Mrs M Matthews v Sheffield Teaching Hospitals NHS Foundation Trust: 1801600/2020

EMPLOYMENT TRIBUNALS

Case No 1801600/2020

Between

Mrs M MatthewsClaimant

Sheffield Teaching Hospitals NHS Foundation TrustRespondent

Before

Employment Judge Maidment

Members

Mr G Corbett

Mr D Dorman-Smith

Mr A Weiss (instructed by Counsel) for claimant

Mr A Sugarman (instructed by Counsel) for respondent

Date 14 January 2020

JUDGMENT

[1]The claimant’s complaint of unfair dismissal fails and is dismissed.

[2]The claimant’s complaints of disability discrimination fail and are dismissed.

[3]The claimant’s complaints of breach of contract and, in the alternative, for unauthorised deductions from wages fail and are dismissed.

REASONS

Issues

[1]The claimant was employed by the respondent as a radiographer. Her employment was terminated during a period of ill-health absence. The claimant maintains that her dismissal was unfair. The claimant also contends that she was a disabled person at all material times by reason of her suffering from anxiety and depression. She contends that she was a disabled person at all times from September 2018. The respondent admits disability status, but argues that this applied from February 2019 only. The claimant claims that her dismissal was an act of unfavourable treatment arising from her disability.

[2]Three separate reasonable adjustments complaints are brought in respect of, firstly, an alleged practice that to achieve promotion from band 5 to 6, employees had to undergo self-taught training. This is said to have put the claimant at a disadvantage due to her anxiety and it is said that structured training ought to have been provided as a reasonable adjustment. Secondly, the claimant relies on a practice of band 5 radiographers working at multiple sites. This again is said to have disadvantaged her in the stress and anxiety caused, in particular, in having to work at the Royal Hallamshire Hospital. As a reasonable adjustment she says that she should have been limited to working at the Northern General Hospital only. Thirdly, the claimant relies on the respondent’s attendance management procedures which disadvantaged her due to her inability to maintain regular attendance. As reasonable adjustments, she says that her termination date ought to have been deferred to give time to enable her to recover, she ought to have been restored to band 6 pay (a source of stress), there ought to have been a bespoke procedure to review grievance decisions, there ought to have been a phased return and she ought to have been provided with a senior colleague to shadow her work and act as a buddy.

[3]Finally, a distinct breach of contract or, in the alternative, unauthorised deduction from wages complaint is brought in respect of a change from band 6 to band 5 pay with effect from 3 December 2018. Evidence

[4]The tribunal had before it an agreed bundle of documents numbering some 1183 pages. Before the tribunal commenced hearing evidence, it was presented with a separate 34 page bundle of additional documents. The tribunal, after discussion, accepted all of these in evidence as being potentially relevant documents and where late disclosure did not prejudice the parties in circumstances where they had a full opportunity to take instructions and deal with them. The documents included what was suggested to be a record of a mentorship of the claimant, but in circumstances where the mentor was not appearing as a witness. That might indeed affect the weight such documents could be given, but the claimant was certainly able to give evidence as to whether the suggested meetings had taken place and as to their content. The claimant was also able to respond to the notes of a grievance hearing on 13 June 2019 which she had attended.

[5]Having identified the issues with the parties, the tribunal spent the remainder of the first day of the hearing privately reading into the witness evidence and relevant documents. The tribunal then heard firstly from the claimant, who gave her evidence with reference to her written witness statement and an additional disability impact statement contained within the bundle. The tribunal then heard from her husband, Warren Matthews, whose evidence was also contained in an earlier prepared impact statement and an additional statement exchanged for this final hearing. On behalf of the respondent the tribunal then heard from Paula Bailey, Operations Director of Laboratories, Engineering, Gynaecology, Imaging, Obstetrics and Neonatology (“LEGION”), Robert Gee, Manager for General Radiography, Ian Scott, at the relevant time Programme Director for the Specialised Cancer Transformation Programme and finally from Victoria Leckie, at the relevant time Operations Director of the Musculoskeletal Care Group.

[6]Having considered all relevant evidence, the tribunal makes the following findings of fact. Facts

[7]At all material times the claimant was employed as a radiographer. Her employment with the respondent commenced on 6 September 2010.

[8]The respondent had in place a managing attendance policy which had separate sections for managing short-term intermittent absences and longterm ill-health absences. The latter provided for a stage 1 review meeting if an employee was absent for 28 consecutive days or more. A stage 2 review meeting was to be held if an employee had been absent for a total of 4 months. An option at that stage was to confirm whether or not the employee would be referred to a Consideration of Continued Employment Meeting at stage 3, which might result in a termination of their employment. Such a stage 3 meeting would ordinarily be held if absence had continued for more than 9 months with no agreed return date or if an individual was unable to return on a return date agreed at the stage 2 meeting. In addition, at the manager’s discretion, there might be cases where it would be fair and reasonable to curtail procedure, i.e. cut it short, for instance, if it was clear that an employee would not be able to return to work in any capacity within 9 months of absence or where there was a repeated triggering of stage 2 of the policy.

[9]The claimant started off as a band 5 radiographer in 2013 - within the general radiology department – essentially, she was the person who took the films and x-rays. A band 6 role in that department involved supervising and training others and taking responsibility for and directing workflow. The band 6 radiographers organised the rota together with band 7 managers. Progression to band 6 necessitated an application when a vacancy arose and success in a competitive interview process.

[10]Radiographers also, however, were employed in specialties including working in a Picture Archiving and Communication System team (“PACS”). Within that team, individuals progressed automatically to band 6 on the completion of specialist training. A band 6 role within PACS was a specialist role rather than a leadership one (as in general radiography), although they undertook some training of band 5 radiographers.

[11]Whilst then the claimant had previously worked in the general radiography department, she was seconded to the PACS team in 2015 before taking up a permanent position within it in May 2016. The view of Mr Farouk Nassim, Deputy PACS Manager, was that this appointment was to start at band 5 and progress to band 6 on attaining the relevant PACS competencies. The claimant raised a grievance in this respect on the basis that she had done 6 months in PACS already and believed there had been a lack of relevant training. The claimant was successful in her grievance, said that she had then been provided with proper training and was formally signed off as a band 6 PACS radiographer in March 2017. Her band 6 pay was backdated to September 2016 as that was the date by which she would have been signed off, had the necessary training been provided earlier. The claimant told the tribunal that she had been happy with that outcome.

[12]When in the PACS team, the claimant also undertook some on-call shifts in the general radiography department. The requirement in that department was for band 5 radiographers and the work carried out when on call was at that level. On that basis, Mr Gee, as Manager for General Radiography, considered it appropriate that they be paid at band 5 rates when working on call. He realised, however, that for a period the claimant was paid at band 6 for the work. He told the claimant that she would only be paid then at band 5. The claimant raised a further grievance around 11 June 2017 which resulted in ultimately an outcome on 12 February 2018 from Karen Glencross, Medical Imaging Manager, in the claimant’s favour - it was felt that a precedent had been set by another radiographer from the PACS team having been paid band 6 whilst on call. The claimant received a payment in respect of arrears of wages. In the meantime, there had been discussion with the claimant as to what she would need to be able to demonstrate to be regarded as a band 6 when working in general radiography. This included a meeting on 8 November 2017 with Hayley Whitton, who provided the claimant with a copy of the Senior Development Programme – a checklist of competencies to attain. The claimant referred to a confusion in that people thought she was already a band 6 and didn’t need any help to gain these competencies. She recorded in an email to her union representative that Ms Whitton acknowledged that she would struggle to get these competencies.

[13]The claimant’s evidence was that she began to be concerned over the way Mr Nassim was treating her after raising her first grievance. She agreed, however, that she was mistaken as to the dates when she had said in her evidence that she had been absent in February 2017 as a result of stress and anxiety. This in fact came later. She told Mr Nassim on 26 May 2017 that she had already mentioned that the atmosphere at work made her feel uncomfortable, but that she had not been taken seriously. He responded by email on that day saying that the claimant had previously mentioned having headaches. He assumed her now wearing glasses was related to those, but this was the first time she had mentioned stress which was why he had, that day, suggested she contact the Workplace Wellbeing Service. There was no earlier reference to stress. The claimant did not contact them - she told the tribunal that she felt this service might have reported back to Mr Nassim and she could only trust her GP.

[14]The claimant visited her GP on 5 June 2017. Her medical notes for that day recorded a history of headaches for 10 years and the claimant suffering stress due to workload issues. The claimant told the tribunal that 3 radiographers had recently left and there was only herself and one other band 6 in the PACS team. The claimant was absent for 2 working days. The claimant in her disability impact statement paints a very bleak picture of her health and stress related conditions from August 2016. Her description of her health included experiencing migraines every day, anxiety triggering her IBS and frequent vomiting. It is not accepted. This is not borne out by her GP records. For instance, on 27 September 2016 the claimant reported headaches, dizziness and poor memory but “no vomiting… says not stressed or anxious”. On 12 October 2016 she described herself as generally tired but not depressed. The GP notes include no reference to depression until 2018.

[15]The claimant returned to her GP on 7 August 2017 describing tennis elbow, but saying that she felt a lot better in herself. This did not reflect her suffering from migraines, high blood pressure, anxiety disorder and depression with difficulty in sleeping as she described in her impact statement. Her GP notes of 23 and 24 December 2017 referred to earache, dizziness starting and a blocked ear. The claimant said that she had not reported her full medical history and that she was trying to resolve issues at work without going to her GP about them. Her impact statement was that she had struggled with symptoms of dizziness, migraines, memory loss, lack of concentration, mood swings, insomnia, night sweats, hot palpitations, high blood pressure and a foggy brain since September 2017. Such statement cannot be accepted as accurate. Had the claimant felt this way it is inconceivable that the symptoms would not have been reported to her GP in circumstances where the claimant was not averse to seeing her GP over more minor issues.

[16]The claimant’s relationship with Mr Nassim during 2017 had been problematical for her. She raised her issues by email on 11 June 2017 to Mr Steve Braithwaite, PACS Manager. He responded by letter of 4 July 2017 following a meeting he held with her on 14 June. The pay band for her substantive position was discussed but also that she didn’t feel that Mr Nassim was very supportive and had told her that she was asking too many questions. She found him to be sometimes rude. It was raised that she felt intimidated and harassed by him, although she acknowledged that he would probably be upset to learn this as he had been under pressure himself. Nevertheless, she felt he was targeting her. The claimant said she had spoken to Mr Nassim and explained that sometimes he passed his own stress onto her without realising that he was doing this. It was agreed that Mr Braithwaite would facilitate a meeting between the two of them to discuss the claimant’s concerns. The claimant said that she had since spoken to Mr Nassim and he appeared now to understand where the claimant was coming from. The claimant was advised to keep talking to Mr Nassim, but that if she couldn’t, she should come to Mr Braithwaite. The claimant responded on 7 July to say that she was happy with the outcome.

[17]Informal discussions between them did not however resolve the relationship issues. The claimant was unhappy at being allocated a Christmas shift and had asked Mr Nassim to work it as he (she considered) didn’t celebrate Christmas. She felt then that his reaction showed a lack of respect for her as a Catholic.

