managing with two on shift (the ideal being 3) but with one on the shop floor it was hard to care for existing patients or give necessary breaks. Dr Hegde said under the circumstances it was clinically unsafe to consider admitting chronic patients on dialysis/any new patients and they would have no choice other than to refer patients elsewhere. Dr Hegde said they needed a reliable long-term strategy to minimise the effects of /prevent similar crisis. A Mary Glover intervened on 30 July to say they were aware of the situation on Pelican and RP and KM and the senior nursing team were working hard to find solutions for the situation, saying that, for example, the band 6 posts have already been advertised. The Claimant was copied into this exchange.

3.23 There were then further emails that the Claimant was no longer copied into. On 30 July 2020 Dr Graham Smith emailed KM and others, when RP was on holiday, to express concerns about a number of occasions in the previous few weeks where there had been just one nurse looking after up to 4 patients. Dr Smith said the ratio of 1 nurse to 3 patients might be the norm but did not work in a small ward like Pelican. He said that when the nursing requirement was last discussed two trained nurses and a nursing auxiliary were needed. He identified gaps in the roster where there was only one nurse rostered and said that the problems were going to get worse in the longer term. He sought an urgent meeting. Mary Glover replied to say as a senior nursing team they were well aware of the shortages on the ward compounded by short term sickness and were making every effort to cover the shortages. On 3 August KM said: “I have spoken to Rhi on Island today and have ensured there is adequate cover over the next two weeks”, and that the current staffing pressures had been exacerbated by a number of secondments taking staff off Pelican to cover specialist roles and a high number of staff on maternity leave. KM said two new Band 5 nurses had been employed, one would allow a nurse on secondment to return to Pelican, another new nurse was to start on Pelican and another member of staff from Island was being moved to the ward [101].

3.24 RP said in the subsequent grievance investigation that what the Claimant said in her emails was accurate, and the staffing issues were being addressed. She said the situation was not hidden from the team, that staff from other teams would come over to support, and she had conversations with staff over a number of shifts about intentions. RP said she had also been asking staff if they knew of other staff that wanted to come over to or return to Pelican ward.

3.25 The Claimant in her own email had acknowledged that RP was aware of the situation and was taking steps to bridge the gap. We therefore do not accept that the Claimant was unaware of the nursing management plans in terms of staffing levels. We also do not find it was the case that the Claimant’s email was not responded to by management; she was included in the first part of the email chain, including Mary Glover’s email about the advertising of the Band 6 posts. We also accept RP’s wider evidence that the Claimant knew of the long term recruitment plans, but likewise there may be a more difficult transition period. Indeed, the Claimant in her own email referred to concern about being able to support new nurses on Pelican. We also note that the Claimant was continuing to express dissatisfaction with the plan that Island ward should provide cover if nursing levels dropped to one nurse, a point to which we return below. We also note that the Claimant again, whilst obviously expressing her dissatisfaction and concerns about arrangements, did not refer to particular mental health symptoms at the time.

3.26 On 15 November 2020 the Claimant submitted a Datix [107] about inadequate staffing on Pelican over the weekend. The Claimant said a Pelican nurse was needed on intensive care to provide dialysis support to a patient, and Pelican was left with one nurse to 5 patients with no help when the Claimant was in PCCU for approximately 2 hours. The Claimant reported she had been told Island ward would provide cover, but it was not possible. She said that inadequate cover was unsafe, and left staff and patients vulnerable. On 2 December 2020 RP commented on the Datix that no further cover had been available for Pelican for the shifts, and the plan had been made on Friday for Island to cover if needed for the duration of the need to attend the PCCU. RP wrote that the plan was dependent on several factors and was the best way to spread risk across the hospital. She said the final decision was taken by the nurse in charge and senior nurse on the shifts. RP also wrote on the Datix that she had fed back to the incident reporter. We heard very little evidence about this incident. But based on the Datix we noted that it was not the Claimant who had been left as the sole nurse on Pelican, and also that the document records that RP had fed back to the Claimant about the incident. We also noted that there had been cover arrangements in place, but on that particular occasion, despite the plan, it appeared the cover from Island had fallen through.

3.27 On 29 November 2020 (an email added to the hearing file in the course of the hearing) the Claimant emailed RP saying she was sorry she was not able to talk to RP on Friday and: “I do find it hard, as do I find working on Pelican at the minute. I feel like there is no end in sight and that we are papering over the cracks.” The Claimant said she had raised concerns with RP about always working with junior staff, and that they were feeling overwhelmed and under supported. The Claimant said the weekend was uncovered as 3 senior nurses had swapped shifts to attend study days together. She referred to a mentee being removed from her with no communication. She said “this low level bullying, overall control and manipulation is as bad as ever” and that she had hoped that by discussing these problems with RP, senior staff would be less able to control things to suit themselves but at present she saw no change. The Claimant said she did not know where to go from there and was struggling. The Claimant said the Christmas shift allocation was unfair as she had been given Christmas Eve night, Christmas Day night and New Year Eve’s day. The Claimant said she had only worked one night shift all year, with that suiting her and the majority of Band 6’s preferring to work nights. The Claimant asked RP to respond to her concerns. RP replied on 30 November, apologising that Friday had been a crazy day and said: “I am taking what you have said very seriously and please believe me I am not sweeping this away and it is as much a priority to me as any other item on my list. I have arranged the Ward and Band 6 meeting for the 9th December and these concerns as we discussed are already on the agenda. I am a little in and out over the next week due to my daughter isolating but will have a chat as soon as we can.”

3.28 RP’s evidence was that the Claimant had raised concerns with her about other members of staff who were cliquey, and the Claimant did not care for the way the staff talked to the Claimant. RP said that the Claimant did not raise it as a formal complaint, and that she had a conversation with other members of staff without naming the Claimant, about the Health Board values and about including everybody. RP says she told the Claimant that if the Claimant were to formalise the complaint then RP could do more. RP’s evidence is that the Claimant made other comments in conversation about others on the ward, but continued to refuse to put the complaints in writing and make it formal process. RP also spoke with her senior nurse who agreed that without a formal process they could not do more than have a conversation with staff. We accept RP’s evidence in this regard. It accords with the email exchange of 29 and 30 November 2020.

3.29 In February 2021 the Claimant emailed RP saying that at that time she was providing respite care for AT approximately every 6 weeks. The Claimant requested two periods of unpaid leave as AT’s family were planning to take two holiday breaks [111].

3.30 In early July 2021 further staffing concerns were raised, not by the Claimant but by Dr VanDerVoort. Dr VanDerVoort expressed concerns about staffing levels and staffing morale. Dr VanDerVoort suggested the psychologist may be able to help. Dr VanDerVoort expressed more concerns at the end of July [113] about staffing levels and morale on Pelican ward, with gaps on the roster, complex patients and the difficulties for existing nurses having to work with unfamiliar nurses. She expressed fear they would lose more nurses. She did not name the Claimant, or any particular nurse. On 12 August Dr VanDerVoort reported that a clinical incident happened on Pelican ward with a delay in delivering antibiotics to a patient (this did not relate to the Claimant). KH, Senior Nurse, replied to say the day it happened was exceptionally busy throughout the hospital and with the acuity on Pelican they had capped the available beds to 5, but then there was no choice other than to admit the patient on to Pelican due there being no other available bed throughout the hospital, with babies being transferred to other hospitals, staff from oncology helping to care for children on PCCU, no medical or surgical beds and an outbreak of norovirus. KH said they were aware of ongoing issues on Pelican and working to improve the situation. KH explained that Andrea Williams [AW] had been relocated as Band 6 to help with the day to day management, and they had further plans to review staffing levels again. KH explained every area in the hospital was finding staff numbers challenging due to having to wait for new staff to qualify to start in the hospital, which had been delayed due to universities being delayed due to Covid. Dr VanDerVoort acknowledged the pressures and problem, and said she was concerned about the wellbeing of nurses on Pelican. KH replied again [124] to say AW had come across as an experienced band 6 and an additional nurse from Island had started that week and further planning meetings were also due to take place.

3.31 On 1 September 2021 KM emailed RP and a Rhian Pearson about a meeting to discuss rosters to reduce risk in Pelican. On 7 September Dr Hegde emailed to say the situation was dire on Pelican the day before with one nurse in radiology with a general patient and one nurse managing all the patients on the ward with one health care support worker. He said it was risky, the nurses had not had time to eat anything for hours and appeared so stressed and worried. He expressed concerns whether it was a clinically safe situation. On 8 September RP emailed Dr Hegde to say she shared his concerns about morale, wellbeing, and workload and that she had begun to address it long ago, beginning work with Avril prior to Avril’s retirement, and being aware of others approaching retirement. RP said 3 full time nurses had been added to the roster from Island including AW. RP explained she had 3.24WTE staff on maternity leave and there would be a difference in the longer term with their return. She said they had added a healthcare worker per shift for the foreseeable future. RP said that the nurse left on the ward on the Monday had not made anyone aware that the other member of staff was off ward for a prolonged amount of time, and that either RP or the practice educator would have been able to come and offer support or help with breaks if they had been made aware. RP said that this had always been the case and had been communicated to staff many times. She said the beds had also been closed down to four because of the needs of a particular patient. KH also replied to refer to the plan for RP and Rhian Pearson to look at staffing on Pelican and the Children’s Kidney Centre but it was likely to mean compromises and difficult decisions. KH said she was happy to meet with any staff to discuss concerns at any time.

3.32 On 7 September 2021 the Claimant emailed RP saying: “I have spent the morning so distressed at the current situation on Pelican. A situation that has had the most negative effect on me for too long. I made you aware of the pending staffing crisis but what I did not appreciate was the impact that it would have on those left on Pelican. I feel unsupported by management. A totally invisible structure and one that chooses not to communicate with us and therefore not to listen to us. The essence of nursing. I feel continually both physically and emotionally overwhelmed in work, by a work load that is impossible to manage. Too many complex, specialist patients requiring care and support with an inappropriate balance of nursing staff. Counterparts that are newly qualified, not sufficiently skilled, have never worked on Pelican and with an individual who perhaps we have supported and carried for too long…I cannot remember the last day I had off sick and am the only individual who has had no sick leave during the last two years on Pelican working during Covid and this staffing crisis. Perhaps this is how other individuals cope? I struggle to take time off but I am going to self certify for a week. I have annual leave after this. I will speak to my GP if you require. Being left on my own yesterday for three and a half hours with four patients, complex as they are, is my breaking point. Learning that you are depleting us further earmarking staff to manage HDU suggests that no one is listening. Pelican requires competent skilled staff to be able to manage this group of patients. I have been contacted four times at home in the last two weeks by inexperienced staff, once at 5:30 and once after 22.00hrs. I will always support them if I can but I am not on call. Please would you consider this a formal request to reduce my hours to 24 for three months. I recall you saying this is the maximum amount of time I could do this for without losing my job. This is something I can ill afford but I cannot see another way forward at present.”

3.33 It is evident from this that there must have been an earlier discussion between the Claimant and RP about the potential to reduce working hours. RP said in evidence it was never the case the Claimant had been told she would lose her job, but that RP had said after in effect a 3 month trial period it might be difficult to return to original hours. We accept that explanation; it makes far more sense that the Claimant being told she would lose her job.

3.34 The Claimant therefore took a week of self certified sick leave and then had 2 weeks annual leave she had already booked.

3.35 On 21 September 2021 RP sent the Claimant a whats app saying she hoped the Claimant had some time to reset, she was wondering how the Claimant was getting on and said she should be in the office shortly if the Claimant wanted a chat [135].

3.36 On 24 September the Claimant had a whats app exchange with AW, the Deputy Ward Manager [136]. The Claimant said she would be back in the following Tuesday but did not know what the best thing was to do to feel better. She said coming back to work filled her with dread but taking more time off also changed nothing as it would be no different coming back then. AW said it was nice at the moment, and she thought they were working together a lot. The Claimant said working with familiar faces would be a start, but also later added that she did not feel any better having had three weeks off, and thinking about work just made her cry. She said the rest of her life was going so well, so she would see how Tuesday went. The Claimant did then return to work.

3.37 The Claimant in paragraph 17 of her witness statement confirms that she then had a return to work interview and that RP discussed the email of 7 September. The Claimant writes that RP also told the Claimant to stop goading people and wondered if the Claimant was well enough to return to work. We heard no more evidence about this from any witness and are therefore unable to make any findings about what the apparent reference to goading is about. We also do not have any detail in general about what was said at that meeting other than there was a discussion about the email of 7 September. RP’s witness statement does not deal with 2021 at all.

3.38 The Claimant’s request to reduce her hours was not advanced at that time. RP said in oral evidence that she had a conversation with the Claimant about when the Claimant wanted to do it from, and the Claimant did not come back with a date. At the grievance investigation [686] RP also spoke about offering the Claimant the three month trial. She also said that it took longer than it should have to drop the Claimant’s hours, that on the off duty they offered to take the Claimant off 2 shifts but the Claimant did not want to do it at that time, and there were times the Claimant was offered verbally to drop hours but the Claimant declined.

3.39 On 31 December 2021 the Claimant emailed RP asking or 1 or 2 weeks unpaid annual leave again that year to provide respite care for AT, one week of which she hoped to be at the end of April. On 4 January 2022 the Claimant asked AW to approve it in place of RP, and AW replied to say she could not see it being an issue, to put it on the roster, and AW would speak with RP.

3.40 On 2 June 2022 there was an occasion when the Claimant was moved to work away from Pelican Ward because AT had been admitted. It prompted the Claimant to send the email at [198] to KH and others complaining about being moved off Pelican, and that AT’s foster mum had to set up the dialysis in the Claimant’s absence; saying the foster mother should have been able to have a break. The Claimant questioned whether the move had been driven by individuals who had never understood her desire to help keep AT in a stable loving family and asked what the actual concern was. She said: “If this is how you intend to proceed in the future, I will be clear that if there is a skills gap left on Pelican when I have been moved that I will not be forthcoming in supporting the ward. I wont tolerate you moving me when it suits and not when it doesn’t.” We heard in evidence that the Claimant did refuse to return to do an ECG on a baby. KM replied to say the decision was made in the best interest of patients and the Claimant’s own professional registration. KM said she was very concerned about the tone of the email and the indication about not supporting the ward and said they would meet up to discuss [199].

3.41 In July 2022 it was raised that AT’s foster care placement was at risk of breaking down, and the consultant raised the prospect of AT receiving some respite care in hospital. RP replied to say she was happy to discuss this but had reservations because AT’s care was social services responsibility and there remained infection risks in hospital. KH made similar observations, adding that use of a bed for respite could result in cancelled surgeries and delayed treatment for other children. AT’s doctor said the alternative would be, if the foster placement failed, AT living permanently on Pelican again. He said he was going to offer it initially as a one off whilst they reviewed what can be offered moving forward and that meetings, including a multi disciplinary meeting, were being arranged.

3.42 On or around 18 July 2022 the Claimant noticed her name had appeared on the roster next to night shifts and no one had spoken to her about it beforehand. It was 4 nights out of 7 shifts and was not something she had done very much of in the previous 10 years, and she was also rostered to work on her own. The Claimant said in evidence it generated considerable anxiety for her. RP said in evidence that her deputy wrote the rosters not RP, and that the Claimant had not worked night shifts for so long because some of those retiring had liked doing them. RP said historically they could swap shifts, but that with those staff retiring there was a skills shortage on night shifts. For example, there could be a need to dialyse a patient or troubleshoot if a patient rang in with a problem. RP said the Claimant spoke about night shifts affecting her, and that RP suggested trying to do a couple together with days off to recover or spread them out. RP says she told the Claimant she did not expect the Claimant to do 50% nights, but that the Claimant was expected to do some and that people needed to pull together to get through the difficult time when they did not have enough skill on the ward. RP said in evidence she did have someone who only wanted to work nights but she needed that individual to work some day shifts for training, to experience the culture of the day shift, and see the practice development nurse during the day.