[18]Mr Nassim raised a complaint about the claimant’s behaviour towards him on 25 January 2018. The claimant agreed that he couldn’t have known that she was herself on the point of complaining about him. She did so on 1 February 2018. She described her stress level as building up, that there was no support from him and it felt like he was looking to find failings in her.

[19]The claimant was absent due to sickness from 12 February 2018. She had still been unaware by that date of Mr Nassim’s complaint. Ms Glencross undertook a welfare meeting with her on 15 February where it was discussed that the claimant was absent due to work-related stress. This was said to relate to her work in the PACS office and mainly due to communication issues with Mr Nassim. Ms Glencross recorded that the claimant felt that it might be beneficial for her to be able to have a break from the PACS team and that they agreed that if she felt well enough to return to work, Ms Glencross would arrange for her to work her substantive hours in the general x-ray department on her current terms and conditions. She explained that it was common during an investigation process (one was now underway under the respondent’s Acceptable Behaviour at Work (“ABAW”) policy) for employees to be offered temporary alternative working arrangements until the investigation was concluded. The claimant agreed in evidence that this was accurate, though she wished to emphasise that she understood that she would continue to be paid at band 6, (although she then tried to row back from that in cross-examination to suggest she was being punished by a change in role). Ms Glencross emphasised in her letter following the meeting that any move was not to indicate a determination of the outcome of the investigation. The claimant did not question the contents of that letter and there is no evidence that the outcome was predetermined or that the move from PACS was not something the claimant had raised herself.

[20]By letter of 23 February 2018 Mr Braithwaite wrote to the claimant to explain that a full fact finding ABAW investigation was to take place and that there was due to be a meeting with the claimant on 5 March 2018. The claimant had previously signified that she was prepared to attend such meetings whilst absent due to sickness.

[21]The claimant had seen her GP on 12 February with work related stress. No anti-depressants were prescribed at that point, but medication was taken to combat anxiety from 29 March after the claimant had described poor sleep, constant thoughts, being snappy, having no motivation on some days, not going out much, poor concentration, forgetting things and being tired/stressed. The claimant had described to her GP on 19 March feeling dizzy and crying with the trigger being the stress at work. She said that she dreaded going back. On 12 March, she had told her GP that she was looking for other employment.

[22]An attendance review meeting was conducted by Ms Glencross with the claimant on 17 April 2018. The content of the meeting was confirmed by Ms Glencross by letter of 19 April. The claimant was accompanied by her union representative. The claimant described herself as experiencing dizzy spells and having recently commenced antidepressants due to low mood. She referred to a lack of sleep and poor concentration. She said that she was not driving and even getting around the house was difficult. The claimant confirmed that the symptoms were all work-related. Ms Glencross recorded offering the claimant the option of returning to a temporary alternative role working 3 days on a phased return basis whilst the investigation took place. She noted that the claimant’s union representative supported the suggestion. A suggestion in a previous occupational health report of 23 March 2018 was noted of the claimant asking for a period of retraining. The claimant explained that this was more support than training. Ms Glencross had expressed some surprise as during the previous grievance process she said that the claimant had informed her that she was more than capable of performing as a band 6 radiographer.

[23]The claimant received a letter dated 11 June 2018 updating her on steps taken and to be taken in respect of the ABAW behavioural complaints. There was reference to the claimant being due to attend a meeting with the investigator on 14 June. Before the tribunal, the claimant said there was no reason why she would object to the matters being dealt with under the ABAW policy. She simply hoped that the respondent would resolve matters. The policy envisaged the production of a final report with a copy being provided to the complainant and the alleged perpetrator. There was no reference to the provision of documents or statements gathered during the investigation itself.

[24]As part of the investigation the claimant had submitted her own written statement. This included references to the separate issues regarding pay. The claimant said she was providing this to give an overview and as background. The claimant then indeed attended the aforementioned meeting with the investigator, Mr Richard Scott, on 14 June. Mr Nassim had already been interviewed on 5 March. The tribunal was taken to notes of investigation meetings with a number of the claimant’s colleagues. Rebecca Churchill described the claimant as headstrong and never wrong and Mr Nassim as headstrong and tactless. Steve Horrabine referred to the claimant as moaning too much and finding her to be hard work, with her raising issues regarding on-call work all the time. Zoe Lomas, who got on well with the claimant personally, described a clash of personalities between the claimant and Mr Nassim. She referred to the claimant asking for advice every day with the same questions and same scenarios. Richard Worsley described the claimant and Mr Nassim as both being stubborn. Mr Nassim was quiet but sent a lot of emails. Amanda Hockney, with whom the claimant also got on well personally, described a clash of personalities, but that Mr Nassim did not treat the claimant differently than others. An administrative employee, Tracey, referred to a clash of personalities, but referred to Mr Nassim as a fair boss. Tanya Capshaw described the claimant as being very headstrong and Mr Nassim as not liking conflict.

[25]The claimant attended an attendance review meeting at stage 2 of the respondent’s managing attendance procedures on 21 June and received a letter from Ms Glencross summarising their discussions. The claimant advised that she felt her health was improving slowly. The earlier investigation meeting with Mr Richard Scott was described as positive. It was noted that the claimant had advised that she had considered her options and would prefer a phased return to work in the general x-ray department at the Northern General Hospital. It was agreed that there would be a phased return over 4 – 6 weeks until the investigation was concluded and the claimant could then return to her substantive role in the PACS team. The claimant told the tribunal that she wished to safeguard herself by working in general x-ray. She said that she was frightened about going back to the PACS team as she would have to work with Mr Nassim and he was the cause of her stress.

[26]The claimant attended a further stage 2 attendance review on 18 July 2018. The claimant advised that she was feeling slightly better although not yet fit to return to work. There was some discussion of some Facebook activity relating to the claimant restoring furniture. The claimant explained it was a hobby which she found to be therapeutic. The claimant’s union representative said it might be wise to restrict social media activity to outside normal working hours to avoid incorrect perceptions. As recorded in Ms Glencross’s letter confirming the content of this meeting, the claimant said that she did not want to return to her substantive post in the PACS team regardless of the outcome of the investigation and asked about the possibility of alternative employment. Ms Glencross advised her to wait until the outcome of the ABAW process. The claimant said that the reason for her request was again a desire not to work with Mr Nassim. She told the tribunal, however, that there was no plan to support her although she could not say what support she felt she ought to have been given at this time.

[27]It is noted that the claimant received a letter dated 14 August 2018 from Paula Bailey providing an outcome as a result of a grievance hearing on 8 August 2018 on a different matter. This related to Ms Glencross’s refusal to cancel a period of pre-booked annual leave when the claimant was absent from work due to sickness. However, at the meeting it had been explained to the claimant that she had not incurred a financial detriment and, because she had taken annual leave, her entitlement to full pay during sickness expired at a later date. Following an adjournment, the claimant said that now she understood the financial side, she wished to retract her grievance which also covered a number of additional issues.

[28]The claimant was seen by occupational health on 24 August 2018. Their report noted that the claimant stated that she struggled and it would be detrimental to her health if she was required to work with Mr Nassim. The workplace issues had been addressed and she would prefer to work in the general x-ray department. It was hoped that the claimant would be fit to return in some capacity on a phased return in around 4 weeks. Occupational health advised that the claimant’s triggers for attendance management be adjusted and that it would be of support to have a phased return. It was advised that an action plan be put in place and consideration should be given to the claimant having short notice annual leave should she experience a flare-up in problematical symptoms. The claimant foresaw that she could cope with her duties and there were some outstanding training requirements. In terms of a return to full fitness, occupational health was unable to advise on timescales. It was hoped that the claimant would be able to achieve stability with her anxiety with the appropriate support. As regards disability status, it was said that this was a legal and not a medical question, but it would be prudent to put in place any reasonable adjustments should they be required and it was advisable that the claimant be managed as if a disabled person in relation to her long-term mental health condition of anxiety and physical manifestations of stress.

[29]It was put to the claimant in cross examination that there was no reference to any difficulty working at alternative hospital sites or to her having difficulties with any self-guided learning. The claimant said in respect of the former point that she understood that she would be mainly based at the Northern General Hospital and in respect of the latter that the meeting was about her health.

[30]The claimant attended a further attendance review meeting on 29 August. The occupational health report was discussed and a phased return over 6- 8 weeks could be accommodated in general radiography. This was a temporary arrangement pending the report of the ABAW investigation. When asked for her preferences, the claimant suggested working 2 days initially and gradually building her days up over the period of phased return. Ms Glencross suggested that it might be beneficial to have a mentor or workplace buddy during a phased return and she identified one of the superintendent radiographers, Debbie McGarty as a suitable mentor. Ms Glencross said that she would share the minimum details regarding the claimant’s sickness absence and ask her to provide the claimant with support in the workplace.

[31]The claimant in her impact statement referred to her symptoms of anxiety and stress having risen very high during the ABAW investigation and that she was feeling sceptical regarding the phased return to work. She said that she had to seek a move to permanent part-time hours so that her dizziness and other symptoms did not increase again. Anxiety levels and symptoms were such that she did not feel able to work on a full-time basis anymore. She was asked in cross examination how she could explain why had started a 2 year BTEC diploma in dental technology from 12 September 2018. The claimant said that her psychologist had told her it would be good for her to do some courses and this would be with a different environment and people. She had not in fact start of the course until October. She agreed that it involved her attendance at Sheffield City College 2 days per week with assignments to complete at home. She felt that the course related to the work she was doing with the respondent and that if she had felt better she would have come back to the respondent full-time. She explained that she had incurred just under £7400 in fees for the course but nevertheless said that, if her return to work had gone well, she would have abandoned the course of the end of the period of phased return. The tribunal does not find that to be credible, nor that what she was able to do in embarking on the course was wholly consistent with how she described her health at the time and her difficulties in the workplace. She had not told the respondent as she felt things she had said in the past had been turned against her. This was her private life. When put to her that, in her schedule of loss in the tribunal bundle, she was claiming the costs of the course as training costs for alternative work, she denied that doing the course was part of a plan to move to a different job. It was therapeutic and to develop herself.

[32]A further meeting took place on 19 September with Ms Glencross and Mr Gee to discuss her phased return from 24 September. Mr Gee was aware of the 24 August OH report, that the claimant had been ill for some time and said that he managed her as a disabled person and sought to put the reasonable adjustments in place which he could. The working pattern over the 8 weeks phased return was discussed. It was agreed that she would work mostly at the Northern General Hospital, but it might be beneficial to do some shifts towards the end of a phased return at the Royal Hallamshire Hospital to experience the full range of duties before making a decision on her longer term career path - the claimant would only gain experience of some specialist x-ray functions, for instance in neurology, if she worked at the Royal Hallamshire Hospital and some patients did attend the Northern General Hospital with neurological issues. As previously discussed, Debbie McGarty was to be her mentor and she was asked to report to her on her first day back.