3.43 On 19 July the Claimant emailed RP asking to be referred to OH about her dread of working nights [221] as discussed the previous day. The Claimant said she had worked a very occasional night in the last 10 years, but it was very different to the forthcoming 4 night shifts out of 7 shifts and she found them so debilitating to work and her recovery afterwards was awful. She said they filled her with worry and anxiety and: “I really want to remain in my job but wont be able to manage this scenario. Please can you help me”. RP replied to say she would refer the Claimant to OH as discussed and had asked Lianne to action it. RP asked if the Claimant could possibly look to cover any of the shifts that were short as a possible solution for that month [221]. The Claimant says she took herself off the night shift and covered the days, but was then approached by Suzanne Davies and given no choice but to go back on the night shifts.

3.44 Later on 30 August 2022, RP emailed KH about the Claimant and night shifts, commenting that it was a “problem” she had inherited when taking over. RP told KH she had a brief conversation with the Claimant very early on in RP’s post when she told the Claimant working nights were part of her contract but at that time when the Claimant was allocated the shifts the Claimant was able to swap them with the staff who had since retired. RP explained in this email to KH that the August 2022 shifts had been very difficult for Lianne to cover because Lianne needed to attend training and annual leave was being maximised as it was summer. RP said the Claimant had removed herself from a shift leaving no cover, and that RP spoke to the Claimant on a Thursday to tell her she needed to put herself back on the shift as there was an expectation to work nights under her contract. RP reported that the Claimant got very tearful and said she had only worked a handful of night shifts in 10 years, was very stressed by night shifts, does not like them and takes a few days to recover fully. RP said she had empathised but also said that there was a 24/7 service to cover, the Claimant had been lucky to not work them, and that the Claimant should put herself back on the shift and to seek swaps for the night shifts. RP said that Suzanne Davies contacted her the next day, and had spoken to the Claimant again and reiterated the message and the Claimant had been placed back on a night shift. RP said a message had been put on the ward whats app to see if anyone wanted to swap shifts.

3.45 On 26 July 2022 the Claimant emailed [224] RP saying: “I think as a starter to make my working life better I’d like to reduce my working hours to 24 hrs per week. I’m not overwhelmed or stressed in any other aspect of my life but the pressure on Pelican is too much. It has been too awful for too long and it is not sustainable. Managing with inadequate workforce for years, constantly working with individuals you don’t know and who don’t have the necessary skills to manage all patients on Pelican leaves me feeling under too much pressure. Pressure to manage the complex patients, oversee the nurse unfamiliar with Pelican and her patients. Continuing to have one staff member on shift with four patients is wholly inappropriate, dangerous and protects neither us or our patients. We seem to have the same conversations over and over and I genuinely don’t understand how you can justify managing us like that. I know I am not alone in my thinking. The band fives are equally struggling feeling wholly unprepared and inexperienced to manage the ward. Allocating me nights after I have not worked them for many years is perhaps the final straw. I simply cant do them. Reducing my hours is not a knee jerk reaction though. Something has to give. Please could you consider this request.”

3.46 On 1 August the Claimant sent RP a whats app saying she understood Liane was starting the next off duty the following day and the Claimant was hoping to drop her hours from September on that new off duty. The Claimant said: “I want to stay in work but am finding it really difficult and believe this might be the best option for me and my state of mind.” The whatsapp was read by RP on 2 August 2022.

3.47 The Claimant worked a night shift on 4 August. On 8 August the Claimant emailed RP saying she had met with AT’s social workers that day and it seemed AT’s current family had given an end date of 1 September. The Claimant asked RP to consider a request for special leave from that date to enable the Claimant to take AT full time and buy social services time to find AT a permanent family [231]. RP did not reply at that time. RP says in her statement that she was out of the office at the time although accepted in evidence that this in fact was probably not the case and the out of office in fact applied to a 19 August email.

3.48 On 14 August the Claimant started a period of sick leave signed off until 15 September with workplace stress.

3.49 The Claimant sent an email on 19 August to RP and KH, then getting RP’s out of office reply. The Claimant attached a special leave application form, asking for special leave from 4 September to 17 September and a covering email asking for special leave from 4 September. The Claimant said it was not feasible to take AT full time, but she would be able to provide shared care with the hospital to provide some stability and keep AT out of hospital as much as possible [236]. The Claimant did not mention that she was absent on sick leave in her email.

3.50 The reduction in the Claimant’s hours was implemented on or around 20 or 21 August 2022. The Claimant’s evidence is that the reduction in hours she had requested was eventually agreed but only implemented after she started her long term sickness absence. She said she did not recall RP being on leave or RP apologising for the delay in dealing with her request. The Claimant also said there was never any conversation about dropping shifts off the rota and it would never happen as the ward was so short staffed. RP says in her witness statement that a whats app was not a formal way to apply for a contractual change, but we note the Claimant had of course also sent RP an email. RP also says that due to annual leave during this time she did not process it and holds her hands up to that. RP says she did have conversations with the Claimant about the Claimant having to make a formal request, although RP then in fact did process it without a further formal application. RP says she was also having conversations with the Claimant about not having to work more night shifts on 30 hours than the Claimant would on 24 hours. RP says she also said to the Claimant she would do a temporary reduction for 3 months to see if the Claimant liked it. RP says that the third time the Claimant made a request, and the last conversation RP had with the Claimant, the Claimant said she definitely wanted to reduce her hours. RP said in evidence, which we accept, that RP also felt if the Claimant had the reduction the Claimant wanted, it might help the Claimant come back to work. RP said there was no anticipation the Claimant would be off sick for an extended period of time.

3.51 On 22 August 2022 KH emailed the Claimant acknowledging that AT had very specific needs, that finding a new foster carer will be challenging, that the Claimant taking special leave may help with the situation, and that the Claimant had established an important relationship with the child. KH acknowledged that they had informally discussed it previously as a potential option when KH had said to talk to RP to see if it was feasible. But KH said that there was a significant issue covering Pelican with staff at the moment which had been further compounded by a high level of sickness and therefore regretfully the request could not be supported at that time [237]. KH says at the time of sending this email she did not know the Claimant was on sick leave. The Claimant believes KH would have known this because the ward knew she was off sick, and KH was in charge at the time as RP was on holiday. We accept KH’s evidence that she did not know at the time that the Claimant was on sick leave. It accords with the exchange KH had with the Claimant about the potential for the Claimant to take special leave, and also KH’s comments about staffing issues on Pelican being compounded by a high level of sickness. We do not consider KH would have written her email in the way that she did if KH knew that the Claimant was off sick. The staffing rotas in the bundle also demonstrate the staff shortages that there were, suggesting that in fact the ward may have ended up being closed in the week of 22 August.

3.52 The Claimant sought advice from HR [245], saying she had been signed off work for 3 weeks because her work had become unmanageable. The Claimant said she worked as a respite foster carer alongside her NHS role, and that as it was not a source of worry and stress, her GP was happy for her to continue in that role whilst signed off from her main role. The Claimant said she wanted to clarify her employer was happy to support the GP recommendation. The Claimant explained she had requested two weeks unpaid special leave to help support a looked after child in her care who would be effectively be homeless for a 2 week period, and that it had been rejected. The Claimant asked if she in fact had needed to apply for special leave, saying she would not be having AT full time. The Claimant also said that weeks prior to being signed off sick she had reduced her working hours in a vain attempt to keep herself in work. She said that she now realised that time away was the only thing that would be of any benefit, and asked if it was possible to increase her hours again in the period of sick leave. People Services/HR replied [246] said that they did not see an issue with the Claimant continuing to foster or that the Health Board was in a position to stop that, but that if she was being paid for the fostering she should be open with management. HR said there was no specific policy for time off for fostering, special leave was meant to be used for unexpected emergencies, and managers would have the discretion to decline a period of unpaid leave due to staffing. HR said they believed increasing hours again could only be implemented on the Claimant’s return to work. The Claimant was asked if HR could link in with her managers to schedule a meeting to discuss work related stress and if there were ways to support a return to work [246].

3.53 On 23 August the Claimant emailed KH saying she had sought advice from HR and the RCN. She said the Managing Attendance at Work Policy did not prohibit her from doing additional work whilst on sick leave but did require her to gain written consent to do so. She said her GP supported the action and that, as the roles were so different, fostering could be viewed as therapeutic and would not be detrimental to the Claimant’s own recovery and return to work. The Claimant said it was in AT’s best interests to be with a familiar face, and it was inappropriate for AT to otherwise spend 3 weeks unnecessarily in hospital. She said a shared plan of care with Pelican would be the most idea solution. She said she was not sure if fostering in fact counted as a second job as she only received nominal payments to cover costs, but for the two week period was willing to forgo that and support AT on a purely voluntary basis. The Claimant therefore asked KH for written content to help care for AT [244].

3.54 KH replied on 25 August [247] to say she had spoken to SR from HR saying: “He was unaware of the significant medical needs that AT has and that her care needs are similar to the patients for which you provide care to whilst being in work. Unfortunately this changes the context upon which you were offered advice. I appreciate you feel strongly about the care that AT receives and wish to help her. However, as the senior nurse for the CHfW,I must consider all our patients and the service that we are obliged to offer. I am therefore unable to offer any consent or approval of your request to provide care for AT whilst being off work with work related stress. I am happy for us to arrange a meeting with HR and Kerenza next week to discuss if you would like.”

3.55 The Claimant sought advice from the RCN who emailed KH, KM and SR in HR on 27 August [248]. The email said that the decision was contrary to the Claimant’s GP’s advice that respite would be therapeutic to recovery and not being able to support AT would further add to the Claimant’s feelings of stress and distress. The RCN said it would not be in the best interests of AT or the ward for AT to otherwise spend two weeks in the hospital full time. The RCN also said their legal advice questioned the reason given for the refusal, as it inferred it was the fact that AT had a disability/complex needs that caused the issue. The RCN asked KH to reconsider her decision.

3.56 Dr Alam also sent an email on the morning of 30 August [256] supporting the Claimant, and questioning the right to refuse consent to care for a foster child on sick leave, particularly if foregoing payment. Dr Alam said that a proposed plan from Social Care sharing AT’s care between the ward and the Claimant would be no longer actionable leaving nights where dialysis may not be deliverable in Wales and AT may require transfer to England. Dr Alam said it would help the hospital and the NHS save money by not transferring the care to Bristol and would not put undue pressure on staff to change their off duty at short notice. He said the decision made was against the Claimant’s and AT’s best interests, and that of Pelican staff members, the nephrology service and the organisation as a whole.

3.57 KM replied to the RCN on 30 August 2022 to say: “As you will understand this is a very complex situation. As a health board we are not able to stop Rhiannon providing respite care to this child while she is off sick. However, I do have some grave concerns about this arrangement which pre-dated me being in post. So when Rhiannon returns to work I would like to arrange a meeting between us all including yourself and Rhiannon and HR to ensure that we are all clear on how to manage this situation going forward. I have just tried to contact Rhiannon and have left her a voicemail to call me back to let her know this.”

3.58 KM also emailed the Claimant to say she was sorry the Claimant would not speak to her over the phone as it would be helpful to have a conversation, but she would meet with the Claimant on her next sickness interview to discuss going forward and her return to work [255]. The Claimant sent a further reply [255] thanking KM for the voicemail and email to RCN confirming that she was able to support AT at this time when absent from work. The Claimant said she was not willing to discuss the matter over the phone but would be prepared to meet in the future with support and representation. The Claimant confirmed again she was happy to not accept any form of payment and do it on a purely voluntary basis. She said she thanked KM for providing clarity that would allow the Claimant to support AT whilst maintaining her registration. KM’s evidence was that she shared concerns that it may not be good for the Claimant’s health to be caring for AT when on sick leave with work related stress but that they could not stop the Claimant undertaking her foster parent duties.

3.59 Social services then devised a plan for shared care with the ward and the Claimant. The Claimant says that the ward did not in fact have sufficiently skilled staff to care for AT and on 9 September AT was facing a transfer to Birmingham. She says that KM then contacted social services to ask them to contact the Claimant, and that she was asked by social services to provide additional care for AT and did so for 9 nights out of 15 nights. The long term sickness record meeting of 27 October at [291] refers to there being a potential need for staff to swap the nights the Claimant provided respite care for AT and that the request had to be made via the local authority. We can understand why such contact would go through that route, because the Claimant was caring for AT in the Claimant’s capacity as a respite foster carer.

3.60 KH in her grievance interview [462] spoke about how AT did not need to be in hospital and the hospital were saying to social services that they needed to find a foster carer for AT. KH said that she did not consider it a reasonable thing to do to agree to the request for shared care with the hospital for an undefined period of time when staffing was nowhere near where it should be. KH also spoke about AT’s significant medical needs and that if the Claimant was struggling with work related stress, it would not help with the reason the Claimant was off work for. KH said she did not make the ultimate decision about AT going to the Claimant for care because she handed it over, but that they could not stop it happening.

3.61 On 31 August 2022 the Claimant had an OH assessment [263] by video. The OH practitioner recorded the Claimant saying she was not certain if she was likely to further extend her current fit note and the Claimant reported low mood, tearfulness, burnout, worry, and that she was anxious about returning to work. The OH practitioner recorded the Claimant saying she also feels unwell after working a night shift, which was why she believes she cannot work nights. The OH practitioner said to rebuild emotional and psychological resilience and robust coping strategies the Claimant had been signposted to the Employee Wellbeing Service, Canopi Health for Health Professionals, and remploy. The OH practitioner recorded the Claimant had been proactive regarding her lifestyle. When asked what work adjustments may facilitate a return to the substantive role the practitioner said there did not appear to be a requirement for adjustments at the present time. They said that according to the Claimant adequate staffing on the ward would likely facilitate a return to her substantive duties, and that they had sign posted the Claimant to HR and to her trade union. They said in their opinion on the information provided it did not indicate there is any underlying health problem at present. They said the Claimant was temporarily not fit for work and the symptoms were likely to improve if stress in the role can be reduced. They said once fit to return to work, they recommended that management consider undertaking a stress risk assessment and regular reviews to identify all the perceived workplace stressors and consider what control measures it may be reasonably practicable to implement. They said the Claimant would benefit from ongoing management support perhaps through regular 1:1 meeting to discuss her progress and check on her wellbeing. The practitioner said: “Miss Rees working night shifts is a managerial issue and does not fall within the remit of occupational health. Miss Rees is aware to negotiate the shift pattern with the management and further advice can be sought from HR. I have advised Miss Rees to re-access her GP for further assessment and advice.”

3.62 On 11 October 2022 RP emailed the Claimant saying she hoped the Claimant was starting to feel better, and sent an invite for a long term sickness interview on 21 October 2022 [282]. RP said she would be accompanied by KM. The Claimant said she could not attend on that date and was getting her trade union representative’s availability. The Claimant also questioned the presence of KM as she understood it was a sickness meeting and not a meeting to discuss AT. RP replied to suggest 27 October as an alternative and said that KM was attending to help provide support and listen to concerns the Claimant may have regarding stress levels the Claimant felt at work prior to going off sick [287].

3.63 There was a long term sickness meeting on 27 October 2022. The notes are at [291]. They show the Claimant expressing anxiety that TF was there as a senior nurse, stepping in for KM, and it being explained it was so that they could listen to her concerns because having the Claimant absent with workplace stress was concerning. The notes show the Claimant saying she found the thought of returning to work very anxiety inducing and being reassured that there was support for her and that staffing changes had been made to the ward, with the ward now accepting general medical patients, and using patient acuity scoring to open and close beds as demand dictated. The Claimant was also updated about recruitment specifically for the ward and that there were also volunteers from other wards covering until the newly recruited staff started which was providing greater consistency in cover. The notes say “Rhiannon mentioned night shifts contributing to her stress. We do not have anyone in ACH who is on a fixed night contract, and anyone who wishes to work all or primarily nights is being spoken to, as training and learning is significantly compromised. Similarly, we are asking for a balance of shifts from all staff. Rhiannon is not ready to return to work currently, therefore night shift working is something we will address in the meeting to finalise the support and plan for Rhiannon’s return.” The notes also record the Claimant saying she felt there were a few members of staff who were bullies and that the Claimant and RP had discussed this previously and the staff had been spoken to, but the Claimant had never wanted to raise it as a formal or named complaint. The notes say it was reiterated that the health board and directorate will not tolerate bullying and if it continued on return they would encourage the Claimant to take it via a formal route. The notes say that the Claimant was reassured that it was acknowledged that Pelican ward had not been perfect, they had lost a number of experienced staff, but were working hard to improve the situation and in the future they would welcome the Claimant’s input when she was back at work. There was to be a follow up meeting in 4 to 6 weeks. The Claimant accepts in her witness statement that RP explained some improvements that had been made to Pelican ward.

3.64 The Claimant moved on to half pay sick pay in February 2023. The Claimant was next invited to a long term sickness meeting with RP and TF on 24 March 2023 [309]. There are no notes available for this meeting or any outcome letter sent. The Claimant sets out in her witness statement that they discussed an overpayment of sick pay, and that TF asked if the Claimant wanted to return to Pelican ward or another Paediatrics location. The Claimant records she said she wanted to remain on Pelican but without the stress and bullying. On 22 April 2023 the Claimant emailed TF thanking TF for meeting recently and recognising the Claimant was not yet ready to return to work. The Claimant said she was pleased to hear there was new management in the medical directorate and there seems to have been some positive changes on Pelican in her absence. As far as the meeting went the contemporaneous email therefore shows that the meeting was a positive and supportive one, and the Claimant was not being pressured.

3.65 The Claimant wrote in her email of 22 April 2023 that she had decided to raise a grievance against the nursing management team, explaining that without there being any form of redress she could not being to consider returning to the workplace and she was struggling to move forward. She did not tell TF that it was potential night working stopping her returning to work. The Claimant’s grievance is at [314] and focuses on RP, KH and KM. The Claimant said that her treatment by the management team had led to a deterioration in her mental health and her prolonged sickness absence which she said was a result of their lack of communication, respect and support. She wrote that her mental health had only now improved sufficiently following many months of therapy to be able to formally raise her grievance. She wrote that the dread and anxiety she felt coming into work was an accumulation, day after day, of stress in the workplace caused by numerous factors she repeatedly made RP aware of in writing. The Claimant wrote this included a workload that was impossible to manage, too many complex specialist patients, an inappropriate balance of nursing staff with those not sufficiently skilled. The Claimant said that as her mental health had improved in recent weeks she had revisited emails and whats app messages, which she attached to her grievance, which she said she had not received a response to at the time and that any issue of importance was ignored by RP. The Claimant referred in particular to:3.65.1 RP taking 7 weeks to respond to the request to train as a foster carer in May 2020;

3.65.2 June 2021 no response to an email about mandatory certification for violence and aggression and manual handling training expiring;

3.65.3 Formal request in September 2021 to reduce her working hours and its follow up email were ignored and only finally granted in August 2022;

3.65.4 December 2021 an unanswered request for 2 weeks unpaid leave for foster care which was only resolved when the Claimant asked AW;

3.65.5 In August 2022 being suddenly rostered to work nights with no communication or notice;

3.65.6 In August 2022 to March 2023 only receiving one communication from RP inviting her to a sickness interview and enquiring after the Claimant’s welfare which was not in line with the documented sickness policy;

3.65.7 A lack of response and a lead nurse being invited to her first sickness meeting were evidence of a bullying and intimidating culture;

3.65.8 That it was not the focus of her grievance but she had raised bullying on Pelican ward verbally with RP, that she had never taken it forward previously for fear of reprisals, that RP had assured her the problem would get diluted with staff rotation, and on reflection the Claimant considered this approach was passive and suggestive of a reluctance to deal with the behaviours;

3.65.9 The distress, concern, and worry KM and KH caused when the Claimant was trying to support AT and, in particular, KH not sanctioning special leave and KM refusing the request to care for AT on the ground the Claimant was absent from work due to workplace stress. The Claimant said she was never given a clear explanation for the refusal. The Claimant said KM had challenged HR by saying that HR did not appreciate the child’s complex needs i.e. that the child was disabled and that this suggested it was the child’s disability that motivated the decision which the Claimant said was unlawful under the Equality Act (direct discrimination by association) and contrary to the statutory equality duty to have due regard for the elimination of discrimination. The Claimant also alleged the decision was potentially indirect discrimination on grounds of sex. The Claimant wrote that regardless of discriminatory issues she felt the decision was immeasurably cruel as any healthcare professional would understand the decision was not in the best interests of AT who would otherwise have faced unnecessary admission to hospital. She said it was only reversed after the input of the union and Dr Alam and that it was after 8 days of uncertainty which caused her huge additional stress. The Claimant said that when KM did respond KM did not give direct consent but simply said the health board could not stop the Claimant. The claimant said the response from management was extremely distressing and the clear inference in the initial discussions were that if she chose to care for AT without their permission to do so, she would face consequences for her employment. The Claimant said management were aware there were not enough dialysis competent nurses to manage the child’s care through the whole two week period, and that ultimately KM had contacted social services who had asked her to provide a longer period of care to AT. The Claimant also said she found it very unfair and distressing that KM spoke of “grave concerns” despite having sanctioned the fostering arrangements, and in KM saying she would need to discuss them at some point in the future.

3.66 The Claimant said she felt she could not move on or move forward until these matters had been addressed.

3.67 On 24 April TF acknowledged the email saying she had just returned to work from a period of sickness, was working through her emails, and would get back to the Claimant as soon as she could.

3.68 RP was seeking to arrange a further sickness meeting for 5 May but TF was not able to attend so suggested 10 May. The sickness absence process then transferred over to TF because of the Claimant’s grievance.

3.69 On 4 May 2023 TF emailed the Claimant having read the grievance. TF attached the Respect and Resolution Policy and asked whether the Claimant wanted to proceed down the informal or formal process. TF also asked whether the grievance had been sent through to concerns or just to TF [321]. On 7 May the Claimant replied to say she wished it to be dealt with formally and had only sent the grievance document to TF.

3.70 On 5 May 2023 the Claimant was again signed off work until 31 May 2023 with stress at work.

3.71 On 10 May 2023 the next long term sickness meeting took place with TF [325]. The Claimant said she still found it difficult to walk into the hospital, and the notes record she became quite emotional. The Claimant said she had been seeing her GP regularly and attending counselling which had come to an end. She was offered the employee wellbeing service. The Claimant said she did not think she could even consider returning to work until she had some resolution from her grievance which TF explained had been passed on to Peoples Services. They agreed to meet again in 4 weeks’ time.

3.72 On 9 May TF told People Services that the Claimant wanted to pursue a formal process, and it was passed to Abigail Dodwell [AD] in People Services. On 12 May AD said she had emailed the Claimant to acknowledge the concern and would arrange a chair, time and date. AD contacted one potential chair that day who could not do it, but said that RM would be able to.

3.73 On 22 May Sian Thomas [ST] in People Services, who was supporting the long term sickness process, emailed AD looking for an update. ST explained the Claimant was not wanting to return to work until the Respect & Resolution had been resolved. AD said a chair had been identified and dates looked at for week commencing 31 May.

3.74 An initial proposed dated was sent, and on 25 May the Claimant said her union representative not available for the next two weeks and had suggested 9 June or the following week. AD then tried to arrange dates for week of 12 June. On 4 June the Claimant provided some dates her union representative could do, and one date matched with those of RM. The meeting date of was to be 28 June, which AD confirmed on 9 June.

3.75 RM is a Senior Nurse for Integrated Medicine and was appointed to conduct the Respect & Resolution grievance. This was RM’s first Respect & Resolution. On 30 May RM asked AD whether she should be doing the grievance when part of it was about a lead nurse who outranked her [334]. AD replied on 9 June to say the policy did not state that RM had to be more senior but of appropriate seniority.

3.76 On 21 June the Claimant sent TF her latest sick note apologising for the delay, and saying she had not been in a good place to chase it [350]. ST and TF were trying to set up a long term sickness meeting to take place after the Respect & Resolution meeting [353].

3.77 There are no formal minutes of the Respect & Resolution meeting on 28 June 2023, just handwritten notes at [360]. They seem to show the Claimant being asked first what her ideal resolution was with the Claimant saying it was only since she had been unwell she had been thinking of the concerns she had raised, and how she felt ignored by management for 3 years. The Claimant said she was seeking an acknowledgment that they failed as management and a “sanction.” As we understand it there were then discussions about the basis of the Claimant’s grievance during which it came to light that RM had not received from AD the supporting paperwork the Claimant had sent with her original grievance, just the grievance itself.

3.78 On 29 June the Claimant emailed AD saying it was nice to finally talk it through and receive some recognition her concerns were valid, and that management’s behaviour has been inappropriate. The Claimant said initially the main driver was the treatment of AT so looking into a policy that might help future foster carers would be immensely positive. She asked about the original supporting documentation. AD replied to say she did wish to speak to the People Assurance and Experience Team regarding a fostering policy/guidelines/procedure that could assist with situations in the future. AD confirmed that TF had provided the documents and offered her sincerest apologies that she had missed it when sending information to RM. AD acknowledged that it provided a wealth of background as to why they were at the meeting and said again that it was a mistake and one that she could see did not help the meeting fully. AD confirmed she had sent the documents to RM for review, and that the emails and whatsapp were integral to the concerns and definitely needed to be looked through and apologised again for any upset caused [362].

3.79 On 30 June AD sent the Claimant’s documents to RM. On 11 July RM emailed AD to ask if she was free to discuss it. On 14 July AD replied to say she had been out of the office unwell but could speak that afternoon.

3.80 On 11 July TF sought to arrange a long term sickness meeting for 25 July, in advance of TF going on leave on 29 July. On 19 July the Claimant’s representative, CB, confirmed she was not available and that she and TF were off for the same fortnight. CB proposed they meet after that because hopefully there would be a grievance outcome by then, CB thought the Claimant would be in a better place to decide next steps when they had an outcome [372]. The Claimant continued to be signed off work by her GP with “stress at work.”

3.81 AD went back to the Claimant to get permission to discuss the grievance with others and AD confirmed that to RM on 20 July [375] and asked RM for some dates. AD updated the Claimant to say they were looking to meet with the management team over the next two weeks diaries permitting, and then hoped to meet again with the Claimant to deliver an outcome. AD chased RM on 26 July who then provided some dates. On 31 July AD emailed the Claimant with an update saying emails had been sent to the individuals to meet and that RP was out of the office until 15 August but they were asking to meet KH and KM the following week.

3.82 On 31 July 2023 AD emailed KH asking for dates to meet week commencing 7 August. KH, RM and AD were then trying to find dates they all could do which ended up being 15 August 2023. AD also emailed KM about a meeting and KM replied on 31 July suggesting 10 August. AD also emailed RP on 31 July. The meeting initially arranged with KM on 10 August did not go ahead.

3.83 The long term sickness meeting envisaged for 16 August was cancelled because the Respect & Resolution was still outstanding, and TF emailed CB seeking to get a fresh date in the diary. The Claimant was also in email correspondence with AD about an overpayment of sick pay the Respondent was seeking to recover and the stress caused by this when she was not well enough to be in work and was facing nil pay. AD asked whether there was anything outside of the department that could be explored to facilitate the Claimant returning to work, whilst being clear there was no pressure to do so.

3.84 On 15 August AD sent RM some proposed questions to ask KH. The notes of the meeting with KH are at [461]. KH spoke about staffing challenges in the paediatric nursing team, explaining that Island ward had had a particularly challenging patient base with staff being pushed mentally, physically and emotionally with an impact right across the floor. KH spoke about Pelican ward historically having an issue with retaining staff and that Pelican did also have staffing issues that was being sourced. KH spoke about the Claimant being uncomfortable with a staff member who was on long term sick leave and that KH had sought to reassure the Claimant but that managing the Claimant’s approach to that member of staff was quite difficult because the Claimant wanted instant solutions. KH said the Claimant did say things that were unprofessional, and there could be an issue with the tone of some of the Claimant’s emails, but the Claimant was not always like that, and KH thought it was when the Claimant was stressed and unhappy.

3.85 KH expressed her views about the Claimant’s fostering of AT, saying she could foresee difficulties such as when AT is on the ward, and that if a staff member had their own child admitted to hospital KH would move the parent staff member for their protection and that of the child. KH spoke of the incident when AT had previously been a patient and the Claimant had been moved off the ward. KH explained that whilst the Claimant could be professional if AT was on the ward, AT as a 4 year old child would not understand professional boundaries.

3.86 In relation to the Claimant’s request for special leave, KH explained that before the Claimant went on sick leave the Claimant had spoken to her about the potential to take special leave to provide respite foster care, with shared care with the hospital and that at this stage it was for an undefined period of time. KH explained that the hospital’s point of view to social services was that AT did not need to be in hospital and social services needed to find a new foster carer, with part sharing of care not being an option. She said she told the Claimant she would have a think about it and that they had also discussed night shifts with the Claimant saying she could not work nights and wanted to be taken off it. KH said she told the Claimant to speak to RP, or to ask colleagues to cover. KH said that she did not consider she could say yes to the Claimant providing care to AT for an undefined period of time when staffing was nowhere near where it should be, and that KH needed to manage safe staffing on the ward. KH said she understood that the Claimant then subsequently went on sick leave, probably due to increased stress. KH explained that once the Claimant was on sick leave she spoke with Stephen Rees and about AT’s significant medical needs. KH said that the view taken was that if the Claimant was struggling with work related stress then the caring for AT would not help with the reason the Claimant was off for, but that ultimately she had handed over the final decision.

3.87 TF was seeking to arrange a fresh long term sickness absence meeting. On 17 August CB said the grievance remained outstanding but they were still happy to attend a sickness absence meeting. ST sent some proposed dates but CB was not available and it was ultimately arranged for 6 September 2023.

3.88 On 23 August CB emailed AD asking for an update on the grievance investigation and asking whether it would be completed before the next long term sickness meeting. AD replied to explain that they still needed to meet with RP and KM and due to annual leave and diary commitments it had not been possible. AD said they would look at what they could do in the next week [411]. The Claimant replied on 29 August to thank AD for her honesty and said to let them know when they had managed to interview KM and RP and they could then move forward [410].

3.89 On 23 August AD emailed KM apologising for missing the meeting on 10 August and asked if KM was free in the next week. KM replied on 29 August to suggest 5 or 7 or September and 5 September was agreed by AD. AD also chased RP on 23 August. RP said she had missed the original email on leave and was getting some dates for her representative which RP provided on 29 August. A date of 7 September to meet with RP was agreed.

3.90 On 6 September the long term sickness meeting took place. TF’s notes are at [692] and record the Claimant saying she was being supported by her family and GP and was starting to feel better. The Claimant said she could not see herself returning to work until the grievance resolution had been heard. TF floated the potential to return in another capacity such as admin work in another part of health board and the Claimant said she did not want, as a nurse, to do non clinical work. A temporary redeployment to another area within acute paediatrics was also floated but the Claimant said she did not want to be in any area that meant she would come into contact with those named in her grievance. TF then suggested seeing whether there could be a placement with their community colleagues but the Claimant said she could not contemplate returning to work with the grievance ongoing. The plan was to meet again in 4 weeks when it was hoped there would be a grievance outcome.

3.91 On 6 September RP chased AD for a Teams link and the information promised in advance. RM replied to say she had no contact from AD and had tried to contact AD without a reply and wondered if AD was off sick. RM told RP she would be back in touch. The meeting with KM also did not take place.