[33]No stress risk assessment was carried out for working in the general x-ray team. Mr Gee said it would have been, if recommended by occupational health, but his understanding was that the previous recommendation had been for her role in the PACS team – the source of her stress. The claimant needed to spend time in the general radiography environment to see what the stressors were there. He agreed that driving to the Royal Hallamshire could involve increased stress but didn’t believe that the stress risk assessment would get into that sort of detail. He felt the claimant needed to familiarise herself with the work there and the fact that there was now one united team across the two hospitals. He felt her perception of the work of the teams was different to the reality. It was appropriate, he considered, to wait until the end of the phased return before any consideration of a further occupational health referral.

[34]Ms Glencross’ grievance outcome of 12 February 2018 had included a request that Mr Gee met with the claimant to formally clarify the band 6 competencies expected in general radiography and the expectation was that the claimant met the competencies included in the senior development guide. This, however, was whilst the claimant was working within the PACS team and covering general radiography on on-call basis only. Soon afterwards the claimant was absent for an extended period due to sickness and on her return to work, the tribunal agrees that, the previous issues in terms of working as a band 6 in PACS and how she was paid whilst working on-call no longer applied. Mr Gee knew that the claimant wished to attain band 6 in general radiography and that she needed to understand what was required of her to reach that level. However, while she was completing a phased return to work and needing to re-familiarise herself with band 5 competencies, Mr Gee’s view was that there was no need to go through the band 6 competencies in any depth and certainly no expectation on her ability to deliver at that level at that point. On a phased return working only up to 3 days per week, the key requirement for the claimant was to learn to be safe with the equipment in general radiography, some of which would be new to her. She had to complete what was a basic safety package and Mr Gee was concerned not to overload her. Individuals absent, for instance, on maternity leave had to renew their competencies and radiographers had to be signed off on relevant equipment annually. Since the claimant had been signed off in 2013, equipment and protocols in general radiography had both changed. Mr Gee said that he himself would be renewing a competency on a particular piece of equipment in the next couple of weeks. Furthermore, the claimant had not yet made a decision about a possible return to the PACS team and did not necessarily see her future working as a band 5 radiographer.

[35]Mr Gee’s evidence was that the claimant did not engage with what they were doing. She did not, the tribunal finds take the steps she could have to be signed off on band 5 competencies. A new starter might take around six months to be signed off on the basic competencies, whereas someone who had simply had a break could do so certainly within 3 weeks, sometimes much more quickly. When the claimant was ready, Mr Gee understood that, as an adjustment, it would not be unreasonable that the claimant might need more guidance and direction to gain the competencies to move to the next level, although seniors did need to be able to act autonomously. Once she had completed her band 5 competencies, he intended to address this. Mr Gee said that the claimant had mistakenly believed that if she was able to tick off the competencies in the senior development plan she would have a band 6 role – rather than simply being able to compete for one in the event of a vacancy. She kept raising this.

[36]The claimant raised no particular objection to working shifts at Royal Hallamshire Hospital. The claimant told the tribunal that she did not know how she would be feeling and she had been told she would be primarily working at the Northern General Hospital. On 4 October, she told Ms McGarty that the longer drive to the Royal Hallamshire was stressful.

[37]The claimant attended an attendance review meeting on 12 October to discuss her phased return. The claimant said that she was being supported by Ms McGarty and that she felt her phased return was progressing well. She reported that she was not having any trouble working with the new equipment or new staff and that she was enjoying being back at work. On some days, however, she still felt dizzy. The claimant said that she was happy with the plan and support in place. Her health was slowly improving, but she accepted that some symptoms might be ongoing. There was also discussion on that day with Ms Glencross the outcome of the claimant’s completion of the HSE Stress Tool.

[38]A further review of the progress of the phased return took place on 2 November. The claimant said that the phased return was going well but that her health was not improving and she was still getting symptoms of dizziness. She requested to remain working 3 days the remainder of her phased return and said that she could not see herself being well enough to sustain attendance over 5 days. She asked to continue just working 3 days in weeks 7 and 8 of her phased return to which Ms Glencross agreed. The claimant reported that she was on medication and to improve her health would like a permanent change to work 3 days per week but with the possibility of working longer days. She did not feel that she would be able to work more than 3 days due to her health and realised that on-call work would be subject to further discussion once her health had improved. Ms Glencross said that she would be able to make a temporary adjustment to reduce the claimant’s working hours until her longer term plan had been decided upon. She said that once the ABAW investigation report was available, should the claimant choose to take up a post as a rotational band 5 radiographer, she would be paid in line with the terms and conditions of this role.

[39]The claimant said that as a band 6 PACS radiographer she had felt bypassed in the past with regards to the development programme for radiographers in the general team. Ms Glencross said there was no reason why she could not access this should she take up a general radiographer post. The claimant’s union representative said that whilst the claimant was on a phased return no one would be pushing her towards additional training but that this would be something to consider when her health problems had resolved. Ms Glencross advised that all senior post would be advertised and recruited to in the normal way and completion of any additional training, including the senior development package, was no guarantee to succeeding at interview. The claimant said that she was being supported by Ms McGarty with weekly meetings to organise which department she was working in. The claimant did not refer to any difficulties she might have with self-taught training because, for instance, of difficulties in concentrating. Nor did she say that the training might help effect an improvement in her mental health.

[40]The claimant denied in cross examination that her wish to work only 3 days per week was related to the new commitment to attend at college 2 days each week. It was to do with her symptoms and nothing to do with the course. She said that there was no plan at the respondent and she was struggling at this time even to walk, because she was so dizzy. Such evidence is at odds with the accepted records of the review meetings.

[41]On 5 November the claimant emailed Ms Glencross suggesting taking only a 30 minute lunch break saying that: “I really need 27 hours through the 3 days I work as it gives me 2 days to continue my recuperation.” Ms Glencross responded that day saying that there was no service need for that working pattern and that it would not be beneficial to the claimant given her health problems to extend her working day and reduce her lunch break. The claimant described herself in cross examination as fighting to drop her hours, but needing still to pay her bills with the respondent saying that she would be paid at band 5.

[42]The claimant was taken to the record of mentoring kept privately by Ms McGarty. Unsurprisingly, the claimant was unable to remember specific dates but did not take issue with a record showing 7 specific meetings from 24 September to 6 December 2018. This included reference to specific individuals being allocated as workplace mentors for the claimant. On 24 September Ms McGarty issued the claimant with a competency booklet (band 5 competencies) to complete wherever she went in the department. On 4 October the claimant referred to continuing dizziness and was offered the opportunity of going to the Royal Hallamshire Hospital. The claimant said, as already referred to, that she didn’t want to do this as it would be a longer drive and more stressful for her. It was pointed out that if she was to take a rotational band 5 post then would be expected to work across sites. When put to Mr Gee that seeing the claimant on 7 out of 25 days was less than envisaged, he said that Ms McGarty did not need to meet with the claimant every day. He always envisaged that the meetings would be more regular to start with and then phased out as the claimant found her confidence. He was sure that Ms McGarty would have made it clear to the claimant that she should come and find her if she needed to. She would either be on the same site or contactable by telephone. Senior radiographers worked in all areas and band 6 radiographers were there to provide support.

[43]It is noted that the claimant worked 1 shift in October, 2 in November and 7 in December 2018 at the Royal Hallamshire Hospital. In the period from her return to work on 24 September until a subsequent period of ill-health absence after 25 April 2019 the claimant worked 52 shifts at the Northern General Hospital and 20 at the Royal Hallamshire. The claimant drove to work from her home in Rotherham. She described the Royal Hallamshire as the bigger hospital which the tribunal, on the evidence heard as to bed capacity, does not accept. She also described when working at the Royal Hallamshire having to go to other satellite sites. She said that the journey to the Royal Hallamshire involved a greater distance, busy roads and with her having to pay for parking when she was already paying to park at the Northern General Hospital. Mr Gee described the Royal Hallamshire as being a further 15 minute drive from the Northern General site but with the option of leaving your car at that site and taking a regular free shuttle bus between the site which would involve a journey of around 30 minutes.

[44]The claimant emailed Ms Glencross on 14 November saying that before she could make any decisions on her career she would be waiting for the outcome of the investigation. She went on that in the meantime she would continue working her current hours and stay on band 6. She reiterated: “I will not decide on my permanent place until this report is received.” It was suggested to the claimant that she knew that her continuance on band 6 pay would only last until the final report. She said that she hadn’t agreed to that.

[45]The final ABAW report was sent to the claimant by letter of 22 November 2018. The report set out the claimant’s complaints and those of Mr Nassim about her. It listed all those individuals who had been interviewed. There was found to have been a difference in styles between the claimant and Mr Nassim, but her complaints of bullying in particular were not upheld. She was told that she had the right of appeal. The claimant’s view was that the report was one-sided, that not all of the relevant documents had been considered, that Mr Nassim’s emails to her had been bullying, but that the respondent did not take bullying seriously. The claimant accepted that she told the investigator that the relationship of trust and confidence between herself and Mr Nassim had been destroyed.

[46]The report made a number of recommendations. It stated that it appeared that the two of them were unable to work together directly in the future due to the relationship breakdown. No grounds had been identified upon which to remove Mr Nassim from his position. A decision regarding which party to remove from the PACS team had been unnecessary whilst the claimant was absent due to sickness and, when she was able to return to work, it was more appropriate for an arrangement that she returned to general radiology rather than consider moving Mr Nassim out of the PACS team. It was felt that the impact on the service could be managed more effectively if he remained within PACS and the claimant was moved. The claimant had subsequently said that she could not return to PACS whilst Mr Nassim was still working there and therefore a permanent solution should be facilitated for the claimant within general radiology. It was recommended that they be offered mediation as they still may come into contact with each other. Other recommendations included providing Mr Nassim with support to identify any training needs. The report’s conclusion was of a relationship breakdown leading to an often fractious and argumentative series of interactions. However, this did not appear to be as a result of bullying. Mr Nassim had legitimate reasons to raise issues with the claimant around her performance and productivity, but this had been constantly challenged by her. It was acknowledged that his approach had not always been ideal, but it was not felt that he had singled out the claimant inappropriately or treated her differently to other colleagues in similar circumstances. There was no recommendation of formal disciplinary action against either party.

[47]The claimant’s position before the tribunal was that Mr Nassim had not been removed because he was so senior and that her own removal had been predetermined. She was adamant that she had been bullied.

[48]The claimant attended a further attendance review meeting on 29 November with her union representative. Ms Glencross reflected what had been said at that meeting in her letter of 29 November. The claimant’s phased return was to end on 2 December. The claimant said that her health had improved slightly and she was well enough to sustain attendance over 3 days. She said that she enjoyed working with different people and patient contact. She felt working in general x-ray was better for her health. Ms Glencross explained that there was a band 5 radiographer vacancy and the post would be held for the claimant. It would be possible for her to have a permanent part-time role in general x-ray but it might not be possible to work part-time should she wish to return to her PACS role. It was agreed that this would be confirmed with the PACS Manager. The claimant said that the investigation report had only been available since 23 November and she did not feel able to make a decision on her long-term plan that day. She was considering exercising her right of appeal. Ms Glencross agreed that a further meeting could be arranged after the claimant’s holiday (from 10 December) to decide her longer term plan. She explained that from 3 December 2018 a temporary arrangement would be in place to enable her to be paid appropriately for whatever work she undertook in the interim.