3.92 On 12 September AD explained she had been off sick from 1 September to 12 September and asked for fresh availability dates. RM was then away for two weeks on annual leave. AD suggested in the circumstances that they should set some questions for KM and RP and that she could meet them by herself and feedback to RM [427].

3.93 AD set out some proposed questions for RP and KM that RM added to [430].

3.94 On 19 September AD sent an update to the Claimant saying sickness had caused some delay, but a meeting was scheduled that day with RP and hopefully with KM that week. AD sought to agree a date for an outcome meeting week commencing 9 October explaining that timescale was also impacted by some annual leave. As an alternative AD offered for RM to send an outcome in writing. On 22 September AD provided an update that KM’s meeting was scheduled for 22 September. CB replied with the dates she could do and said the Claimant wanted a grievance hearing outcome meeting and also a hard copy of the outcome [472]. The meeting was arranged for 11 October and then moved to 12 October at CB’s request.

3.95 On 25 September AD sent RM the notes of the interviews with RP and KM and said she had told them that it may be that RM would have further questions to add. AD also sent RM a draft outcome letter [460]. The notes of AD’s meeting with KM are at [682]. KM explained that the Children’s hospital had seen unprecedented demand in the last 3-4 years, with patients a lot sicker than before, staffing levels at the lowest they had been, and the impact of Covid. KM said then that she did not recall why AT ended up going to the Claimant for care after the Claimant had been refused special leave.

3.96 AD’s notes of her discussion with RP are at [684]. RP said that the staffing levels on Pelican had improved in the last 12 months and that the emails the Claimant sent were accurate with the loss of experienced staff that RP said she was aware of and was being addressed. RP said that this was never hidden from the team, and staff from other teams would come over to support Pelican. RP said the incidents where staff were left with two patients was done with calculated risk after long discussions with senior staff to take that risk and there had been a lot of pushback with consultants at the time. RP said that as a longer term move they had put general patients on the ward so that there were then two staff members which made it safer for staff. She said this was communicated to staff verbally and that it had always been in the pipeline, but they needed the buy in from the consultants. RP said she had raised the Claimant’s concerns with the senior nursing team.

3.97 RP said the Claimant could be difficult in her manner, and short with people, but it had been addressed with her. RP also said that at other times the Claimant was a pleasure to work with. She described the Claimant as being an experienced staff member and very good at her job. RP explained that when the Claimant first asked about training as a foster carer they were in lockdown and RP said she was not sure if they could support it, and she would need to refer it to her manager to take guidance. She said she discussed it with her line manager, and that the Claimant sent a chaser email that RP responded to within 24 hours. RP said they were in lockdown and dealing with very sick patients at the time. RP said when it was approved they were able to give unpaid leave the first year, and when the Claimant rerequested it the second time there were problematic staffing issues and it would have caused additional staffing issues.

3.98 RP said that having seen the emails it took longer than it should have to drop the Claimant’s working hours. RP said that each roster (known as an “off duty”) that came out the Claimant was still at 30 hours, but they could take the Claimant off two shifts, and that the Claimant had not wanted to do this at the time. RP said that in September 2021 the Claimant requested to reduce her hours, and there was an offer of a trial for 3 months, but that the hours could then be reallocated elsewhere with no guarantee the Claimant would be able to increase her hours again. RP said she had never told the Claimant that the Claimant would lose her role.

3.99 RP said a senior nurse had been invited to the Claimant’s long term sickness review because the Claimant had identified work related stress and they wanted to have a conversation with the Claimant about what they could do, and what they could change, and involve her in any things they could support with. RP said that in the Claimant’s initial sickness period she had tried to call the Claimant but the Claimant would not answer her phone and RP had not documented each time she phoned the Claimant.

3.100 On 4 October 2023 TF arranged the next long term sick meeting which was scheduled for 25 October.

3.101 On 10 October AD sent RM a further draft outcome letter saying that ultimately the outcome was RMs and RM had to be comfortable with it [465]. RM made her own additions and AD sent some further comments [477].

3.102 The final version, dated 12 October 2023, is at [493]. The outcome letter concluded that the Claimant’s treatment by the nursing management team “wasn’t unnecessarily unfair”. RM said the Claimant’s concerns about staffing had been properly escalated but “We feel that enhanced discussions could have taken place, which would have confirmed to you that your concerns were being raised.”

3.103 In relation to delays it was said that in some instances there was a response in an appropriate time, but RM did find there were some delays in getting back to the Claimant. It was said this was not done out of maliciousness but due to operational pressures and seeking further information and guidance. It was said that better communication over this could have happened, and this could have supported the Claimant more in the workplace. RM said that some curt emails were written from both sides but there were lessons to be learned about timely communications, more in person conversations and documented discussions.

3.104 It was said that inviting a senior nurse to a sickness review meeting seemed reasonable but should have been explained and a verbal conversation would have eased some concerns. In terms of long term sickness reviews it was said that there were opportunities for more support because two interviews were not sufficient and a communication schedule should be agreed to allow for a two way conversation.

3.105 On the question of working nights, it was said there was no official work life balance, however, after not working them for so long, a conversation with the Claimant would have been considerate. It was said that nights and weekends were part of the Claimant’s contracted hours and unless guided by OH the Claimant would be expected to do them. RM said a referral to OH was conducted who had advised that conversations should happen between the Claimant and management and it was encouraged that the conversations continue to happen so that work life balance could be achieved.

3.106 In relation to AT, it was said that management had acted appropriately on the occasion when the Claimant was removed from the ward when AT was there. RM also said: “I can understand that due to operational pressures them deciding to decline the special leave if you were in work, but unsure why this was declined as you were not in the work place at the time requested. It was discussed as you were off with stress this might have further contributed to your stress, this was also discussed with HR representative. You had also discussed this with HR and appeared to have a different outcome, however HR were not aware of the child’s complex issues and this put a difference stance on things, meaning this could potentially make your stress worse. I feel a more compassionate approach with discussing the situation may have helped come to a better understanding of each parties’ views and a better understanding may have bene reached. I would always encourage these conversations in person as they often reach a better outcome. I am also unable to establish the reason why the child was eventually placed with you for respite care but do feel like this needs to be a learning point for the Senior Team to keep regular, updated information that can be shared when decisions over a certain process has taken place. This allows for open communication and understanding on why the decision at the time was taken.”

3.107 RM wrote that the lack of a fostering policy had been escalated to a senior manager to look at implementation.

3.108 The recommendations made were:

• Exploring a return to work as the Claimant had vast knowledge and experience and it would give line management further opportunities to build back a relationship with the Claimant;

• To help facilitate the return, a separate conversation to take place with RP on expectations and goals moving forward on communication, timescales and working hours to best support the Claimant in the workplace;

• The letter to be shared with the Director of Nursing so they are aware and can deal with any changes they deem necessary;

• Both KM and KH had offered to meet and think that this is beneficial to the Claimant.

3.109 The Claimant asked at the grievance outcome meeting, and was told, that her grievance was not upheld.

3.110 On 20 October the RCN lodged an appeal on the Claimant’s behalf. [496]. It was said in particular:

• That RP had not responded to the Claimant’s concerns about staffing and patient safety;

• The Claimant had not been told how her concerns about staffing were being dealt with and if someone is raising important concerns it is important to communicate with them about what action is being taken;

• The grievance should be considered as in part, if not entirely, as upheld given the letter acknowledged the Claimant had not been informed about how her concerns were being dealt with and enhanced discussions were not offered to her;

• That the letter also seemed to recognise sometimes there were long delays in responding that caused more distress;

• The letter had also acknowledged that two sickness reviews had not been sufficient;

• The letter acknowledged that a conversation would have been considerate about the change to night shift working;

• Occupational health should have been advising on night shift working rather than saying they could not advise on the matter;

• There should be another referral to OH for clarity on the matter and further advice;

• The Response seemed to support the original discriminatory reason for disallowing the fostering – that fostering a disabled child is too stressful;

• There was very little evidence to support the assertion the nursing management team thought they were saving the Claimant stress by not allowing her to foster;

• They could not understand why that part of the grievance was not upheld;

• That there was no apology from any members of the nursing management team despite RM accepting and acknowledging their failings;

• It is suggested the Claimant should return to her role and a chat with KM and KH and nothing more such as a facilitated discussion;

• The action does not suggest a facilitated discussion or anything more than a chat.

3.111 On 13 October CB emailed AD saying she could not see anywhere where it said whether the grievance was upheld or not and that RM had said in the meeting she was not upholding the grievance. CB asked to confirm that was the position. AD sought some advice and told CB that under the new Respect & Resolution Policy they had been trying to move away from the formal wording of upholding/not upholding and instead look at a resolution. AD did also acknowledge that RM had not upheld the Claimant’s grievance and that had been confirmed by RM at the meeting following CB’s request [512].

3.112 On 24 October 2023 the Head of People Services acknowledged the appeal. On 30 October 2023 a People Services Administrator said she had requested a chairperson on 24 October but at the current time she had not been able to obtain anyone to hear the appeal. On 17 November the Claimant was sent notice of an appeal to be heard on 21 November. In the meantime there was a further long term sickness meeting on 25 October 2023 [692]. The notes record the Claimant saying she felt she was doing ok but still did not feel she could return to work with the grievance ongoing, and the appeal outstanding. There was a further discussion about temporary work whilst the process continued and the Claimant said again she did not want an admin role but would consider going elsewhere apart from acute child health. TF said they would explore further options. TF asked the Claimant for her thoughts on work if the grievance did not conclude in the Claimant’s favour and how the Claimant saw herself returning to work having been off for a considerable period of time and the Claimant said she did not even want to think about it. There was a plan to meet again following the grievance outcome or within 4 weeks.

3.113 DP is Lead Nurse for Specialised Medicine and managed the appeal. He agreed to hear the appeal at short notice, as the previous manager had been unable to do it [535]. When he agreed to take on the role he had been told it was a stage 1 meeting but then learned on his return to work it was an appeal. It was the second appeal he had chaired. DP was sent the paperwork on 20 November, the day before the appeal meeting. He therefore needed time after the appeal hearing to complete his review of all the paperwork. At the appeal hearing he told the Claimant he would aim for an outcome within two weeks. Following the appeal meeting he arranged to speak further with KH and KM. He met with KM on 12 December, KH on 7 December and also had a discussion with RM.

3.114 On 4 December TF emailed about having a further long term sickness meeting and a discussion how they could move forward. TF said hopefully the Claimant could give an update on the grievance hearing and TF could give an update on possible opportunities to aid the Claimant’s transition back to work [562]. With Christmas leave the meeting was arranged for 3 January 2024.

3.115 On 11 December 2023 CB contacted Bryony Donegan [BD] in People Services saying the Claimant had not received an outcome letter and that the 14 days she had agreed to meant there should have been a response by 5 December. BD said she understood that DP was going to contact the Claimant with an update. DP replied to say he had not really had chance to sit at a computer and would email an update later that day. He was also due to take leave the following week. DP emailed CB to apologise for the delay and said he had almost concluded his investigations and aimed to provide his outcome by close of play on 15 December and would be happy to meet to discuss the outcome once it had been read.

3.116 DP finalised the appeal outcome on 15 December 2023. DP said that RM’s decision about the treatment of the Claimant by the nursing management team was proportionate and reasonable. He acknowledged that feedback to the Claimant and the wider nursing team was at times delayed or insufficient which led the Claimant to the view her voice was not heard. He said that the communication between all staff could have been better and there seemed to have been a breakdown in communication and trust between parties. He said the change to the working pattern was applied to all staff on Island and Pelican but that more notice should have been given to staff of the change, to explore any concerns, and work through any mitigation. He said that sickness review meetings should have been held in line with policy. He said the decision to support or decline AT’s placement was intended with both AT’s and the Claimant’s wellbeing but the method it was communicated was not to the standard he would expect to ensure the rationale was clearly communicated. He acknowledged there were conflicting messages given as to whether AT could be placed with the Claimant or not. He said that the nursing team had acted appropriately on the previous occasion when they redeployed the Claimant when AT was an inpatient, but that the Claimant should have been contacted prior to the move. DP said that KM still wished to meet with the Claimant to ensure there was an agreement in place if a similar situation arose with AT that People Services could support. DP said he was directing that a facilitated meeting take place between the Claimant, KH and KM so they could have an open, honest conversation of individual situations, perspectives and views to help provide understanding and context. There should be a meeting with KM to agree fostering arrangements for AT to avoid any further confusion. There should be a phased return to work in line with policy as the Claimant said she wished to return to work. There would be feedback to the senior nursing team and ward management team to be reminded of ensuring sickness meetings are conducted in a timely manner. There should be consideration by the clinical board how they communicate back to staff when concerns were raised to ensure staff felt heard. The outcome would be shared with the Director of Nursing for Children’s and Women’s clinical board.

3.117 DP had agreed to email the appeal outcome to the Claimant. He did not do so. He said in oral evidence there were difficulties with password protecting it and that he also reverted to his usual Internal Governance method of using the post. He said he put the letter in an envelope but the post had gone so he had left a note asking for it to be sent recorded delivery as he was then on annual leave. DP said he had subsequently gone back to see if he could trace documentary evidence of the letter actually being sent and he had not been able to do so. He emailed CB to say he was sending the letter by post. On 18 December 2023 the Claimant emailed DP to say she was surprised to learn the outcome had been sent by post rather than email and given uncertainty around Royal Mail at Christmas she asked for an emailed version. The Claimant said she waited all day the previous Friday for the outcome and that sending it by post had added to her distress and delay.

3.118 On 22 December CB contacted BD to say the Claimant had not received the letter and they were not sure why it had been sent in the post as it had been agreed it would be sent by email. On 28 December 2023 the Claimant contacted TF to say she was reluctant to attend the sickness meeting on 3 January 2024 because she still had not received her grievance appeal outcome, that waiting over 8 months for an outcome was really not acceptable, and as discussed in previous sickness reviews they had agreed to wait for the outcome before planning to move forward [632].

3.119 DP replied to the Claimant’s email on 29 December explaining that he was on leave from 15 to 27 December. DP acknowledged the additional distress caused and said it was routine to post outcome letters due to associated Internal Governance procedures. But he attached a pdf version.

3.120 On 2 January TF emailed the Claimant suggesting that the long term sickness meeting should go ahead to check on the Claimant’s wellbeing and to discuss options to aid her transition back to the workplace. ST said the same. The Claimant emailed again to say she was not feeling well enough to attend the long term sickness meeting. The Claimant referred to the delay in receiving the grievance outcome and also an email she had sent BD on 4 December 2023 about the circumstances in which she had reduced her hours, and also about an awaited update for an industrial allowance claim. On 3 January TF confirmed she had submitted the industrial injury claim paperwork. TF also contacted the Claimant to say she had applied for the Claimant to be paid some annual leave.

3.121 The long term sickness absence meeting was due to be rearranged but on 12 January 2024 the Claimant resigned [668]. The Claimant referred to feeling emotionally and physically overwhelmed in work, and suffering debilitating anxiety and depression whilst enduring an 8 month grievance process had left her feeling extremely vulnerable and no resilience to return to her role. The Claimant said the grievance process was wholly inadequate and that the grievance managers in not upholding her grievance, especially in relation to the treatment of her and AT, was “as culpable as those very women who chose to treat us so badly.” The Claimant referred to her staffing concerns being ignored and said it was incomprehensible that DP had tried to justify that. The Claimant said that the occasion on which she had been moved off the ward when AT was an inpatient was not part of her grievance and yet had been discussed at length and it seemed to be there to save face because they could not provide a strong enough argument to prevent her caring for AT that was not discriminatory. The Claimant said there had been a significant breach of trust. She said the grievance action points were wholly inadequate.

3.122 TF replied to the Claimant giving a cooling off period and saying that the resignation letter would not be actioned until 26 January and TF would also be happy to meet with the Claimant. The Claimant did not withdraw her resignation and it therefore took effect.

[4]Discussion and Conclusions Constructive Unfair Dismissal Fail to properly deal with the Claimant’s concerns around staffing4.1 We take first the constructive unfair dismissal complaint.

4.2 In terms of the allegation that the Respondent did not respond to the Claimant’s concerns about staffing; we find that generally they did. In terms of the Claimant’s email of September 2019, we have not found as a matter of fact it was sent to RP or nursing managers as opposed to consultants, and the consultants did respond to it. In relation to the Claimant’s email of 17 January 2020, as set out in our findings of fact, we again do not find there was as a failure by RP to respond. RP’s Datix entry shows that she had responded to the Claimant and that it had been reiterated that cover when needed should be sought from Island Ward. The Claimant clearly did not consider that always worked or was a satisfactory solution; but that is not the same thing as not having a response. The Claimant’s email also shows that she had been having discussions with nursing management because the email in part aligns with the nursing management’s strategy of trying to persuade the consultants to take more general patients on the ward which would justify increasing nursing numbers.

4.3 In relation to the Claimant’s 27 July 2020 email, as set out in our findings of fact, the Claimant was included in the responses, including in particular the one from Mary Glover and the Claimant herself in her own email acknowledged that RP and others were working to bridge the gap and fill vacancies. We do not find that the Claimant was unaware of the plans or was not responded to. In relation to the Claimant’s Datix of 15 November 2020 we have also found as a matter of fact that RP had fed back to the Claimant about the incident. There was also of course a direct email response from RP to the Claimant’s email of 29 November 2020. In terms of the Claimant’s email of 7 September 2021 and subsequent absence, again we do not find it is the case there was no response. RP messaged the Claimant who did not reply. AW, RP’s deputy, then messaged the Claimant. The Claimant herself accepts that she had a return to work meeting at which her email was discussed.

4.4 The allegation is, however, not just about there being a response to the Claimant’s concerns (albeit that was a point of emphasis in the Claimant’s evidence). It is an allegation about not properly dealing with the Claimant’s concerns about staffing – i.e. not adequately dealing with the Claimant’s concerns about staffing.

4.5 We find that generally the Claimant’s concerns, and the staffing issues as a whole, were being addressed with long term recruitment plans, and cover arrangements being in place which included, at times the Claimant having to work with new staff or junior staff and also at times being down to one nurse with cover being provided from Island ward when needed. The Claimant was aware of these plans.

4.6 Looking at her emails the Claimant found working with new staff or junior, inexperienced staff, and lone working particularly difficult. We considered that there was reasonable and proper cause for the Claimant to have to work with junior or inexperienced staff; it was an inevitability of the fact that the Band 6 staff were retiring and could not simply be placed with like for like; there had to be new people and they had to be trained.

4.7 We did, however, consider that more should reasonably have been done to respond specifically to the Claimant’s concerns about the cover arrangements from Island ward and the concerns that came with it about lone working. The Claimant was consistently expressing concerns about the stresses and risks of lone working and that from her perspective cover arrangements by Island ward were not working. We do not take issue with the Respondent having in place cover arrangements by Island ward if that was the best staffing arrangement across the establishment when weighing relevant risks. However, the Claimant was consistently communicating that the cover arrangements were not working in practice for her, and cover was not always being made available to her. We consider that reasonably the nursing management should have had a direct and express conversation with the Claimant about it, sat down with her and understood what was happening when the Claimant was left without Island ward cover, and then explaining to the Claimant in very clear, detailed terms what she needed to do when she needed help from Island ward so that the Respondent knew the cover plan would work in practice. We considered that was particularly the case by the time of the Claimant’s email of 7 September 2021 where by this time the Claimant was saying that the situation was affecting her health and she took a period of sick leave. There needed to be a discussion with the Claimant about the Pelican and Island ward cover arrangements making sure they were working for the Claimant, and about the staffing plan, including for example that the Claimant was being called at home at night by staff with questions. We therefore considered that as at this point of time in September 2021 there was a failure to adequately deal with the Claimant’s staffing concerns that was likely to undermine trust and confidence and was without reasonable and proper cause.

4.8 Similarly, there should have been a discussion with the Claimant about her email of 26 July 2022, which was not only about night working or a request to reduce her hours but about the staffing pressures working on Pelican, to again understand what the particular pinch points were and if the cover arrangements were not working for the Claimant to talk those through with her. Again at this point the failure was likely to undermine trust and confidence and was without reasonable and proper cause. Failure to make a reasonable adjustment to night working

4.9 We set out separately below our conclusion that under the Equality Act there was no failure to make reasonable adjustments. The Respondent’s position is that this is also determinative of this element of the constructive unfair dismissal complaint.

4.10 The pleaded case is at [42] where it says: “The Claimant avers that the Respondent fundamentally breached her contract of employment by - … (d) the requirement to work nights in July/August 2022 when she had already reduced her hours for mental health reasons and the failure to remove her from the requirement to work nights was also a failure to make a reasonable adjustment under s20 Equality Act 2020.” The use of the word “also” shows the reasonable adjustment complaint is an additional complaint about the same inherent issue. We do consider that the actual pleaded case before us for the constructive unfair dismissal claim includes by itself a complaint about the requirement to work nights in July and August 2022 that can stand independently of whether or not it amounts to a failure to make a reasonable adjustment. The list of issues is a management tool for the parties and the tribunal in the case; it is not the pleaded case.

4.11 We accept, as set out in RP’s evidence, that the rostering of the Claimant to work nights was not done by her but by RP’s deputy and in circumstances in which they were short of staff with the appropriate skill set. However, RP also confirms in evidence that she did have a member of staff who only wanted to work night shifts so there was some capacity. According to the particulars of claim [30] the Claimant was rostered to work on 4, 19, 20 and 27 August 2022 on her own. Once the rostering happened the Claimant spoke with and emailed RP about her anxiety and worry with working nights and saying she found them debilitating to work. The Claimant asked to be referred to OH about her dread of working nights and asked for help. RP agreed to refer the Claimant to OH and asked the Claimant to look to cover shifts that were short that month. The Claimant sought to remove herself from nights and cover day shifts but was told by RP and Suzanne Davies that she could not do so, as RP acknowledged in her later email to KH.

4.12 We appreciate the staffing pressures being faced at the time, including covering nights in particular with the correct skill mix, and do not consider that the change in rostering or the lack of advance notification to the Claimant was done in any deliberate sense to upset her. But looking at it objectively we do consider that it was unreasonable in the circumstances to roster the Claimant in this way without discussing it with the Claimant in advance. It was known the Claimant had not historically worked night shifts for a long period of time. It was a big change, and in our judgement should reasonably have been discussed with the Claimant in advance. Not doing so was objectively harmful to trust and confidence and without reasonable and proper cause.

4.13 We also consider that once the Claimant spoke with and emailed RP about the impact of the change on her and requested the OH referral, which RP agreed to, it would have been reasonable in the meantime to temporarily remove the Claimant from the requirement to work those nights shifts whilst the OH opinion was obtained. RP had another member of staff who wanted to work nights. She says that she needed that individual to also work day shifts for training, to see the practice development nurse in the day, and also experience the culture of the ward in the day time. However, giving that other individual the Claimant’s night shifts on a temporary basis would not mean the other individual could not also be requested to work some days. We do consider this was conduct without reasonable and proper cause that was likely to harm trust and confidence.

4.14 To be clear this is not a finding that RP should have permanently removed the Claimant from night working. No one knew at this time what the OH report would say. But once the OH report was received and they had the meeting in October 2022, in our judgement there was nothing inappropriate with what was said to the Claimant at that point in time about arrangements for working nights. Mishandle the Claimant’s request to reduce her hours

4.15 We accept that it is likely that the Claimant and RP had a discussion about the Claimant’s 7 September 2021 request to reduce her hours, as stated by RP in cross examination. We say this because when the Claimant made her subsequent request on 26 July 2022 it was written as a fresh request. We consider that if there was an outstanding, festering request to drop her hours that the Claimant would have said so in her email of 26 July 2022. She does not in that email, for example, say she has a request that has been outstanding for 10 months. On the balance of probabilities, we consider it likely that the Claimant did have a response at the time in 2021 and decided not to pursue it further at that point. That 2021 request was not mishandled.

4.16 We do, however, find that the 2022 request was mishandled. In her email of 26 July 2022 the Claimant was seeking help and one of those things was about reducing her hours. The Claimant then sent her whats app on 1 August specifically about dropping her hours from September 2022. Quite when RP personally processed the request is not entirely clear because the change in hours was implemented on 20 or 21 August 2022 but RP was on annual leave by that point. Given RP said in evidence that one reason she processed it was because she thought it might help the Claimant to return from sickness absence, RP presumably therefore did so at some point between 14 August (when the Claimant went on sick leave), and 19 August when it is known that RP was on annual leave (although we do not know the start date of that annual leave).

4.17 The Claimant’s request to reduce her hours was tied to her feelings about staffing and generally feeling overwhelmed in work. Linked with our finding above, we do consider that there should have been a prompt discussion with the Claimant about her email of 26 July 2022 that included the request to reduce her hours. It may be, for example, that if there was a conversation about how to support the Claimant to cope better in work with the staffing/ cover situation with Island ward as outlined already above, the Claimant may have changed her mind about wanting to reduce her hours or at least she would have made a fully informed and considered decision. Linked with our finding above we do consider that the lack of a prompt response and general discussion with the Claimant about her email of 26 July 2022, that included her request to reduce her hours, was without reasonable and proper cause and likely to harm trust and confidence.

4.18 In reaching our conclusions we did take account of RP’s evidence that she had been having conversations with the Claimant about reducing her hours, needing to make a formal request, that she had told the Claimant she would not have to more nights on more hours, that if the Claimant dropped her hours there was no guarantee she could get them back because the hours may go to new recruits, and that RP offered to do a temporary reduction of 3 months. However, the difficulty we have is that it is difficult with RP’s evidence on this point to track what point of time RP is referring to, or whether there is confusion between the different requests on different occasions and in different years. That position is also not reflected in any documents (other than the much earlier reference to the Claimant’s misunderstanding about potentially losing her job). It struck us, on the balance of the evidence before us, and as already stated, that what appeared to be missing was a discussion with the Claimant that addressed holistically her staffing and cover concerns as well as this request for reduced hours working because these things were linked and were not satisfied on the evidence that this adequately happened. We are not oblivious to the work pressures that RP would have been facing, particularly with line management responsibilities for so very many staff. However, we have to consider the Respondent’s position objectively and we do consider that this was a failure without reasonable and proper cause likely to undermine trust and confidence. Mishandle the Claimant’s request to care for a foster child, AT

4.19 We considered that it was unfortunate that no clear parameters appeared to have been set when the Claimant was initially given permission to train to be a respite foster carer. For example, it was always inevitable that there would be times at which AT would end up being admitted to the ward. We also noted that the contemporaneous evidence shows that it was KM who originally gave the Claimant permission.

4.20 The Claimant emailed RP on 8 August 2022 with a request to take special leave from 1 September to care for AT. At that time the Claimant said it would be to take AT full time to buy time for social services to find AT a new foster family. RP did not respond to that before going on a period of annual leave. The Claimant had also at some point had a conversation with KH who had told the Claimant to speak to RP about whether it was feasible. We considered that this was mishandling by RP. There is no evidence RP had started her period of absence on annual leave at this point in time. We can fully accept that RP would have been very busy. However, the request for special leave was for an important reason. The request was also time critical if AT was losing her family from 1 September and if RP was going to be on annual leave until 30 August. RP should have either dealt with it or referred it on to another manager if RP was unable to do so within the time constraints RP had.

4.21 On 14 August 2022 the Claimant went on sick leave. On 19 August 2022 she emailed KH, copying in RP, requesting special leave from 4 September. The Claimant by then said it was not feasible to take AT full time and was proposing shared care with the hospital. The Claimant did not mention in her email to KH of 19 August that she was absent on sick leave. The Claimant knew by then that she had been signed off sick by her GP for 4 weeks starting on 18 August due to workplace stress [245]. KH responded on 22 August saying that regretfully the request could not be supported at that time because of the difficulties staffing Pelican ward.

4.22 We find that at the time of this initial refusal KH did not know the Claimant was absent on sick leave. The Claimant disputes this saying that KH would have been aware through knowing about the staffing situation and covering RP’s absence on leave. However, we accept KH’s evidence that she did not know. There is nothing in the Claimant’s email to alert KH to that and there is nothing in KH’s response that is indicative of KH knowing. We consider it is more likely that KH was not aware, was a busy person, and had not interrogated the details of which staff members were off sick. We do however consider that KH should have gone and checked the rosters before responding. If she had done KH she would have found then out that the Claimant was signed off work. But on the basis of what KH understood at the time, we considered that KH’s refusal was reasonable. The rosters show the staffing difficulties that the ward had at the time and indeed appear to indicate that the ward was closed at times. Whilst appreciating AT’s situation, KH’s had responsibilities to all patients and a need to keep the wards functioning.

4.23 The Claimant then sought some advice from HR and the RCN and emailed KH on 23 August. Within that email the Claimant did then mention she would be providing respite care to AT whilst absent on sick leave and asking for written consent to do that additional work whilst on sick leave, again on the basis of shared care with the hospital. KH then responded on 25 August to say she was unable to offer any consent or approval of the request [247]. The reason then given for declining approval was concern that the Claimant was off work due to work related stress but was intending to also work in a professional capacity to provide complex medical care to AT, including dialysis, at home. KH considered that the Claimant would be essentially doing her nursing job at home and in KH’s opinion that it was not in the best interests of the Claimant’s wellbeing/health. 4.23 Viewed objectively we do not consider there was reasonable and proper cause for this second decision made by KH. Whilst appreciating that KH had talked the situation through with People Services, there was no evidential basis for KH’s reasoning about the impact on the Claimant’s health and wellbeing of caring for AT whilst the Claimant was on sick leave. It was an unsupported assertion. The Claimant had said in her email to KH of 23 August 2022 that her GP supported the Claimant’s plan, and that fostering was therapeutic for the Claimant and would not be detrimental to her recovery and return to work. If KH and/or People Services had concerns about, or did not believe what the Claimant was saying her GP had said, then they could have contacted the GP with the Claimant’s consent or they could have undertaken an urgent OH referral. They would then have an evidential basis. KH did offer to have a meeting with People Services and KM the following week but by then things would have been too late.

4.24 On 27 August CB then emailed KH and KM in support of the Claimant’s position and Dr Alam also sent his email. KM then emailed CB on 30 August saying that as a Health Board they could not stop the Claimant providing respite care to AT whilst on sick leave, but that KM had grave concerns about the arrangement that pre-dated her being in post and that KM wanted to have a meeting in due course to ensure that everyone was clear about how to manage the situation going forward. KM also tried to telephone the Claimant to tell her, and left a voicemail, but the Claimant did not want to discuss the matter with KM by telephone.

4.25 KM was incorrect when she said that the arrangement pre-dated her being in post. However, KM confirmed the Claimant was able to provide respite care to AT whilst on sick leave, so in our judgement KM did not, when viewed objectively, make a decision that was without reasonable and proper cause likely to harm trust and confidence.

4.26 We do, however, consider that KM should reasonably have dealt with the situation more promptly. In not responding until 30 August the situation was run to the wire.