[49]The claimant asked to remain working as a general radiographer and to reduce her hours to 27 hours per week. Ms Glencross reaffirmed that she could not agree to that shift pattern. She explained that, given the claimant’s health concerns, it would not be beneficial to work longer days or with a reduced lunch break. The claimant’s options were to work 22.5 hours over 3 days, 30 hours over 4 days or 25.5 hours over 3 days with a one hour lunch break if, in the latter option, if she felt well enough to work an 8.5 hour day.

[50]The claimant told the tribunal that she never agreed to work at band 5 pay. She thought that there was no problem in keeping her on band 6 pay. A return to the PACS team was not an option, but her contract there was on band 6. She did not wish to mediate with Mr Nassim. She felt that previous conversations had not resolved matters and the situation was now too serious.

[51]The claimant emailed Ms Glencross on 30 November referring to the meeting the previous day and that they had agreed that she would be working 25.5 hours over 3 days on a band 6. She went on that they had not agreed whether she was staying in general radiography or in the PACS team as the ABAW report needed to be discussed before she made her decision. The claimant told the tribunal that the investigators considering her ABAW complaint decided to transfer her (the tribunal does not find that to be the final position reached), but there was no mention of a drop in wage and she had not agreed to change her pay band. She agreed that the respondent was only discussing a band 5 position, but said that she never agreed to that.

[52]Ms Glencross replied to the claimant’s email later that day saying that the options had all been as a band 5 rotational radiographer in the general radiography department. It was understood that this would be temporary until she had made a decision on her long-term plan. She went on that: “As your extended phased return to work has ended you will be paid at the correct rate for the job you do which means you will be paid on band 5.” The claimant quickly responded that she had not agreed to change her wage onto band 5 but only for the hours. She went on: “As I said before I am not changing my wage and stay on band 6 only the hours per week which is 25.5”. This resulted in a further email from Ms Glencross saying that the claimant did have an option of returning to her PACS role on band 6 while she made her decision. If she wished to be paid at band 6 she could return to that role on 3 December but if she wished to remain working parttime in the general team this would be on band 5. There was no option she said to offer her a senior radiographer role in the general team. The claimant responded that in that case she hadn’t got much of a financial option “like the one of going back to PACS”. She requested an occupational health referral.

[53]Ms Glencross responded stating that a 3 day week in the PACS team would be 22.5 hours but she had the option of returning full-time or reducing her hours to 30 hours in PACS in line with the PACS radiographer shift patterns. As regards an occupational health referral, she referred to the meeting where it had been agreed that there was nothing specifically to seek advice on and that the claimant should let her know what advice she was seeking from the referral now.

[54]The claimant’s reply raised the possibility of her working longer hours in the PACS team over 3 days to give her 27 working hours per week as 22.5 was too few and full-time too much. Ms Glencross reiterated that those hours could not be accommodated and if she wanted to work longer hours she had the option of a 4 or 5 day week during this temporary period. The claimant then said she thought that 25.5 hours could be accommodated in the PACS team and that if she needed to face Mr Nassim she needed a mediation with him. She also wanted to be put back on the x-ray on-call rota from February 2019. The claimant in cross examination said that on-call work at weekends was less busy.

[55]Ms Glencross respondent that there were options in PACS and general xray. The PACS options had not been discussed at length because the claimant expressed a preference to remain in general radiography. She also referred to the claimant saying that she did not want a mediation. She said it was not unusual for employees to return to roles in the same department prior to a mediation and that she would arrange for this to take place as soon as possible. She acknowledged that the claimant wished to return to on-call work but this would depend on her health. The claimant had to be able to meet the required competencies to be able to work safely. She was told that the on-call duties would be at the Royal Hallamshire Hospital. This communication was at 6:40pm on the Friday prior to the expected return to work of the claimant on the Monday. Ms Glencross chased the claimant a little later that evening asking for confirmation before Monday as to where she wanted to work.

[56]The claimant replied at 9:09pm on the Sunday saying that the ABAW report recommended she would need to be moved and that the transfer of an employee should be on the same pay and band. If she needed any training, it should be arranged. It was also recommended that she and Mr Nassim were unable to work directly together. She said that she had been asked to make a decision and had been offered a general x-ray position on band 5 rate. As she was not resigning from her work in the PACS team, only being transferred, the offer at band 5 she said was not applicable. She felt that a meeting was necessary to discuss the situation further but in the meantime she could work in general x-ray, but at the band 6 rate. The claimant emailed Ms Glencross on 3 December at 6:23am saying that she would go to the Northern General Hospital, as it was nearer for her to get there, if that was alright.

[57]The tribunal has seen a number of internal forms for the purpose of recording a change of pay details which were submitted electronically. These had been completed by Ms Glencross to reflect a change to band 5 pay. They were not ever signed by the claimant as was required. When put to Ms Bailey that the claimant had never agreed to be paid at band 5 she said that she might not have accepted the position but it was the post she had been offered. She had a choice of posts, either a band 6 post in PACS or a band 5 post in general radiography. The one she chose had the pay band amended in the records to reflect that choice.

[58]The claimant lodged an appeal against the ABAW report by email of 6 December to Paula Bailey. She said that the report didn’t contain vital evidence which she had provided. She felt that the evidence which had been missed out related back to pre-July 2017. She also wished to raise a grievance against Ms Glencross’s decision that she be paid at band 5 which she believed was against Agenda for Change.

[59]The claimant attended an attendance review meeting with Ms Glencross on 17 December again with her union representative. Ms Glencross’ letter summarising the meeting later that day noted that the claimant had said that she was happy working the amended shift pattern in general radiography and did not require any further modifications. The claimant said that she was unsure what modifications were being referred to. She said that she did not recall asking for any modifications at this meeting although she had already said that she did not want to go to the Royal Hallamshire Hospital. She had requested a re-referral to occupational health because she wanted advice and to know when it might be possible to return to full time hours. She was told that as her period of absence was longer than 4 months she would be issued with a stage 2 improvement letter from the date of her return to work.

[60]An amendment to contractual details form was completed by Ms Glencross which reflected a continuance as a band 5 rotational radiographer from 18 December 2018 to 28 February 2019. This reflected a recognition that the claimant had the right to appeal the report produced as part of the ABAW process and the respondent’s decision to keep the arrangement an interim one in case a different conclusion was reached on an appeal and the claimant then fell differently as to where she might want to work.

[61]The claimant emailed Ms McGarty and Ms Glencross on 28 December noting that she had been put on the Royal Hallamshire rota for the following week, but would prefer to go back to the Northern General Hospital. Ms McGarty responded saying, amongst other things, that all radiographers were cross site rotational and training needs also had to be taken into account when the rota was done. From January she said they were planning a full training competency book for the claimant which would include cross site working to ensure competency in all areas if she remained within the general team. It was put to the claimant in cross examination that working at the Northern General was a preference only and not an imperative due to the claimant’s health. The claimant said that she felt anxious and had a foggy brain because of anxiety. No adjustments, she said, were made.

[62]Mr Gee had spoken to the claimant about working at the Royal Hallamshire Hospital and understood early on that her issues involved her worrying about working in a different team and place. He felt that if she experienced it as it was now those anxieties would go. He agreed, when that did not appear to be the case, he had decided to support her while she was there, rather than excuse her from attendance. Her role, he explained, was such that she could not be excused from working at the Royal Hallamshire forever. Otherwise there would be an additional burden on other band 5 radiographers and the claimant would not get the full range of experiences herself, particularly neurosurgery. Further, there was no statement from occupational health that the claimant should not work there. He agreed that the respondent had not asked about limiting her time at Royal Hallamshire as a reasonable adjustment, but said that the claimant had never asked that she not be sent there.

[63]The claimant asked on 6 January about being put back on the on-call rota. Mr Gee responded on 8 January saying that there were two main reasons why she had not been. The prime one was to protect her health and it would not be appropriate to allocate shifts until there was confirmation from occupational health that working longer additional shifts was appropriate. The other reason was that she had not yet completed her band 5 competency training to be signed off for on-call work. He said that it would not be responsible to her, her colleagues or patients to allow her to work on call without being signed off on all the necessary areas and that this applied to all radiographers. He said that as far as he was aware, a decision had not been made as to which team the claimant would be working in long term and as such it had not been possible to finalise her training for on-call. It was reaffirmed at if she re-joined general radiography permanently she would be fully rotational.

[64]The claimant’s position was that she had completed her basic band 5 training in 2013 and did not need to satisfy the competencies again. She said that she had not been told that there was a need to do so, given the passage of time or the use of new types of equipment since she had last been passed as competent. The tribunal finds that the claimant had been made aware of the respondent’s position.

[65]The claimant said that in December 2018 she was informed by Ms McGarty that if she made a mistake whilst at work she would be taken to court and by Mrs Bailey that she would have problems wherever she moved to within the respondent and should be grateful she had a job. The alleged comment attributed to Mrs Bailey was not made certainly at that time, as Mrs Bailey did not meet with the claimant until March 2019. When put to the claimant that Ms McGarty had been referring to the risk of having to attend a coroner’s court if a mistake was made, in the context of explaining the need to be up-to-date with the competencies, the claimant said that she did not know the context. The claimant accepted that she did not complain at this time about any comment made to her.

[66]The claimant wrote to Mrs Bailey on 10 January 2019 giving more detailed grounds in respect of her appeal against the final report produced as part of the ABAW procedure and her grievance in relation to pay banding. The claimant reiterated the need to look at events prior to mid-2017. As regards the banding, she referred to management trying to change her contract unilaterally when the matter had not been discussed and that it looked like she had been dismissed and re-engaged for the new post. By this point in time, the claimant was no longer being supported by her trade union on these issues (in contrast to her health/sickness management), but had instructed solicitors to advise her.

[67]The claimant was seen further by occupational health on 14 January 2019. The claimant told them that she was no longer feeling dizzy. However, anxieties whilst improving had been exacerbated by having to be “based” at the Royal Hallamshire and around her banding at a 5 rather than a 6. Once there was a conclusion to the appeal it was hoped that the anxieties would improve. It was difficult to estimate when the claimant would return to full fitness, but it was anticipated that a conclusion to her appeal was likely to help with any anxieties. In cross examination, the claimant said that her anxiety rose when she had to go to the Royal Hallamshire albeit she could cope up to a level. She said that there were issues with travel and car parking and she didn’t want to go back there.

[68]On 24 January the claimant wrote to Mrs Bailey requesting notes from the ABAW process. This correspondence had been drafted by her solicitors. Ms Bailey responded on 28 January stating that the respondent’s position was in line with policy and witnesses involved in the investigation had been appropriately informed that their information was confidential and would not be shared unless the investigation resulted in a disciplinary process.