4.27 Despite KM’s lack of recollection that she had originally sanctioned the Claimant training as a respite foster carer, we also considered that objectively it was reasonable for KM to want to have a future meeting to discuss arrangements going forward, and indeed to hold concerns about the general situation. There was a lack of foresight at the time of the initial approval of the Claimant training to be a respite foster carer of potential problems. Albeit we acknowledge that was in the height of Covid and we also make the observation with the benefit of hindsight. But even with such a lack of foresight there is nothing inherently wrong with an employer wanting to reflect on and discuss an arrangement if in practice the arrangement is causing concerns. There had been the events of June 2022 when the Claimant had reacted unprofessionally when taken off the ward when AT was admitted. The situation in August 2022 was not well handled for reasons already given. But in general it was also reasonable for KM to hold concerns about a situation in which the hospital was understandably seeking to place the onus on social services to care for AT in circumstances in which AT did not need to be in hospital, and where, sick leave aside, the hospital with staffing pressures would hypothetically be losing the value of the Claimant’s work for all of their patients, in order that the Claimant could render foster care to AT. We absolutely do not lose sight of AT’s situation, but the position was very complicated and KM held wider responsibilities. The Claimant interpreted what KM said as an indication the Respondent might try to stop the Claimant fostering AT as KM had not set out what her “grave concerns” were. But we do not consider that is what KM actually meant. KM was also sending her response in a very urgent situation without time to write considered detail, and KM expressed her willingness to have a discussion with the Claimant by telephone and hold a further meeting. Within context we do not consider KM’s actions (other than the delay) was conduct without reasonable and proper cause likely to harm trust and confidence.

4.28 We do however consider RP’s initial lack of response to the request, KH’s second refusal of the request, and the delay as a whole in what was an urgent and pressured situation for AT that was clearly also affecting the Claimant, was conduct without reasonable and proper cause likely to harm trust and confidence. Fail to adhere to the Respondent’s sickness absence process

4.29 The Sickness Absence Policy [730] says that an employee and manager must communicate regularly to discuss their progress during sickness absence in order to ensure any necessary additional support or expert advice can be sought that may aid a return to work. The frequency of contact is to be mutually agreed and depends on the likely duration of the absence. The section on managing long term sickness absence places an emphasis on managers looking at options and practical ways to support employees to return to work and gives managers broad discretion in progressing an employee through the process. It says there should be regular contact, and managers should keep in touch and agree with the employee when and how frequent telephone or face to face catch ups should be. Arrangements should be agreed when the sickness is first reported and kept under review. Weekly contact is said to be usual in the first 28 calendar days and thereafter the frequency may change. The policy says it is important that the manager maintains a written record of the date and content of any communications.

4.30 At [751] ideally, where appropriate the first long term sickness meeting should take place within the first 28 days of absence. Thereafter timescales depend on individual circumstances. Notice of a meeting should be sent in writing with at least 7 calendar days’ notice. The main points discussed at the long term sickness meeting, including any action to be taken, must be noted and the manager should confirm to the employee in writing the outcome and main points of the long term sickness meetings.

4.31 We do not know the date RP started her August 2022 annual leave but certainly RP started her annual leave not long after the Claimant went on sick leave, and was absent (at least) from 19 August 2022 to 30 August 2022, and that was known to the Claimant at the time because the Claimant received RP’s out of office reply. RP contacted the Claimant about a long term sickness meeting on 11 October 2022 arranged for 21 October.

4.32 We consider it understandable and reasonable that in the period of the first sickness certificate RP would leave the Claimant a period of time for anticipated recovery. However, once they were in mid September, and bearing in mind the policy suggests ideally the first meeting should happen after 28 days, RP should have been taking steps to arrange the first sickness absence meeting.

4.33 We do not consider that the decision for a senior nurse to attend the 27 October 2022 meeting, when considered objectively, was without reasonable and proper cause. Given the context and the Claimant being absent with work related stress it was a reasonable management decision to want to have a senior nurse present and it would have been a challenging meeting for the Claimant and RP in any event due to the Claimant’s loss of trust in RP, and RP generally finding it difficult to deal with the Claimant.

4.34 The 27 October 2022 meeting anticipated a follow up meeting in 4 to 6 weeks. This did not take place until 24 March 2023, so there was a gap of around 5 months. Looking at the contemporaneous emails in the hearing file, it appears that People Services did not know that the Claimant remained on sick leave and therefore it did not trigger them to remind RP about arranging a further meeting (and also appears to have led to Claimant being overpaid). We consider that this delay is more problematic. By 24 March 2023 the Claimant had been absent from work for 7 months. As the Respondent’s own sickness policy states, the longer an employee is off work the harder it can be to reintegrate them back. We consider that this was too long a gap in time to leave the Claimant without contact. As set out in the Claimant’s subsequent grievance, as time went on, she felt isolated by the lack of contact.

4.35 We do not consider that this was a deliberate failing and consider it is more likely that for RP, as a busy person, time simply drifted, particularly without People Services acting as a reminder. We consider that the sheer number of staff that RP had direct line management responsibility for, together with all RP’s other responsibilities would have meant it was very difficult for her to keep on top of everything. But objectively, looking at it from the perspective of the Respondent’s responsibilities as an employer as a whole, the period was too long and was without reasonable and proper cause.

4.36 The next long term sickness meeting was then arranged for 10 May 2023. By the time of the meeting TF had taken over the process. We do not consider the gap between March 2023 and May 2023 to be unreasonable. The plan was then to meeting again in 4 weeks’ time, but the plan then changed to have a meeting after the Respect & Resolution meeting. We do not consider that was an unreasonable position to take because the Claimant had been clear that she needed resolution from her grievance before she could consider a return to work.

4.37 After the Respect & Resolution meeting on 28 June 2023, TF did try to promptly arrange a further long term sickness meeting for July 2023 but the date was pushed back to August 2023 because of annual leave of TF and CB and because CB suggested it may be better to get the grievance outcome first. So the delay at that point was understandable and reasonable. The date was then pushed back again to 6 September 2023 because of delays in progressing the Respect & Resolution outcome and the need to find a date everyone could do. In terms of the sickness absence process (as opposed to the Respect & Resolution process) we do not find this was unreasonable.

4.38 The next meeting was arranged for 25 October 2023, and again we considered that was a reasonable timescale. The plan was then to meet either in 4 weeks’ time or after the grievance appeal outcome and it was ultimately arranged for 3 January 2024. Bearing in mind there was the ongoing grievance appeal outcome that the Claimant had always linked to her ability to return to work, and the difficulties securing a date because of the Christmas period, again we did not consider that timescale to be unreasonable. It did not then go ahead because the Claimant said she was too unwell and she then resigned before the rearranged meeting.

4.39 We would add that in general the sickness absence meetings appeared to be well conducted and were supportive meetings. Those involved were trying to gently explore with the Claimant any opportunities to reintegrate her back to work but no pressure was being placed on the Claimant. The Claimant was not placed under any long term sickness formal process, or told, for example, that she was at risk of dismissal. She was being given the time she said she needed to complete the grievance process.

4.40 In summary, in the initial period of delay September to October 2002 and then October to March 2023 we did consider there were unreasonable failures to follow the sickness absence process and that this was likely to be harmful to trust and confidence. Thereafter, and once the process was in the hands of TF, even if there were any technical breaches of timescales we did not consider this was without reasonable and proper cause, or something that was actually harming the Claimant’s trust and confidence. In that latter period it was not really the sickness absence process that was causing problems for the Claimant. The cause was the handling of her grievance which then had a knock on effect on the long term sickness process. As we have already stated, the Claimant was not being placed under inappropriate pressures and was being offered support and wider opportunities to return to work if she felt able to do so. Mishandle the Claimant’s grievance and not provide an outcome in accordance with policy timescales

4.41 Viewed objectively we did not consider that RM was the most appropriate individual to handle the Claimant’s grievance in terms of RM’s rank and experience. Whilst appreciating what AD says about the wording of the policy, in the tribunal’s industrial experience it can be difficult for managers to handle complaints about an individual that is the same grade or higher grade to them, particularly when the complaint is about the manager’s behaviour and where difficult questions may have to be asked. There is also a risk of unconscious bias in terms of unknowingly being deferential. The tribunal’s industrial experience is that generally in a grievance of this type there would be an expectation that the grievance manager would be at a level above the grade of the highest individual being complained about. Further, whilst accepting that every grievance manager always needs to handle their first grievance, we also considered that RM lacked experience for a grievance of this complexity and against a colleague of the same or higher grade. We appreciate that AD was searching for a manager to hear the grievance, but the Respondent is a large hospital and we do consider that more effort should have been made to find a manager of an appropriate grade. In fairness to RM she did raise the point, but was guided by AD that it was appropriate to continue.

4.42 We make this point because in our judgement, it is relevant to the quality of the grievance outcome and how that outcome affected trust and confidence. We return to that point but look first at the grievance process itself.

4.43 There was an initial delay by TF between 22 April and 4 May in responding to the Claimant’s grievance and asking which route the Claimant wanted to proceed down. But TF had previously acknowledged the Claimant’s email and said she was catching up with things on a return from annual leave. We do not consider that was something that was objectively unreasonable or something that actually harmed trust and confidence at the time. Once in AD’s hands on 9 May, AD had appointed RM by 12 May.

4.44 AD was then trying to arrange the grievance meeting but there were difficulties with dates including the Claimant’s own representative, with the date ultimately being 28 June. Whilst this was outside the envisaged timescales the reality of workplaces is that it can take time to find a date that everyone is available, including trade union representatives. It is not something we consider was actually a big deal at the time, and was not conduct without reasonable and proper cause that was harmful to trust and confidence.

4.45 AD did fail to send RM the Claimant’s background documents in advance of that grievance meeting. As AD acknowledged at the time, she made a mistake. We appreciate people are human and make mistakes, but viewed objectively it was without reasonable and proper cause and was likely to harm trust and confidence to some extent. It also contributed to the overall delays.

4.46 We consider it very poor that there are no proper notes or minutes of the grievance meeting on 28 June other than the brief handwritten notes at [360-361] for a meeting that lasted an hour and a half. There are no formal minutes at all, let alone minutes sent out for comment/approval. It meant that RM and AD would have been proceeding on memory. The lack of notes or indeed any written communication as to the specific issues that were being investigated and responded to in the grievance process also meant that there were no agreed terms of reference. It is the tribunal’s industrial experience that an employer of this size would normally set out, and get agreement on, the specific heads of complaint they are being asked to consider and provide an outcome on, because it provides a framework and certainty for everyone involved.

4.47 Following the grievance meeting it took until 20 July for AD to contact the Claimant to get permission to speak to others about her grievance. We considered this to be unreasonable delay and something that should have been agreed at the grievance meeting itself with immediate steps then taken to book appointments with RP, KH and KM. There was then a further 11 day delay in not sending the requests to meet to RP, KH and KM until 31 July. By then it was over a month after the grievance meeting and was, in our judgement, unreasonable delay.

4.48 When CB asked for an update on 23 August, only KH had been seen. There were missed meetings with KM on 10 August and 5 September, the latter due to AD’s sickness absence. RP also had a missed meeting on 7 September. Their interviews were not completed until 19 and 22 September, now some 3 months since the original grievance meeting and when they should have been arranged in a timely manner right at the start. We appreciate that AD had a period of sickness and that there were difficulties with availability dates and periods of annual leave. We are realistic about the realities of that kind of situation. But this grievance was not being adequately driven forward. To take some examples, it was CB chasing on 23 August that appears to have triggered AD to get back in touch with KM about meeting, having missed the 10 August meeting. There were missed opportunities to make arrangements with RP before she went on leave or to diarise RP’s return to work and chase RP then. More could and should have been done by AD and RM to proactively plan and progress the investigation. Further, we consider that when AD was sick in September 2023, RM could and should reasonably have continued with the meetings with KM and KH. RM was the grievance manager not AD. Particularly bearing in mind the delay since 28 June, the meetings could have gone ahead with another HR officer stepping in. Acting reasonably, the Respondent should have been able to complete the interviews by the end of July with a decision then reached and the outcome letter then being promptly prepared and sent out. The Claimant had been absent from work since August 2022 with ensuing pay implications. Further, it was known to the Respondent that resolution of the grievance was key to any return to work. The delay during this time was unacceptable, without reasonable and proper cause and was harmful to trust and confidence.

4.49 Turning to the grievance decision itself, in our judgement it was not adequate. We consider there was a reluctance and a failure to clearly and expressly record and deliver outcomes that were in the Claimant’s favour, hence the link to our observations about the appropriateness appointing RM as the Respect & Resolution manager. That reluctance is demonstrated at the very start of the outcome letter where the expression is used that the treatment by the nursing management team “wasn’t unnecessarily unfair.” The triple negative in the expression makes its true meaning actually hard to decipher, but in any event in our judgement is redolent of the author stepping as far back as they can from the allegation and reaching a conclusion.

4.50 Whilst we accept AD’s evidence that in the Respect & Resolution Policy there was intended to be a movement away from the language of “upheld/not upheld”, an employee is reasonably entitled to an investigation of their complaint, findings being reached, and a reasoned outcome given. Moreover, whatever the policy move may be, RM told the Claimant her grievance was not upheld and to act in a way that does not undermine trust and confidence there then has to be a fair rationale for such a conclusion.

4.51 In relation to the Claimant’s staffing concerns, RM said in effect that the Claimant was not being ignored and concerns were escalated but enhanced conversations could have taken place which would have confirmed to the Claimant that her concerns were being raised. There is nothing wrong with the finding in itself or the wider findings in that paragraph, but in our judgement, that was the upholding of part of the Claimant’s complaint and there was no reasonable and proper cause to tell the Claimant her complaint was not upheld.

4.52 RM also found there were some delays in getting back to the Claimant, albeit not done maliciously, but down to operational pressures. RM said that better communication over this could have happened which could have supported the Claimant more in the workplace. Again, in reality this was a partial upholding of the grievance, in finding that whilst not done deliberately, there were delays and there could have been better communication about them. RM also observed that some parts of communications could be a little kinder, and that there were lessons to be learned in timely communications, more in person conversations and documented discussions. But again the Claimant’s complaint was not upheld without a reason why. Similarly, RM found that taking a senior nurse to the sickness meeting was reasonable, but should have been explained to the Claimant. Again, viewed objectively this should have been partially upheld.

4.53 In terms of the Claimant’s long term sickness, RM said two interviews were not sufficient and sets out the importance of regular contact, and yet did not uphold the complaint about the handling of the long term sickness absence .

4.54 In terms of working nights, RM said that a conversation with the Claimant would have been considerate after the Claimant had not worked them for so long. Yet again there was no upholding of this aspect and despite the fact the very essence of the Claimant’s grievance complaint on this point was about being rostered to work 4 nights out of 7 shifts without communication or notice [315].

4.55 The grievance conclusions in relation to the care of AT are inadequate and confusing. RM says she can understand why there would have been operational reasons to decline the request if the Claimant was in work, but was unsure why it was declined if the Claimant was not in work at the time it was requested. But she then goes on to say that it appeared to be because it might have further contributed to the Claimant’s stress. A conclusion should have been reached; questions could be asked of KH and the email chains were there to be read. RM should have been able to evaluate whether KH’s explanation for refusing it was a fair and adequate one. RM knew this was an issue of importance to the Claimant.

4.56 RM also says she was unable to establish why AT was eventually placed with the Claimant for respite care. But again KM was there to be spoken to and KM’s email was there to be considered. Again RM should have been capable of making an assessment of the adequacy of KM’s response. There was a failure to make a clear finding about what KH and KM did and whether it was appropriate. RM also made comments that a more compassionate approach may have helped to achieve a better understanding, and that there should be open communication about why decisions where reached. Again that appears to, in reality, be a partial upholding of the Claimant’s grievance.

4.57 In terms of the recommendations made, we do not consider there was sufficient specificity. The Claimant by this point had been off work for 14 months with no functioning line management relationship and with continued psychological ill health. We can understand RM seeking to encourage the Claimant back to work for the benefit of everybody and stressing the importance of rebuilding a line management relationship. However, there needed to be structure to it and someone managing it. There would need to be up to date OH advice to assist with knowing what the Claimant was fit for and when and what jobs would be available that would be suitable and in which the Claimant felt safe. There would need to be someone with appropriate experience working on rebuilding the relationship between the Claimant and RP, if that was the ultimate return to work route. There needed to be someone in a sufficient management position to make all these things happen and that in itself was complicated because of the breakdown in the Claimant’s relationship with all 3 of her immediate line managers. That is not to say that it was for RM to take this role on; but the grievance outcome needed a clear plan and the identification of someone with sufficient seniority to take responsibility for it. If the focus of the policy is on Resolution this was not an outcome that was equipped with achieving that.

4.58 Given what was in reality a partial upholding of the Claimant’s complaints on several grounds, or at least findings made in her favour, we also consider there reasonably should have been more concrete steps in terms of committing to giving feedback to those individuals about the findings and points of learning to take forward. There should also have been feedback given on the monitoring of long term sickness and ensuring that meetings were happening in a timely manner and whether there were any training needs in that regard. In relation to the Claimant’s complaints about the handling of the care of AT, there should have been feedback given about communications, but also ensuring that there was a process in place to sort out the parameters of the respite foster care arrangement. The commitment to looking at having a fostering policy was a positive one but it was not going to fix the actual need to have some parameters in place going forward in relation to AT. We do consider that RM’s lack of experience, and also the fact that she was not at a line management level above all of those involved in the grievance, has affected this lack of clear commitment to feedback to those involved.

4.59 The grievance outcome also did not address the resolutions the Claimant had sought in the grievance meeting around an apology and sanctions. This does not mean the Respondent was obligated to do those things but there should be an explanation given as to why that was not considered to be the appropriate resolution.

4.60 It was not sufficient, in our judgement, to simply say the Director of Nursing would be given a copy of the letter so he could look to deal and implement any changes deemed necessary. That did not give sufficient structure or certainty.

4.61 There were also aspects of the Claimant’s grievance that simply went unaddressed; in particular the complaint about disability discrimination by association and sex discrimination. The Claimant was entitled to a response to those complaints. We considered this was likely to be largely due to not having agreed terms of reference for the complaint at its outset.

4.62 In conclusion we consider that the timescales, the decisions, and the recommendations made were woefully inadequate. This is a large employer. It was without reasonable and proper cause and was very likely to and very much did seriously harm trust and confidence given the Claimant’s health and the crucial position of the grievance process and outcome in that regard and any potential return to work.

4.63 In terms of the grievance appeal while the formal anticipated timescales were not met, in context that the Claimant’s appeal taking place on 21 November 2023 was not unreasonable, and we do not consider any non-compliance with policy timescales in reality undermined trust and confidence at the time. What was actually of concern to the Claimant was not receiving the appeal outcome on the agreed date of 5 December and the appeal outcome itself.

4.64 DP had agreed to take on the appeal at short notice and he needed a period of time after the appeal meeting to consider everything so his request to the Claimant for a 14 day period rather than a 7 day period was sensible and appropriate. Given the confusion in RM’s outcome letter relating to the care of AT we could also understand why he wanted to go and speak to KM, KH and RM. We can also see from his email to BD of 11 December that DP had been struggling to find the time to complete the process. But if so, DP needed to contact the Claimant or CB and get agreement for more time. Not meeting the deadline he promised and not sending an update about that in the situation, viewed objectively was without reasonable and proper cause and would undermine trust and confidence.

4.65 In terms of DP’s decision, he did not address the Claimant’s complaint about being told RM had not upheld her grievance when it was apparent it should at least have been partially upheld. That was a central component of the Claimant’s appeal and it should have been addressed. Indeed, DP went on himself to acknowledge that communication in terms of mode, explanations, rationale, tone and timeliness could have been better and also that the communication in relation to AT was not to the standard he would expect.

4.66 DP also spent a fair part of his grievance appeal response addressing what happened when the Claimant was moved off the ward in June 2022 when AT was a patient. But that was a distraction from the focus of the Claimant’s grievance which was not about that and was about how the handling of her request to provide respite care when AT was between foster families. Again, if there had been clear terms of reference of the grievance grounds this would not have happened. In relation to the placement of AT when the Claimant was on sick leave, he did not explain why the decisions were said to be in the Claimant’s best interests and also in finding that the method of communication had not been adequate appears to have upheld part of the grievance appeal.

4.67 DP also did not address all of the Claimant’s appeal grounds; for example her complaints of associative discrimination and sex discrimination remained unaddressed. This is despite the fact that DP flagged this point up, along with other very pertinent points about the appeal grounds, when he annotated it when reading in to the grievance, as shown at [545].

4.68 In his decision section DP again failed to set out whether any appeal grounds were upheld or not and this was important for reasons already given in respect of how RM had told the Claimant her grievance had not been upheld. Indeed, the basic template appeal outcome letter sent to DP by BD says that there should set out for each appeal point what information had been gathered in the meeting or fact finding, and the statement of a decision and/or recommendations. Under the “Decision” heading it then says “As result of these findings, my decision is to <uphold/ not uphold> your appeal. ** If decision is to uphold the grievance confirm what actions/learning will be taken to resolve the matter**” yet these sections about upholding/not upholding have been deleted in the appeal outcome the Claimant was sent.

4.69 In terms of DP’s recommendations/actions they were improved in his direction there should be a facilitated meeting between the Claimant, KH and KM and a meeting with KM to agree future arrangements for AT. DP also directed there be feedback on the importance of ensuring sickness meetings were conducted in a timely manner. These were all sensible steps. However, he made no provision for feedback to those involved, other than in relation to the long term sickness policy, despite what remained in reality the partial upholding of some of the Claimant’s complaints. There was also no direction in terms of what a phased return to work would look like and who would be managing it given the breakdown in relationships with the management chain.

4.70 We therefore considered that, whilst it was an improvement on the original grievance response, it remained an inadequate grievance appeal response and those failings were without reasonable and proper cause and did harm the Claimant’s trust and confidence at a critical time given the length of time she had been on sick leave and the importance of the grievance resolution to any return to work.

4.71 The delay in delivering the appeal outcome, once it was written on 15 December 2023, was also conduct without reasonable and proper cause likely to undermine trust and confidence. DP was candid in his evidence that he was under pressure to complete his tasks prior to going on annual leave, and that he ultimately defaulted to using the post. But he had promised to email it. Moreover, DP should have put provisions in place to ensure the Claimant actually received the letter he had left to be sent recorded delivery; for example asking his secretary or HR to follow it up. DP was fully aware of the Claimant’s vulnerabilities. Whilst we accept DP was not in anyway seeking to cause harm, that people do make mistakes, and that he was busy in advance of annual leave, viewed objectively he should have done more to be certain it was safely received. The delay resulted in the Claimant facing additional stress and uncertainty over the Christmas period until it was remedied on 29 December. Again, it was conduct without reasonable and proper cause that did contribute to the undermining of trust and confidence. This handling of the grievance appeal in terms of its outcome and delay was the final straw for the Claimant, was more than innocuous and did contribute to a breakdown in trust and confidence. Allowing a culture of bullying on the ward and not addressing it

4.72 We found this allegation difficult to pin down because the allegation seemed to drift between whether it was about RP’s actions in addressing the Claimant’s complaints of bullying by others on the ward, or whether it was about RP’s general treatment of the Claimant.

4.73 In relation to the former, we do not consider that RP allowed a culture of bulling on the ward or unreasonably failed to address it. When the Claimant raised it, the Claimant did not want to make a formal complaint or be named. That constrained what RP could do about it but nonetheless RP took steps to speak to people about it in general without naming the Claimant and reassured the Claimant she was taking it seriously. We do not see what more RP could reasonably have done at the time. Whilst the Claimant argues informal action could be taken, the Claimant would need to be identified to take steps to build relationships with others whether by way of a facilitated conversation or a mediation and the Claimant did not want that. In our judgement the Claimant’s counsel seemed to be setting a counsel of perfection in that regard.

4.74 In relation to the Claimant’s general treatment by RP, we found no evidence at all that RP was bullying the Claimant. We have found that at times there were some failings but we consider that was no more than human error in circumstances in which RP had extensive job responsibilities and line management responsibilities for such a large number of staff. Overall assessment of the Constructive Unfair Dismissal claim

4.75 We have used expressions such as harming or undermining trust and confidence above, not because we have lost sight of the Malik test but because we have to consider the overall cumulative position which may be made up of smaller parts.

4.76 Conduct that we have found that was without reasonable and proper cause and was likely to undermine trust and confidence includes:

• The failure to adequately respond to the Claimant’s staffing concerns, particularly in September 2021 and July 2022 and in particular to have a conversation about how to support the Claimant to cope better in work with the staffing/ cover situation with Island ward so that it worked for the Claimant;

• Not having a discussion with the Claimant in advance of changing the roster so that the Claimant was working a series of night shifts;

• Not temporarily removing the Claimant from night shifts whilst the Claimant was being referred to OH;

• Mishandling the Claimant’s request to reduce her hours in July 2022;

• RP’s delay in responding to the Claimant’s request to take special leave to care for AT;

• KH’s decision to refuse permission to the Claimant to care for AT when the Claimant was on sick leave;

• KM’s delay in ultimately confirming the Respondent would not prohibit the Claimant from caring for AT when on sick leave;

• Delays in the sickness absence management process in September 2022 and then October 2022 to March 2023;

• Not setting terms of reference for the Respect & Resolution grievance process; the many delays in that process (including in not originally sending RM the Claimant’s grievance documents); and in the findings and outcomes that we have identified both at the first stage and appeal stage.

4.77 Looking at those matters cumulatively we do find they damaged trust and confidence and were without reasonable and proper cause and we find that the Respondent did behave in a way that was likely to destroy or seriously damage trust and confidence. The breach was a fundamental one and the Claimant was entitled to treat the contract as being at an end.

4.78 The matters that we have found constituted the overall breach were an effective reason for the Claimant’s resignation. Whilst we would acknowledge that the Claimant had a subjectively extreme reaction to RP as a manager and also to KH and KM in relation to AT, that does not mean that the Respondent was not in fundamental breach in the ways we have identified or that these things were not an effective cause of the Claimant’s resignation.

4.79 We therefore turn to the question of affirmation. The last breaching matter was the grievance outcome letter the Claimant received on 29 December 2023. The Claimant then resigned approximately a fortnight later on 12 January 2024. We do not find that the Claimant engaged in conduct that showed she was choosing to keep the contract alive even after the breach. The Claimant was unwell, and communicated to TF how unwell she was feeling. She was absent on unpaid sick leave. The Claimant had a short period of time to consider her position and then submitted her resignation. The time involved was referrable to that situation and process. It was not affirmation.

4.80 The Claimant’s was therefore dismissed. There was no fair reason for dismissal. The principal reason for the Respondent’s conduct in fundamental breach of contract was not the Claimant’s capability/long term absence nor was it some other substantial reason justifying the dismissal of someone holding the Claimant’s position because of a significant breakdown in relationships on Pelican ward. For example, the poor handling of the Claimant’s grievance was not because of either of these things and indeed the Respondent was, whilst poorly executed, seeking to return the Claimant to work and to rebuild relationships and did not themselves say that the situation was irreparable. Indeed they even gave the Claimant the opportunity to reconsider her resignation. The Claimant was constructively unfairly dismissed and that complaint is upheld. For reasons we set out below we do not find that the Claimant was discriminated against contrary to the Equality Act and therefore the complaint of discriminatory dismissal does not succeed.

4.81 The question of disability is in dispute. Disability is conceded from 27 October 2022, however the Claimant’s complaints date back to July 2022. The Claimant argues that she had a mental impairment with substantial adverse effects from at least 7 September 2021 when the Claimant took a period of sickness leave and requested a reduction in her working hours. It is argued she had reached breaking point by that time, with her mental health being in decline for many months prior to that. It is said that there was no improvement in the Claimant’s mental health after that date, and that in fact it continued to get worse. It is argued that by July 2022 it was likely that the effects were likely to last for at least 12 months as the effects which were present before September 2021 had only continued to worsen.

4.82 The Respondent points out that there is no medical evidence to support the Claimant’s contention she was disabled in July 2022 and that whilst there does not need to be a diagnosis there must be sufficient evidence to establish the statutory test. The Respondent’s counsel referred to case law about the circumstances in which medical evidence may be required. The Respondent points out that not only is there no expert medical evidence there are not even any GP records before the Tribunal. They state that the height of the medical evidence is that the Claimant was on sickness absence for work related stress from 14 August 2022 but she had not been to see her GP and did not see her GP until 18 August 2022. They argue that for the Tribunal to find the Claimant was disabled at the relevant time we would have to reject the OH report of 31 August 2022 where it was said there was no underlying health problem “at present” and that no work adjustments were required. The Respondent further argues that there is no evidence of any impairment in July 2022 and that the Claimant could essentially do everything other than work night shifts. It is said that there is no medical evidence to connect the mental impairments relied upon with working a night shift. It is further argued that in any event it would not amount to a substantial adverse effect on day to day activities but is an effect limited to some specialist nursing activities during a night shift.

4.83 We do not consider that there is objective evidence of adverse effects on ordinary day to day activities or indeed of symptoms of a mental health condition prior to September 2021. We have no medical evidence before us whatsoever other than the later OH report. Further, whilst the Claimant was sending her emails raising staffing and work related issues, as set out in the findings of fact, they are not written in a way that speaks of an impact upon the Claimant’s mental health or the carrying out of normal day to day activities.

4.84 We accept that the Claimant’s email of 7 September 2021 had a different tone. It was written as a cry for help, and she had a period of absence made up of a period of sick leave and some annual leave and made a request to reduce her working hours.

4.85 We would accept that when the Claimant was unable to work in September 2021, at that time there was a substantial adverse impact on normal day to day activities. But the question then becomes whether, on the Claimant’s return to work, that remained the case or whether that substantial adverse effect ceased.

4.86 The difficulty is that we have very little contemporaneous evidence to show an ongoing substantial adverse effect for the latter part of 2021 and the first half of 2022.

4.87 The Claimant does give some evidence as to claimed impact on day to day activities in her disability effects statement. However, we have to treat it with some caution because there are parts of her statement that do not clearly delineate what particular period of time she is referring to and in her own admission she admits that she cannot recall exactly when she started to feel overwhelmed at work with too many complex patients and insufficient staff to care for them.

4.88 What she does say is that after September 2021 when she walked into work she felt anxious, overwhelmed and was dreading what was coming. She says she would cry and feel distressed before the shift and needed to phone her partner to get her through the front door. She says she felt very anxious about seeing members of the Pelican team and that shifts became a challenge to get through, and could be crying with a child who was in considerable pain. She says she would cry when leaving work. The Claimant says she did not see her GP, not because she was well, but because requesting help from other professionals was difficult. She says that she was trying hard to function outside of work, particularly with exercise to try and compensate for her declining mental health. The Claimant says her sleep was disturbed due to worry. The Claimant says she made two drugs errors but we have no documentary evidence relating to that or dates.

4.89 The Claimant’s statement refers to her family life suffering and withdrawing from family life and her social life suffering but the difficulty with that evidence is that it is not clear what period of time that relates to and in her whats app to AW the spoke about the rest of her life being fine at the time. Further in her email to RP of 26 July 2022 the Claimant referred to not being overwhelmed or stressed in any other aspect of her life.

4.90 The high point of the Claimant’s evidence in terms of impact on day to day activities at this point in time is therefore her evidence about crying and struggling to get into work and difficulties with sleeping. Her counsel points to the fact that struggling, but still ultimately being able to undertake an activity, does not mean that the ability to carry out the activity has not been impaired. We acknowledge that point. However, we are not ultimately satisfied that there is sufficient objective, contemporaneous evidence before us to demonstrate substantial adverse effects at that point in time and we do not consider that the Claimant’s own evidence, with the uncertainties it contains is sufficient by itself.