[69]After a period of 8 days absence, the claimant met with Ms Glencross for an attendance review on 7 March. The claimant said that her symptoms of anxiety and stress continued, but her health was continuing to improve slowly. It was agreed that a referral to occupational health at this time was not beneficial. It was stated in the letter summarising the meeting that no further adjustment or support was identified and it was acknowledged that it would be beneficial for the claimant to have an outcome of her appeal arranged for 11 March. In cross examination the claimant did not dispute what was in the letter, but said that the respondent had not identified anything by way of an adjustment.

[70]The claimant duly attended her appeal hearing before Mrs Bailey on 11 March. The claimant’s view was that the investigatory notes ought to have been shared because, had the respondent looked at the matter properly then it would have been progressed to a disciplinary process against Mr Nassim. The claimant agreed that she said that she could not go back to the PACS team and would not want to work with Mr Nassim. The notes of the meeting recorded the claimant as having agreed with the recommendations in the final report, although in cross examination the claimant said that she felt she was being bombarded with statements. The claimant agreed with Mrs Bailey at the meeting that she was asking for instances prior to July 2017 to be looked at.

[71]When discussing the issue of pay bands the claimant confirmed that she was still wanting a 30 hour post but spread over only 3 days. She also wanted some on-call shifts albeit not night shifts. She denied, when put to in cross examination, that she was using her illness as an excuse to structure her working week to earn the most she could, whilst also been able to attend her college course. When asked why she did not tell Mrs Bailey about this course, she said that she did not have to discuss her private life. Mrs Bailey said that a band 6 role in PACS was still on offer with support and mediation.

[72]The claimant referred to lack of training at this meeting - that it was unfair that she had her band dropped down to band 5 without any training. When asked what the claimant was seeking from the respondent, she said that training should be put in place and she should not suffer the wage drop. She went on that she had reduced her working days as she couldn’t work 5 days per week because of the pressure and her being on medication. Mrs Bailey told the tribunal that she didn’t see the claimant as making a connection between training and her health and the tribunal does not consider that any clear connection was made by the claimant.

[73]Mrs Bailey was not familiar with the types of training undertaken within the radiography department. She therefore adjourned the meeting and reconvened on 21 March with Mr Gee present so that the issue of training could be fully addressed. The claimant had referred to the training she wanted to progress to a band 6 general radiographer and that she would require support to achieve this. However, in the adjournment when she spoke to Mr Gee, it became clear to Mrs Bailey that there was no specific training which would mean that someone would progress to that band, but rather a package of personal development (the senior development programme) to allow someone to better compete in an interview process for any available vacancies. The attainment of a band 6 position was not automatic. The claimant had only briefly been in general radiography and because of the amount of time she had had away from the department she had to recertify her band 5 competencies first. The claimant’s focus had to be on ensuring that she was safe to do the basics and the band 5 competencies. When she had done so they could then be a focus on the development programme but in the meantime if the claimant wanted to look at the band 6 competencies she would need ultimately to gain, then she could do so in your own time. When put to her that the senior development programme could have been adjusted to help the claimant do it in parallel to the band 5 competencies, Mrs Bailey disagreed and said that it was unreasonable to throw someone into the department who been absent for a period, was not yet safe to work as a band 5 and overload them then with seeking to develop them into a higher role. There was nothing to prevent the claimant progressing with the development programme if she could show she was competent in the band 5 tasks. Mrs Bailey understood that the claimant was seeking adjustments to the senior development programme, albeit the claimant did not stipulate anything specific, and agreed that it would be appropriate to make adjustments, but at an appropriate time. The nature of a band 6 radiographer, however, involved the need to work autonomously and direct others. The claimant was only recently back in the department but she could potentially have quickly signed herself off in terms of band 5 competencies. Her understanding from Mr Gee was that as at March 2019, the claimant had not started to engage fully in the process of being signed off in the band 5 competencies.

[74]Mrs Bailey considered that it was not practicable for a band 6 radiographer to be assigned to the claimant each shift to supervise her every move. They could, however, arrange for someone to sit down with her to help the claimant identify opportunities for her to gain awareness and experience. Mr Gee was going to look into that, but no one had the chance due then to the claimant’s sickness absence. The competencies could not in the main simply be taught – an individual had to gain experience by doing. The claimant might be taught radiation awareness, but needed to teach a session herself as well. Mrs Bailey thought that the claimant continued to be mistaken that if she ticked all the boxes in the senior development programme, that would make her a band 6. It would simply make her competitive at an interview. This programme was just a guide to make oneself a good candidate. Mrs Bailey said that the claimant said that no one had ever explained that to her before. If the claimant did not understand what was required, she ought to be supported and it was understood that the self-directed element would be more difficult for her. It was reasonable to ensure that there was someone who could talk the claimant through the process, but she would still need to complete it for herself.

[75]Mrs Bailey wrote to the claimant on 27 March with the outcome of the appeal. Within this she summarised the claimant’s grievance, management response and the panel’s findings. She concluded that the department had found the claimant another role at her own request and that she was aware of the banding of the role prior to the move. By turning up and working in the general radiography department, the claimant had made her choice as to the role she wished to carry out and the role she chose was at band 5. She knew that she could have gone back to her band 6 PACS role. Had she been redeployed on health grounds as part of the managing attendance process this would have led to consideration of posts at lower bands, but no entitlement to pay protection. Mrs Bailey considered that Ms Glencross could have reasonably put the claimant on formal redeployment under the attendance management process but this had a three-month time limit and Ms Glencross chose to adopt an informal process as she considered that that such time limit would add to the claimant’s stress. She had been placed in a vacant role as a band 5 radiographer following discussion with her and in good faith. The change had been actioned in response to the claimant’s request but if she wished to return to her band 6 role in PACS and was willing to attend mediation with Mr Nassim arrangements for this could be made.

[76]In that PACS role the claimant had enjoyed a full time equivalent salary of £29,188. When appointed to the band 5 position she was correctly appointed on a pay point with a full-time equivalent salary of £26,963. Ms Bailey however was prepared, given the circumstances of her move, to request that the claimant be placed on the higher pay point with a full-time equivalent salary of £28,050 with effect from 18 December 2018. Furthermore, she would request that she retain the same incremental date so that she moved to the top of the band five salary scale in April 2019, a full-time equivalent salary of £29,608. This adjustment was said to reduce the financial impact of the move, a matter which the claimant had said she was particularly concerned about. It was put to the claimant that this involved her being paid more than she would have been in the band 6 role. The claimant said that she would however stay then at the top of band 5 and not get future increments as a band 6 employee.

[77]Mrs Bailey’s position was that the claimant couldn’t be granted a band 6 role as clinically this was a more senior role and she needed to meet the competencies. It wasn’t safe to have someone performing at a higher level of clinical competency than they were able to deliver. It was a concern, including amongst the trade unions, that levels within the profession had to be upheld, otherwise professional status would be compromised. She rejected that provisions in Agenda for Change regarding pay protection were relevant as the claimant was not being redeployed for service or operational reasons. The step she had taken already mitigated the reduction in pay in any event and pay protection under Agenda for Change would have been time-limited to the point when there was no longer any financial detriment - pay was only preserved at the level of pay at the time of a move. She had looked therefore to see how the financial losses could be mitigated understanding from the grievance about annual leave that pay was an issue for the claimant. She therefore chose to revisit what Ms Glencross had done and went beyond that so that within a month of the meeting the claimant’s pay rate was higher than when she left the band 6 role in PACS.

[78]Mrs Bailey did not believe that any training had been withheld from the claimant and, when asked if she had approached anyone recently about undertaking the training the claimant said she had not as she had not yet decided where she would be working in the future. She was now aware of the information she needed should she wish to develop her career within general radiology. The claimant was given the right of appeal.

[79]Mrs Bailey wrote to the claimant separately on 27 March 2019 with the outcome of the appeal against the ABAW process. It was noted that the claimant had now been told that Mr Nassim was willing to explore a mediation. When put to her that she had not explored all of the claimant’s points of appeal, Ms Bailey referred to the notes of the hearing and to discussions which had taken place around the specific points of appeal. Mrs Bailey accepted that when Mr Braithwaite wrote to the claimant on 23 February 2018 confirming receipt of her complaint, he had said that relevant statements or notes of investigation meetings would be shared with her during the investigation in order to assist in responding to the allegations against her. Mrs Bailey’s conclusion was however that information gathered during the process remained confidential. She suspected that Mr Braithwaite perhaps did not appreciate the difference between a disciplinary process and one under the ABAW policy. She appreciated that his letter had been copied to human resources, but was clear that the ABAW policy was usually for behaviour which was not of a disciplinary nature so that the outcome at the end might be to find a workable solution. The policy made specific reference to confidentiality whereas the disciplinary policy was clear about sharing information. She could understand however that the inconsistency had caused the claimant to believe that information was deliberately being withheld. The panel supported the findings of the investigation and subsequent recommendations. It proposed to take no further action. There was no further right of appeal it was stated under that policy.

[80]The claimant attended a meeting with Mrs Bailey on 28 March to obtain feedback on the outcome of the ABAW appeal. The notes of that meeting confirmed that the claimant wanted to move out of the PACS team, work 27 hours over 3 days with a share of on-call work based at the Northern General Hospital and maintained on a band 6 whilst undergoing training. The reduction in hours was due to her health. The claimant said she had not turned down mediation. When Mrs Bailey asked if she wanted her to arrange it she said she did not as she had spoken to Mr Nassim twice already.

[81]The claimant in cross examination continued to maintain that she had been told at this meeting that she should be glad to have a job at all. When asked if that statement had been made by both Mrs Bailey and Ms Hall of HR who was also present she said that it had been made by one of them, but she couldn’t remember by whom. The tribunal does not consider the claimant’s evidence on this point to be credible and prefers Mrs Bailey’s evidence that the statement was not made by anyone at this or any other meeting. Mrs Bailey was clear that there had been no conversation when Ms Hall was in the room. At the end of the meeting she left and Mrs Bailey did discuss the outcomes and impact on the claimant with the claimant. She was clear that she would never have made the comment attributed to her by claimant. The tribunal does not believe that she would have and the claimant’s evidence is uncertain.

[82]On 29 March 2019 at 16:36 Mr Gee sent an email to all general radiographers about an advertisement for band 6 vacancies which had just gone live on the respondent’s website. By the time he sent that email the claimant had left slightly early for the day to commence a period of annual leave. It is likely on balance therefore that she did not see this email until she returned from holiday around 14 April. Mr Gee’s evidence was that he had been aware for a little time that this competition was in the offing but did not know when it would go live and sent the email shortly after discovering this for himself. However, his understanding from staff in the department, was that the claimant had been aware of the advert during the morning and had been discussing the matter with other radiographers. The claimant denies being so aware. Mr Gee accepted in cross examination that knowing the claimant’s desire to become a band 6 general radiographer he ought to have let her know in advance that this opportunity would be arising. He said that whilst the closing date was 14 April, had the claimant applied late, in the circumstances, a late application would have been allowed. The claimant did not ask Mr Gee for an extension and, before the tribunal, queried why she would apply given that she had not agreed to be paid at band 5 and was waiting for training at band 6.

[83]It was clarified that the training to which the claimant was referring was the senior development programme, information in respect of which had first been provided on 8 November 2017. The claimant repeated that Ms Whitton had then told her she would struggle to get support. The claimant said that she would need the agreement of others to spend time with her and allow her to observe what they were doing. This obviously related to a period some 18 months prior. The claimant at that point was only working on-call in general radiography around 2 days each month. When asked in evidence if it was the case that she couldn’t undertake self-taught learning because of her disability she responded: “that as well”. She said that because of her illness she struggled to complete certain tasks and process information. She denied, when put to her, that a lack of effort on her own part to fulfil the programme was because she did not think it was fair that she would have to undergo a competitive interview process to become a band 6 in general radiography. When put to the claimant that still in March 2019, while she had been issued with the band 5 competency book, she had yet to work through it, she firstly disagreed and then said that she couldn’t remember.

[84]On 16 April the claimant emailed Mrs Bailey saying that she could work at the Royal Hallamshire to cover sickness but would be working under protest in terms of training at that site and if she was allocated to that site more often. She went on that she had not accepted the offer of being paid at band 5 level.

[85]The claimant then lodged her appeal against the pay banding grievance outcome on 29 April. She referred to the self-taught training tool as discriminatory to her as a disabled person. The appeal took place on 13 June 2019 before Mr Michael Harper, Chief Operating Officer. He dismissed her appeal. As regards training, he did not believe that this had been deliberately withheld. The focus of a phased return was to support the employee returning to work on undertaking the role for which they were employed. It would therefore not be appropriate to raise development to a more senior role until that had been achieved. The claimant was aware of the senior development programme and could access this at an appropriate point should she wish to do so following a successful return to work. He was not averse to discussions taking place about potential reasonable adjustments to support the claimant in this training. However, again, the claimant had not yet started the band 5 competency book and had been advised to complete this before commencing the band 6 development. This is an accurate summary. When put to the claimant that she had not tried to do anything under the development programme after her return to work in September 2018 she could only respond that she couldn’t remember and that she was not permanently in general x-ray. When put to her that she had not said that she wanted to undertake the competencies and was looking for help as she struggled with a disability, she said that was not said because she was requesting training as a band 6 (not on band 5 competencies). She said however that she was not suggesting that Ms Glencross had said that the respondent would train her in order that she could get the skills necessary so that she could operate as a band 6 automatically.

[86]The tribunal has been taken to notes of the grievance appeal hearing. At one point, Mrs Bailey, presenting the rationale for her decision, explained that all band 5 and 6 posts were now fully rotational. When Mr Harper asked the claimant to comment she accepted that if she got a band 6 post this would have such a requirement. She said that she felt it was unfair that she had been paid less. She went on that at the Northern General Hospital not every band 6 employee rotated everywhere. She was said that she was happy to do it with pay. Mr Harper interjected to check that he was hearing right, i.e. that doing a band 6 post on a rotational basis would be acceptable but not a band 5 post. Ms Bailey’s evidence confirmed the accuracy of this note. The claimant in evidence said that she couldn’t remember if she had said that.

[87]The claimant was again absent from work due to sickness from 10 May 2019. She attended a stage 1 attendance review meeting on 20 June with Mr Gee. The claimant agreed that at this point her position was that she was still awaiting the outcome of the grievance appeal and did not know when she would be back at work. She was under the care of her GP and a psychologist. She was warned that if she was absent for a period of 4 months then she would be invited to a stage 2 meeting.

[88]Mr Harper wrote to the claimant on 1 July rejecting her grievance appeal. He noted that whilst she did not feel it was fair to be working across site in her current band 5 role, it was believed that it was reasonable that she fulfilled the requirements of the role as with other band 5 radiographers within the general department. If occupational health advice became available that indicated she was not able to fulfil a cross site role, adjustments needed to be considered. When put to the claimant that there had been no such recommendation by occupational health, the claimant said that they had not been asked that question.

[89]The claimant attended an informal keeping in touch meeting on 25 July with Mr Gee. The claimant said that she was still not well enough to return and didn’t have a date for a possible return to work. It was noted that the claimant had not felt the need to contact the respondent’s own employee support service. The claimant was aware that she had dropped to half pay on 10 June and was due to go to zero pay from 26 November.

[90]The claimant wrote to Ms Bailey on 29 July 2018 with a statement in support of a separate grievance she had raised regarding annual leave entitlement. This included a statement that the claimant was a disabled person and that reasonable adjustments should be considered in relation to the attendance management policy and annual leave policy. A grievance meeting was held on 8 August and Ms Bailey produced an outcome dated 14 August. Ms Bailey’s accepted evidence was that the only point the claimant wished to pursue was her annual leave and, once the financial position had been explained to the claimant, she was content with the position reached and retracted her grievance. The outcome letter reflected that. It recorded an agreement that the matter was now closed. Ms Bailey said that she accepted that the claimant had a long-term condition and that said that she was being managed with consideration given to any reasonable adjustments.

[91]The claimant saw her psychologist on 13 August 2019. She explained to him that she felt the same and that work was still a significant trigger for her mood. She was recorded as discussing her thoughts about working for an agency. It was recorded that it was mutually agreed as homework for the claimant that she contact an agency she had previously worked for as she needed to put plans in place. The medical notes reflect a goal of seeking new employment. On balance, the tribunal concludes that it was the claimant who raised the question of her contacting employment agencies, not her psychologist (such an avenue would not have occurred to him unprompted), albeit he agreed that she should make such contact as a way of enhancing her confidence.

[92]A further telephone keeping in touch meeting occurred on 30 August. The claimant said that she still could not see a time when she would be fit to return to work in the near future. Delays were noted in the claimant seeing occupational health. It was recorded (accurately) that the claimant could not think of any support which could be offered, but that this would be discussed in more detail after occupational health advice had been received.

[93]The claimant was then seen by Dr Giri of occupational health on 4 September who produced a report the following day. The claimant agreed in cross examination that she had made very little progress over the last 4 months, as stated by Dr Giri. She said that she had got worse because of how she had been treated and she was still dealing with grievances. She agreed that by September the grievance processes had concluded, but that, with her condition, she did not get any better. The claimant told him about the employment grievances she had had over the preceding period. She said to him that the respondent had not looked properly at these, she had had no appraisals, inadequate training and no support. If the respondent looked at the evidence every grievance resolution would be different, she told the tribunal. She denied, however, that she would have remained absent due to sickness until that occurred.

[94]Otherwise, Dr Giri stated in his report a belief that the claimant did not have any major underlying health problem which would have an impact on her ability to attend work. The primary reason for her inability to sustain her attendance had been ongoing suffering which she attributed to multiple work issues. The prognosis remained uncertain. His opinion was that he did not “suspect” that the claimant would be classed as a disabled person within the Equality Act 2010. He was unable to provide any return to work date or predict any timescale for a recovery. In terms of adjustments which might assist, these were said to be addressing the issues i.e. grievances (which he listed) “managerially” in order to reach an amicable solution. He stated: “A successful resolution of these issues should provide her with an emotional boost and support her to resume her employment sooner rather than later.”

[95]Mr Gee said that he was surprised by the phrasing used by Dr Giri in explaining his view on the claimant’s disability status. He said, however, that he had no reason to doubt what he was saying.

[96]The claimant attended a further stage 2 attendance review meeting with Mr Gee on 9 October. Dr Giri’s report was discussed, including his opinion regarding the claimant’s disability status. The claimant said that she was still seeing her psychologist and they also recommended that her work issues needed to be addressed. When Mr Gee asked what could be done to help resolve the stressors at work, she said that everything went back to 2015 when working in the PACS team and this had damaged her health. She couldn’t think of anything that would help to resolve this and allow her to come back to work. She felt that the respondent hadn’t looked at all the evidence she had supplied and the closing of her case was inappropriate. The list of issues/grievances set out by Dr Giri was read out and the claimant confirmed that, to support her back to work, all the issues need to be revisited again. It was noted that the claimant was not being asked to return to the PACS role and was asked if there was anything around returning to general radiography that concerned her. She said that she would just need some support as she had been away for a long time. Mr Gee told her that support would be provided. After an adjournment Mr Gee told the claimant that there seemed to be no options left open to support a return to work, so that it was appropriate to refer her case to a panel for consideration of her continued employment as there was no indication of a return to work. The claimant did not dispute the contents of the letter confirming what had been said at the meeting (or the meeting notes), saying to the tribunal that she had run out of ideas.

[97]The tribunal accepts Mr Gee’s evidence that the general radiography department was 2.5 band 5 radiographers down against an intended complement of 41.9 and where in fact there was authority to over recruit (by 3 FTEs) over the winter period. There was therefore a gap of 5.5 FTEs against what was required for that time of year. Radiographers could not be sourced from any agency or bank staffing arrangement. As a result, all patients would still be seen, but with longer waiting times and more strain on the radiographers at work. It had been shown that increased workloads correlated to an increased number of mistakes. The Northern General Hospital was also in terms of number of beds certainly bigger than the Royal Hallamshire, 1100 as against 800. The Royal Hallamshire site was also not unknown to the claimant as, when in her PACS role, she did sometimes work at that site. Whilst this claimant had discussed her preference of not going to the Royal Hallamshire, Mr Gee said that she had not raised with him concerns about getting there. Mr Gee said that it was not unusual for people not to want to work at different sites. A regular free shuttle bus was available for staff to use to travel between the sites. This involved a ride of around 20 – 25 minutes rather than an approximate 15 minute drive if using one’s own car.

[98]After the final stage 2 meeting, Mr Gee received an email from the claimant dated 31 October 2019. He read this, but, as the respondent was already progressing the matter to a stage 3 meeting, took HR advice and was told this would be considered at that next stage. There was nothing within it which he felt changed his decision to progress the matter. Within the email, the claimant expressed her disagreement with Dr Giri’s view of there being no underlying health condition, referring to her health problems beginning in 2016. Mr Gee believed that Dr Giri would have had access to the claimant’s medical records, but there was nothing in his report which clarified this point one way or the other. He did not believe there was now a need for a rereferral to occupational health. He stated that occupational health and an employee might well disagree. The report had been fully discussed with the claimant at the earlier stage 2 meeting. Mr Gee agreed that he did not bring the email to Mr Scott’s attention at the stage 3 meeting.

[99]The claimant in this communication also stated: “the only possible way I can see, to boost my confidence and perhaps gain the management’s trust back, is to put my wage back onto band 6 payment where I was before and deliver the training at the band 6 level which was promised all along but not delivered.” Mr Gee’s view, when he read this, was that the band 6 issue had been closed after a grievance and appeal process. He appreciated the claimant said she needed the training. However, he did not think that these issues would be sufficient in isolation to resolve the issues and get the claimant back to work. When asked if he had not considered whether it was appropriate to invite the claimant back to work and to put in place an adjusted development programme, he said that this was not a major issue and that at the stage 2 meeting he asked repeatedly what the claimant needed. She had said that there were no matters of concern in the role she was doing. At the stage 2 meeting both her and Dr Giri were of the view that there was no prospect of a return to work and the claimant’s symptoms he felt were too severe for this small adjustment to make a difference. He said that he had had several discussions with the human resources business partner about any possibilities in terms of the claimant seeking to reopen her previous complaints and said he was assured that the respondent’s processes had been fully gone through. He was told that any additional process outside the respondent’s policies was not possible.

[100]A stage 3 attendance management meeting then took place on 18 December 2019 chaired by Mr Ian Scott. In advance, he received a pack of documents including the claimant’s email of 31 October. He read and discussed this with human resources before the hearing. He understood that the claimant disagreed with Dr Giri’s assessment of her as not being disabled, but decided to pick this up at the meeting itself. It did not appear to him that any new issues were being raised. He explained that at this stage they were looking at consideration of the claimant’s continued employment. Mr Gee then presented a management case explaining previous discussions and Dr Giri’s report. Mr Scott recognised he had an option of going back to Dr Giri, but after considering this with HR and revisiting the referral itself (which mentioned previous OH referrals), he decided not to. Dr Giri was the most recent clinician to see the claimant and his opinion was that the Equality Act was unlikely to apply. In any event, Mr Scott said that this did not make a difference to his considerations in that he looked at whether adjustments had been put in place and whether any more could be made. The claimant had said in an email to HR that she had raised all her issues with Dr Giri. He did not view it as uncommon for an employee to disagree with an OH report, but did not think that the claimant was providing any new information. He accepted that it was not clear whether Dr Giri had considered the claimant’s medical records. The claimant had an opportunity to put questions to Mr Gee. She then presented her own case. As part of this she referred to having been subjected to bullying and harassment since February 2017 which she had raised back in July 2017.

[101]In terms of her health the claimant said that her illness had become so bad that she could do anything and was struggling with normal activities. She felt that she had to go everywhere with her husband as she couldn’t walk properly and felt so dizzy. She told the tribunal that the health and got worse because the respondent hadn’t provided support for her mental health. When asked at the meeting what she thought the radiography department could do, the claimant said that she couldn’t answer that. When pressed, she said that they could look at the issues properly – “Everything in the past. They have overlooked certain things, if they looked at it properly in depth. The issue should have been resolved but if they were my health would improve. I want to go back to work but I can’t write and walk properly.” Mr Scott asked then asked whether the only way was for the respondent to look at the grievances. The claimant responded that she was so ill “it doesn’t matter now”, as much as she wanted to go back to work she couldn’t go back to work.

[102]There was some discussion about the amount of time the claimant worked at the Royal Hallamshire Hospital in her period in general radiography. Mr Gee referred to there having been a few days (whereas the claimant said that she couldn’t remember). That was not an accurate estimate and Mr Gee agreed that she had certainly done more than a few days there.

[103]At one point the claimant had a disagreement with her union representative who was present at the hearing and who wished to make the point that the appeals the claimant had raised in respect of her grievances were against union advice and the representative at the time felt that the policies had been followed correctly. That is why the claimant had not been represented those stages. The claimant referred to the respondent not wishing to disclose information gathered in the ABAW process. She also said that she was told at the last meeting by Louise Hall that she should be glad that she still had a job. Ms Bailey was then alleged to have said in private that if the claimant raised concern she would have problems.

[104]Mr Scott agreed that there was no reference to the 31 October 2019 email at the hearing. He said that he invited the claimant and her union representative (who was also an experienced radiographer) to present all they wanted, but there was no specific mention of this email. He considered that the points the claimant made regarding band 6 pay and training had been picked up already through an exhaustive process and it was not appropriate to allow the claimant to reopen that. When put to him that he had not explored whether providing training would help with the claimant’s attendance, he said that he asked the claimant if there was anything the respondent could do. At the meeting she said she had lost trust and did not know if and when she could come back to work. There were no new suggestions from the claimant beyond what had been considered in the grievance processes already. Mr Gee had said that training was being supported and it was not reasonable to appoint someone to band 6 pay when they were doing a band 5 role. Nor would that be reasonable to other colleagues. Mer Scott agreed. Dr Giri had referred to managerial issues which needed to be dealt with but the claimant had already been through a process which had been exhausted. When put to him that he ought to have offered a phased return to work with training, Mr Scott said that he couldn’t see any time the claimant could come back to work. She had lost trust and training was only one of a list of issues. He believed that she had been supported with development opportunities given to the claimant for training before she was absent due to sickness. The claimant had previously been provided with a senior radiographer to assist her. There was a lack of clarity from the claimant and Mr Gee about the number of times the claimant had been asked to work at the Royal Hallamshire Hospital but now knowing the exact number of shifts, this wouldn’t have made any difference to the panel’s decision. Occupational health was not saying that she couldn’t work there, but rather that this caused her anxiety. Occupational health also however had inaccurately referred to her as being based there. The respondent would have considered a phased return had there been an indication that the claimant was able to return to work. Given that there was no such indication, it was not appropriate to have a conversation around a phased return. The claimant was clear that the respondent needed to reopen and look at the previous grievances properly. He understood the claimant to be saying that the issues need to be re-looked at in their entirety. He accepted the claimant had not been explicit but said that through discussions at the hearing it was clear that the claimant thought they needed to go back to these matters as the wrong decision had been reached.

[105]Mr Scott wrote to the claimant on 24 December 2019. He referred to Dr Giri stating that there were several work-related grievances that the claimant felt needed to be addressed in order for her to return to work. He set out then the list of grievances and what action had been taken. He summarised discussions at the meeting. It was ascertained that all of the claimant’s points had been put forward through the appropriate policy and been responded to, albeit not to the claimant’s satisfaction. Whilst Mr Scott acknowledged that her health had been impacted by these issues, he stated that it was not within his remit to explore these issues again and he was satisfied that the processes had been adequately followed. Whilst the claimant had not been signed off as unfit for 9 months continuous absence at this point, she had been clear that her health was getting worse and not better and she could not envisage a return to work in any capacity for the foreseeable future. There was no indication that delaying the decision would allow the claimant time for an improvement which would allow a return to work. There was no outstanding recommendation from occupational health or anything else that she felt could be considered to support her in returning to work. He was therefore assured that she was unable to meet the respondent’s expectations in respect of attendance and he decided to terminate her employment on the grounds of capability due to ill-health with immediate effect. Mr Scott considered the effect on the service of the claimant’s absence as explained by Mr Gee. He had read the formal written referral to a stage 3 hearing put together by Mr Gee which referred to the team being under pressure with a very high patient throughput and with long-term absences causing increased patient waiting times and additional pressure on other members of the team. He said that he was mindful of the claimant’s length of service and did take this into account. Dismissal occurred always only if there was no other option and he did not enjoy this part of his job. He also considered the amount of sick leave the claimant had had in her service from 2012. He did not think that the claimant’s condition being work-related was a factor which ought to have caused him to defer any decision on the termination of employment. The claimant was given the right to appeal against his decision.

[106]The claimant duly raised an appeal. The claimant agreed that the main basis of this appeal was that her sickness absence had been caused by the respondent. The claimant accepted in evidence that she did not know what reasonable adjustment might have assisted her in circumstances of there being no foreseeable return to work. She maintained that there was no plan coming from the respondent.

[107]An appeal hearing took place on 5 February 2020 chaired by Ms Victoria Leckie. The claimant produced her own statement of case. Within this she reiterated that she did think the investigation of previous grievances should be revisited due to the fact that there were discrepancies. She disagreed in evidence, however, that this was the only suggestion she made which could have assisted a return to work. She said that the respondent had not given her much time to recover and she had been referred to a stage 3 dismissal meeting after only 5 months absence. The claimant agreed that her health at the date of the appeal meeting was still very bad.

[108]Ms Leckie understood that the claimant disagreed with the report of Dr Giri. She was aware of the claimant’s 31 October 2019 email sent after the stage 2 outcome. She did not discuss it with the claimant and there was no reference to it at the hearing. Ms Leckie was clear, however, that she explored with the claimant at the hearing the issue of whether any adjustments would assist a return to work. She did not consider a re-referral to be necessary. The claimant’s contention that Dr Giri’s report did not reflect what had been discussed at the OH appointment had not been raised before this appeal stage. At the hearing, when asked what else could be done to support her, the claimant said that it was not her place, but for the respondent to “come out with” a reasonable adjustment. The claimant said that she had explained to Mr Gee that she preferred to work at one site. She said that she had raised a lack of familiarity with the Royal Hallamshire and the stress of the increased driving to get there. Ms Leckie agreed before the tribunal that she did not know how often the claimant had worked there. She, however, was clear that working less at the Royal Hallamshire was not something which would enable the claimant to return to work. She considered that there was nothing to suggest that if the claimant’s grievance issues were looked at again, that they would then have been resolved (to the claimant’s satisfaction). She was aware that Dr Giri had said that the best solution was to address the concerns managerially, but she said that the processes had been exhausted.

[109]The claimant’s appeal was rejected. The claimant however raised a further complaint criticising the appeal outcome. She reiterated that her health would probably improve if management reopened the grievances, dealt with them properly and actioned the bullying and harassment issues. Then, she said, she would know that the respondent was really trying to support her. Applicable law

[110]Section 6(1) of the Equality Act (“EqA”) 2010 provides that: “A person (P) has a disability if – P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”.

[111]The burden lies on the Claimant (Kapadia v London Borough of Lambeth

[2000] IRLR 699

, CA, at paragraph 21) to satisfy the Tribunal that, on the balance of probabilities, she was disabled at the relevant time.

[112]The definition at section 6(1) EqA 2010 poses four essential questions: i. Did the Claimant have a mental impairment? ii. Did the impairment have an adverse effect on her ability to carry out normal day-to-day activities? iii. Was that effect substantial? iv. Was that effect long-term?

[113]The Tribunal should not proceed by rigid consecutive stages. In cases where there is a dispute about the existence of an impairment, it makes sense to start by making findings about whether the Claimant’s ability to carry out normal day-to-day activities is adversely affected (on a long-term basis) and to consider the question of impairment in the light of those findings (J v DLA Piper LLP

UKEAT/0263/09

, at paragraph 40).

[114]An impairment will only amount to a disability if it has an adverse effect on the individual’s ability to carry out normal day-to-day activities, i.e. things that people do on a regular or daily basis.

[115]Was that effect substantial? “Substantial” means “more than minor or trivial” (section 212 EqA 2010). Section B1 of the Guidance On Matters To Be Taken Into Account In Determining Questions Relating To The Definition Of Disability (2011) (“the Guidance”) states “The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people”.

[116]The primary focus of the Tribunal should be to consider the effects of the impairment on the claimant. “In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population. However, when assessing the effect, the comparison is not with the population at large. … what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.” (Paterson v Commissioner of Police of The Metropolis

[2007] IRLR 763

, EAT, at paragraph 27).

[117]The Tribunal should focus on what the claimant could not do because of her impairment, rather than what she could still do despite her impairment (Aderemi v London and South Eastern Railway Ltd

UKEAT/0316/12

, EAT at paragraph 14).

[118]The effect of an impairment on more than one activity, taken together, could result in an overall substantial adverse effect (paragraph B4 of the Guidance).

[119]Was that effect long-term? An impairment will have a long-term effect if it has lasted for at least 12 months, it is likely to last for at least 12 months or it is likely to last for the rest of the life of the person affected (paragraph 2(1)(a)-(c), Schedule 1, EqA 2010). “Likely” means something that “could well happen” (SCA Packaging Ltd v Boyle

[2009] UKHL 37

, at paragraph 2).

[120]The impairment must have long-term effect at the time that the alleged acts of discrimination were committed (Tesco Stores Limited v Tennant [2019] 11 WLUK 730, EAT at paragraph 11).

[121]Did the Claimant have a mental impairment? “Impairment” in this context bears “its ordinary and natural meaning”. “It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the [Claimant] has a physical or mental impairment with the stated effects” (McNicol v Balfour Beatty

[2002] IRLR 711

, CA, paragraphs 17 and 19). The term “mental impairment” is intended to cover “a range of impairments relating to mental functioning…” (paragraph 6 of Appendix 1, EHRC Code of Practice on Employment 2011). The claimant’s impairment is pleaded as anxiety disorder and depression. It is not necessary for the Claimant to establish a medically diagnosed cause for her impairment. She does not need to identify a “clinically well recognised” illness. It is the effect of the impairment that must be considered and not its cause (paragraph A7, Guidance).

[122]The focus of the Tribunal’s enquiry should be on the effect that the impairment has on the Claimant’s day-to-day activities (DLA Piper, paragraph 38). If the Tribunal finds a long-term substantial adverse effect, it will, in most cases, follow “as a matter of common sense inference” that the Claimant is suffering from an impairment which has produced that effect.

[123]In DLA Piper, the EAT drew a distinction between symptoms of low mood and anxiety caused by clinical depression and those derived from a “medicalisation of work problems” or “adverse life events”, concluding that whilst the former was likely to be a disability, the latter was not (paragraph 42). In Herry v Dudley Metropolitan Council

UKEAT/0100/16

and Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School

UKEAT/0101/16

, the EAT observed that “… there is a class of case where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities” (paragraph 56).

[124]The duty to make reasonable adjustments arises under Section 20 of the EqA 2010 which provides as follows (with a “relevant matter” including a disabled person’s employment and A being the party subject to the duty):- “(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.”

[125]The Tribunal must identify the provision, criterion or practice applied, the non-disabled comparators and the nature and extent of the substantial disadvantage suffered by the claimant. ‘Substantial’ in this context again means more than minor or trivial. In cases involving the application of an attendance management procedure, it was (according to Griffiths v Secretary of State for Work and Pensions

[2015] EWCA Civ 1265

) the requirement to consistently attend at work which put the disabled employee at a substantial disadvantage and at greater risk of being dealt with under that type of policy.

[126]The case of Wilcox –v- Birmingham Cab Services Ltd

EAT/0293/10/DM

clarifies that for an employer to be under a duty to make reasonable adjustments he must know (actually or constructively) both firstly that the employee is disabled and secondly that he or she is disadvantaged by the disability in the way anticipated by the statutory provisions.

[127]Otherwise in terms of reasonable adjustments there are a significant number of factors to which regard must be had which as well as the employer’s size and resources will include the extent to which the taking the step would prevent the effect in relation to which the duty is imposed. It is unlikely to be reasonable for an employer to have to make an adjustment involving little benefit to a disabled person.

[128]In the case of The Royal Bank of Scotland –v- Ashton

UKEAT/0542/09

Langstaff J made it clear that the predecessor disability legislation when it deals with reasonable adjustments is concerned with outcomes not with assessing whether those outcomes have been reached by a particular process, or whether that process is reasonable or unreasonable. The focus is to be upon the practical result of the measures which can be taken. Reference was made to Elias J in the case of Spence –v- Intype Libra Ltd

UKEAT/0617/06

where he said: “The duty is not an end in itself but is intended to shield the employee from the substantial disadvantage that would otherwise arise. The carrying out of an assessment or the obtaining of a medical report does not of itself mitigate, prevent or shield the employee from anything. It will make the employer better informed as to what steps, if any, will have that effect, but of itself it achieves nothing.” Pursuant, however, to Leeds Teaching Hospital NHS Trust v Foster

UKEAT/0552/10

, there only needs to be a prospect that the adjustment would alleviate the substantial disadvantage, not a ‘good’ or ‘real’ prospect.

[129]In O’Hanlon v Revenue and Customs Commissioners

[2007] ICR 1359

, the claimant suggested that she ought to receive full pay during sickness because the reduced pay she was on as a result of her disability was causing her stress and exacerbating her poor mental health. The Court of Appeal, however, thought that it would only be in highly exceptional circumstances that it could be considered a reasonable adjustment to give a disabled person higher sick pay than would be payable to a non-disabled person.

[130]If the duty arises, it is to take such steps as is reasonable in all the circumstances of the case for the respondent to have to take in order to prevent the PCP creating the substantial disadvantage for the claimant. This is an objective test where the Tribunal can indeed substitute its own view of reasonableness for that of the employer. It is also possible for an employer to fulfil its duty without even realising that it is subject to it or that the steps it is taking are the application of a reasonable adjustment at all.

[131]In the EqA 2010 discrimination arising from disability is defined in Section 15 which provides:- “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if – A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that treatment is a proportionate means of achieving a legitimate aim.”

[132]It is necessary for the something arising from disability to be a cause, but it does not have be the main or sole cause of the of the unfavourable treatment (see Hall v Chief Constable of West Yorkshire Police

[2015] IRLR 893

[133]In General Dynamics Information Technology Ltd v Caranza EAT 2015 [IRLR] 43, HHJ Richardson held that where an employee wishes to complain that they have been dismissed for disability related absence they should bring a discrimination arising rather than a reasonable adjustments complaint. Such cases were not about taking practical steps to prevent disadvantage but cases about the extent to which an employer was required to make allowances for a person’s disability. A claimant might easily establish the act of dismissal as unfavourable treatment leading to the requirement for the employer to show that it acted proportionately as a means of achieving a legitimate aim. Proportionality is a matter for the tribunal’s judgment albeit based on a fair and detailed analysis of the working practices and business considerations involved.

[134]Section 123 of the Equality Act 2010 provides for a three month time limit for the bringing of complaints to an Employment Tribunal. This runs from the date of the act complained of and conduct extending over a period of time is to be treated as done at the end of the period. A failure to comply with a duty to make reasonable adjustments is an omission rather than an act. A failure to do something is to be treated as occurring when the person in question decided on it. This may be when he does an act inconsistent with doing it. Alternatively, if there is no inconsistent act, time runs from the expiry of the period in which the person might reasonably have been expected to implement the adjustment. The Tribunal has an ability to extend time if it is just and equitable to do so.

[135]The tribunal reminds itself that in the case of Robertson v Bexley Community Centre

[2003] IRLR 434

it was stated there was no presumption that a Tribunal should exercise its discretion to extend time and in fact the exercise of the discretion would be the exception rather than the rule. The factors to be taken into account when deciding whether to exercise the discretion to extend time in discrimination claims include those which are set out in the Limitation Act 1980, section 33(3). That approach was endorsed by the Employment Appeal Tribunal in the case of British Coal Corporation v Keeble and Others

[1997] IRLR 336

. The ultimate consideration is the balance of prejudice, but other relevant matters include the length of the delay and the reasons for it; whether the delay is likely to affect the cogency of the evidence and the extent to which the other party has co-operated with any requests for information.

[136]In a claim of unfair dismissal, it is for the employer to show the reason for dismissal and that it was a potentially fair reason. One such potentially fair reason for dismissal is a reason related to capability under Section 98(2)(a) of the Employment Rights Act 1996 (“ERA”). This is the reason relied upon by the respondent.

[137]If the respondent shows a potentially fair reason for dismissal, the Tribunal shall determine whether dismissal was fair or unfair in accordance with Section 98(4) of the ERA, which provides:- “ [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case”.

[138]Classically in cases of long term sickness absence the Tribunal will be concerned with the information of the claimant’s medical position upon which the decision was based, consultation with the employee and their own views regarding a potential return to work and whether reasonable attempts have been made to identify alternative duties or positions.

[139]The Tribunal must not substitute its own view as to what sanction it would have imposed in particular circumstances. The Tribunal has to determine whether the employer’s decision to dismiss the employee fell within a band of reasonable responses that a reasonable employer in these circumstances might have adopted. It is recognised that this test applies both to the decision to dismiss and to the procedure by which that decision is reached.

[140]It was said in Spence v Paragon Wallpapers Ltd

[1976] IRLR 373

that the basic question to be determined is whether the employer can be expected to wait any longer and, if so how much longer? This will depend on the individual circumstances of each case.

[141]It was said in the case of BS v Dundee City Council

[2014] IRLR 131

that: “If the employee states that he is anxious to return as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination…”

[142]The case of McAdie v Royal Bank of Scotland [2007 EWCA Civ 806 concerned the situation where the employee argues that their ill-health has been caused by the employer. Whilst accepting that it may be of some relevance that the employer’s treatment has in fact caused the ill-health, something that may require the employer to “go the extra mile” it noted that the concern will be with the reasonableness of the employer’s conduct on the basis of what he reasonably knew or believed at the time of dismissal, and for that purpose a definitive decision on culpability or causation may be unnecessary.

[143]A dismissal may be unfair if there has been a breach of procedure which the Tribunal considers as sufficient to render the decision to dismiss unreasonable. The Tribunal must have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.

[144]If there is such a defect sufficient to render dismissal unfair, the Tribunal must then, pursuant to the case of Polkey v A E Dayton Services Ltd

[1998] ICR 142

, determine whether and, if so, to want degree of likelihood the employee would still have been dismissed in any event had a proper procedure been followed. If there was a 100% chance that the employee would have been dismissed fairly in any event had a fair procedure been followed then such reduction may be made to any compensatory award. The principle established in the case of Polkey applies widely and beyond purely procedural defects.

[145]In addition, the Tribunal shall reduce any compensation to the extent it is just and equitable to do so with reference to any blameworthy conduct of the claimant and its contribution to her dismissal – ERA Section 123(6).

[146]Under Section 122(2) of the ERA any basic award may also be reduced when it is just and equitable to do so on the ground of any kind conduct on the employee’s part that occurred prior to the dismissal.

[147]Applying the facts as found to the legal principles the tribunal reaches the conclusions set out below.

Conclusions

[148]The first issue for the tribunal to determine is the claimant’s status as a disabled person. The respondent accepts that the claimant was disabled by reason of the impairment of anxiety and depression from February 2019 onwards. Its logic is that the claimant suffered from the impairment, which it is accepted caused substantial adverse effect on her normal day-to-day activities, from 12 February 2018 when she began a lengthy period of absence from work. From that point the respondent accepts that the claimant’s GP records are corroborative, at least to some extent, of the substantial adverse effect. The tribunal finds that they are.

[149]The claimant’s position is that she was a disabled person from September 2018 at the latest. It is firstly said that the claimant’s symptoms were sufficient to have had a substantial adverse effect on normal day-today activities from September 2017 and, therefore, they were long-term by September 2018. It is noted that the claimant did in her grievance about Mr Nassim of 1 February 2018 attribute her ill-health to the period from September 2017 and that it is unlikely that the