4.91 In particular, the Claimant did not consult her GP at all. The Claimant’s counsel points to the Claimant’s whats app exchange with AW in the run up to the Claimant’s return to work in 2021 where the Claimant spoke of not feeling any better and how thinking of work made her cry, with the rest of her life going well. But the difficulty for us is that why then are there no more equivalent whats app messages setting out the Claimant’s ongoing feelings, if it was the case that position remained? Also why, if the Claimant was struggling and considered that her earlier request to reduce her hours had gone unactioned and she continued to need help in the period, why not chase it up in this interim period? The Claimant points out that her line managers describe her as being difficult to manage before she went off sick and that this is evidence that there was this ongoing substantial adverse effect at this time. But likewise RP said in evidence that the Claimant had always been like that, on occasions, ever since RP had known her. The Claimant was also in work. By her own account even by August 2022 her GP describing her as functioning in going for walks, jogging and cooking.

4.92 The Claimant’s counsel also refers to the fact that the Claimant was not working night shifts. But it is difficult for us to take this as evidence of a mental impairment having a substantial adverse effect on the Claimant’s normal day to day activities at this time because the Claimant had always disliked working nights or found them difficult. That is understandable but it does not necessarily mean that the Claimant had a mental impairment with a substantial adverse effect on normal day to day activities as opposed to being a non-disabled individual who found working nights difficult. Moreover, she was not being given night shifts to work in the period in any event.

4.93 We are therefore not satisfied on the balance of probabilities that there was an ongoing substantial adverse effect on normal day to day activities following the Claimant’s return to work in September 2021 for the remainder of 2021 and the first part of 2022.

4.94 The next question is then whether the substantial adverse effect on normal day to day activities resumed prior to the conceded date of 27 October 2022.

4.95 By 18/19 July 2022 RP described the Claimant as being very tearful talking about working nights. On 19 July 2022 the Claimant asked for a referral to OH regarding her dread of working nights that filled her with worry and anxiety and her concern she may not be able to remain in work. She asked for help. This was in addition to the Claimant referring to night shifts as being debilitating to work, and finding the recovery afterwards to be awful. On 26 July the Claimant asked to reduce her hours to make her working life better, and said that she was not overwhelmed or stressed in any other aspect of her life but the pressure on Pelican was too much. She also referred to being allocated nights as being the final straw and something had to give. By 1 August she was still feeling the same, reiterating her request to drop her hours and saying she was finding it really difficult to stay in work.

4.96 Based on this evidence, on the balance of probabilities, we do consider that by this time of around 18 July 2022 there was a substantial adverse impact on normal day to day activities which in turn is sufficient evidence of the existence of a mental impairment. We consider that by this point in time we do have sufficient evidence that the Claimant was finding the pressures of work overwhelming. We accept it is likely that by this time the Claimant was, as described in her witness statement, crying and feeling distressed before her shift and having to phone her partner to be able to get through the front door, and crying at the end of a shift. We consider it likely that by this point in mid July 2022 the Claimant was feeling dread as to what she would face in work each shift and finding each shift a struggle. She was struggling with sleep. That evidence accords with what the Claimant was reporting in her emails at the time, and that she was struggling to remain in the workplace, and with her repeated request to reduce her hours as means to try to cope.

4.97 The Claimant was at this initial time in July 2022 still in work. However, we accept that it was a daily, distressing struggle to attend work and that this should properly be considered as a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities. Someone cannot effectively participate in professional life if they are going about their professional life in acute distress or are struggling to get themselves into the workplace. The Claimant could do her job and go to work but only with great difficulty and in our judgement (having considered the Guidance) that amounts to a substantial adverse impact on normal day to day activities.

4.98 We consider the impact was beyond simply being an inability to work night shifts or simply being about not being able to do some limited specialist nursing activities in a night shift. In our judgement, one of the Claimant’s particular issues with night shifts at this point in time was that it involved lone working or working with less support and that linked to her increasing, long term concerns about risk and feeling vulnerable in the workplace. By this point it was not simply about finding night working in general to be debilitating. It was also not the case that there was only a limited effect on the Claimant in performing some specialist nursing activities in a night shift. Performing particular nursing duties was not the issue for the Claimant in themselves. It was, in our judgement, a more wholesale dread of night working, dread of lone working or working without sufficient support, and in turn feeling vulnerable about what could happen on any shift, which could be even worse on a night shift. So the night working, the sense of dread and crying, the difficulties sleeping, the difficulties getting herself through the door for any shift, were all interlinked. Hence why the Claimant was also asking about reducing her hours in work, and explaining she was struggling to stay in work.

4.99 The Respondent’s counsel rightly points to the OH report of 31 August 2022 where it was said the information provided does not indicate there is an underlying health problem at present, that work adjustments were not required, and that working night shifts was a managerial issue and not within the remit of OH. But we do not know why the OH practitioner said there was no underlying health problem at the time. One interpretation is, for example, bearing in mind the question posed is: “Is there an underlying health problem causing this pattern or level of absence?” that it could have been a reference to the fact the Claimant’s symptoms were relatively new at that point in time and therefore not indicative of, for example, a long term depressive disorder. The OH practitioner was not saying there was nothing wrong with the Claimant at all: they record the Claimant being signed off work with the potential for a further fit note; the Claimant reporting low mood, tearfulness, burnout, worry, anxiety about returning to work; a need to rebuild her emotional and psychological resilience; being temporarily unfit for work with no timeframe for a return at that point; the need to prevent further deterioration in her symptoms; and the recommendation of a stress risk assessment. We therefore gave careful consideration to the OH report and the Respondent’s submissions, but did not consider that it prevented our findings on the evidence before us that there was a substantial adverse impact on normal day to day activities and that this stemmed from a mental impairment.

4.100 The next question is whether that substantial adverse impact on normal day to day activities was likely to be long term. Here, based on the position at the actual time, we cannot find that it met the required definition. The substantial adverse impact started in July 2022 and we cannot find that at that point in time it was likely that it would last 12 months or more. The substantial adverse effect was very new. The Claimant was in the workplace, albeit struggling be there. Even when the Claimant started sick leave in August 2022 it was initially under a time limited sick note. The Claimant had not seen her GP at all in July 2022 and when the Claimant did see her GP on 18 August the GP noted the Claimant was functioning in other aspects of her life. The OH report spoke of there being no indication of an underlying health problem at the time and about the Claimant’s symptoms being likely to improve if the stress could be reduced. We can see no evidential basis on which to conclude that in July 2022 (or indeed in August or September 2022) that this recent substantial adverse effect on normal day to day activities was likely last at least 12 months. That it ultimately did so, and the Claimant did not ultimately ever return to work, cannot bridge that gap because we have to assess things as they were in that summer of 2022.

4.101 As a result we do not find that the Claimant was a disabled person prior to the date conceded by the Respondent of 27 October 2022. Discrimination arising from disability

4.102 The complaint of discrimination arising from disability cannot succeed because at the time of the thing said to arise in consequence of disability (the Claimant’s sickness absence in August 2022) the Claimant was not a disabled person. Indeed, we would add that we would also have found that the Respondent did not know and could not have been reasonably expected to know the Claimant was disabled at that point in time. The Claimant had only recently commenced a period of sickness absence under a 4 week fit note. The OH report had not yet been obtained. The Claimant was saying she was well enough to provide foster care for AT. RP’s evidence, who knew the most about the Claimant’s situation, said that when the Claimant initially went on sick leave she had no reason to suppose it would be long term, hence why she processed the requested reduction in hours as she thought it might help the Claimant to return to work. The complaint is not well founded and is dismissed. Failure to make reasonable adjustments – working nights

4.103 The Respondent accepts there was a PCP of requiring the Claimant to work night shifts that was applied by rostering her for nights from July 2022 onwards, but disputes the Claimant was disabled, and also disputes knowledge of disability, or that there was a substantial disadvantage, or knowledge of disadvantage, or a need for an adjustment, or that any adjustment would be reasonable to avoid any disadvantage, or that the complaint is within time. The Respondent’s position is that this alleged failure to make reasonable adjustments relates to July 2022, and that it (if it is valid complaint at all) happened on 19 July 2022 when the Claimant was asked to cover night shifts where cover was short. The alternative position is that the Claimant’s case is that the adjustment should reasonably have been made shortly after her request on 19 July 2022, again triggering the operative time limit.

4.104 The Claimant submits there was substantial disadvantage, and that there was an ongoing disadvantage, and an ongoing duty to make reasonable adjustments. The Claimant’s counsel seeks to carry on through to the conduct of the grievance procedure and argues there should have been reassurance that the Claimant would not have to work nights on her eventual return to work.

4.105 The pleaded case at paragraph 51 of the particulars of claim at [41] says: “The Respondent failed to make a reasonable adjustment under s20 Equality Act 2010 in terms of night working in July 2022. The PCP was the contractual requirement to work nights. This placed the Claimant at a substantial disadvantage due to disability because working nights generated considerable distress and anxiety for the Claimant.”

4.106 In terms of rostering the Claimant for night shifts in July 2022 a complaint of disability discrimination cannot succeed. This is because we have found that the Claimant was not disabled at that time.

4.107 There is a dispute about whether there is any other complaint of failure to make reasonable adjustment before us relating to night shifts after July 2022.

4.108 We find that there is not any other such complaint before us because the pleaded case at paragraph 51 of the particulars of claim clear refers to July 2022: it says the Respondent failed to make a reasonable adjustment in July 2022. This complaint of failure to make reasonable adjustments therefore cannot succeed and is dismissed.

4.109 However, we would add that we would have dismissed the complaint in any event. Firstly, because when the Claimant and RP met in October 2022 we do not find that the Respondent at that point in time had knowledge of disability. In particular, for reasons already given we do not consider that at that point in time the Respondent could have reasonably have known the substantial adverse effects were likely to be long term.

4.110 The question then becomes when the duty to make reasonable adjustments would have been first engaged, if it ever did. That involves establishing the PCP, disability, knowledge of disability, substantial disadvantage, and knowledge of the substantial disadvantage. Thereafter there is the question of whether there was a failure to take a reasonable step to alleviate the disadvantage and, if so, when.

4.111 We would accept that as the grievance process progressed the Respondent was likely to have known or reasonably should have known the claimant was likely to be a disabled person; primarily because of the longevity of the Claimant’s ill health and absence from work. But we would not find that the Respondent knew or reasonably could be expected to have known that the Claimant was facing at that time a substantial disadvantage due to disability because working nights generated considerable distress and anxiety for the Claimant. The OH report had not drawn the link between a mental impairment/disability and the Claimant’s difficulties with working nights as opposed to just having difficulties with working nights. The Claimant was also not in the workplace and had not said that the situation with working nights was what was preventing her from returning and indeed that was not the situation.

4.112 Further reasonable measures to alleviate the disadvantage of stress and anxiety were in place for the Claimant because she had been told night shift working would be looked at again in respect of any return to work, including the temporary duties that TF was trying to get the Claimant to consider.

4.113 There was not any fresh deliberate decision to not remove the Claimant from night shift working. There was not any act inconsistent with the duty to make adjustments. TF in our judgement had communicated to the Claimant that such arrangements would be looked at in advance of a return to work. RM in the grievance outcome had also said that there should be a conversation about working hours to best support the Claimant in the workplace.

4.114 It is particularly notable in that regard that the Claimant was not, in our judgement, telling TF or RM at the time that what was stopping her returning to work was a contractual policy about night shift working. As the Claimant herself says she was not fit for work. What was stopping her return, in our judgement, was her ill health, and her outstanding grievance. She needed a resolution to that grievance and one which was subjectively acceptable to her. That the Claimant could return to work if given further reassurance about night shift working, was not the position at the time nor was it what the Respondent was being told at the time. Furthermore, the pleaded disadvantage is not set out as being that the Claimant could not return to work without being given further reassurance about night shift working. The pleaded disadvantage focuses on distress and anxiety caused by night shift working and focuses on July 2022. That accords with what the Claimant also wrote in her grievance at the time [315] which was about the decision to roster the Claimant on to nights in August 2022 with no communication or notice (hence why that was the focus of RM’s consideration). The Claimant did not say in her grievance report that night working was keeping her from returning to work. Likewise, it was not said in the grievance appeal document which did criticise the OH report and suggested there be a fresh referral for clarity in light of those criticisms, but did not say it was needed for a return to work.

4.115 The Respondent was reasonably addressing what was in fact before them. In that context there was never, in our judgement, at the actual time a situation of the Respondent knowing of a substantial disadvantage related to disability (as the case is now put) and leaving that disadvantage unreasonably unaddressed so as to amount to a failure to make reasonable adjustments or, indeed after a period of it being unaddressed, amounting to an omission triggering the relevant time limit. The complaint did not arise. Failure to make reasonable adjustments – handling grievances

4.116 In relation to the complaint about the handling of grievances, we do not find that there was a PCP of “not progressing or handling grievances in a timely manner and in accordance with policy timescales.”

4.117 The Claimant argues that there was such a policy, referring to AD’s evidence that a grievance can typically take 1 to 2 months albeit due to commitments with day jobs and clinical duties timescales often slip. The Claimant says that RM and DP made similar admissions and that they prove the Respondent considers the progression of grievances to be of lesser importance to the day jobs and clinical commitments of those involved in handling the grievance and that this is a PCP.

4.118 We do not consider on the evidence before us it has been shown there was a policy in place of not progressing or handling grievances in a timely manner or in accordance with policy timescales. In relation to the Claimant’s grievance, delays and slippages happened because of a whole host of individual situations, such as annual leave, or individual commitments, or sickness absence or human error but it was an overall failing made up of its small individual parts. We do not consider that is indicative that this would be some kind of general position or of the existence of a provision, criterion or practice of not meeting policy timescales. That the witnesses say delay can sometimes happen, or that managers have to make decisions about how to manage their workloads, or that in our judgement more reasonably should have been done to expedite the Claimant’s grievance as set out in our analysis of the constructive unfair dismissal complaint, does not make it a policy of not complying with timescales or handling grievances in a timely manner.

4.119 It is particularly notable in that regard that no other examples were put before us. The Claimant is represented by the RCN who would have relevant knowledge. Moreover, the RCN obtained sizeable information about other grievances that is in the supplementary bundle and yet no submissions were put before us at all about what that information supposedly shows and is telling in its absence. This complaint of failure to make reasonable adjustments is not well founded and is dismissed. Acas Uplift

4.120 We were asked to address the question of an Acas uplift at this stage.

4.121 Section 207A(2) TULR(C)A provides that: “If in any proceedings to which this section applies, it appears to the employment tribunal that –

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) the failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25 per cent.”

4.122 Under section 124A ERA any adjustment only applies to the compensatory award.

4.123 Under paragraph 4 of the Code employers and employees should deal with issues promptly and not unreasonably delay meetings, decisions or confirmation of decisions. Under paragraph 33 employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received. Under paragraph 34 employees should explain their grievance and how it should be resolved. Consideration should be given to adjourning the meeting for any investigation that may be necessary. Paragraph 40 provides that following the meeting the employer should decide what action, if any, to take. The decision should be communicated in writing without unreasonable delay and set out what action the employer intends to take to resolve the grievance. Where an employee feels their grievance has not been satisfactorily resolved they should appeal and under paragraph 42 appeals should be heard without unreasonable delay. The outcome of the appeal should be communicated in writing without unreasonable delay.

4.124 In this case the Code of Practice applied to the Claimant’s grievance. We find that the Respondent did fail to comply with the Code. In particular, there was unreasonable delay in conducting the investigations, deciding what action to take, and communicating that to the Claimant. The outcome of the appeal also was subject to unreasonable delay. We consider that the failures were unreasonable and that it is just and equitable to increase the compensatory award to the Claimant. We consider that an appropriate figure is 10%. We find this because this is not a case in which there was no procedure followed at all. There was a grievance meeting, an investigation, an outcome with reasons, and the right of appeal. However, the Respondent is a sizeable employer and notwithstanding the pressures in the NHS the delays were unacceptable and 10% is an appropriate figure in the circumstances.

4.125 The remaining remedy issues for the successful constructive unfair dismissal claim will be determined at a remedy hearing, unless the parties are able to agree terms. We would encourage them to try to do so, using the services of Acas if of assistance. Approved by: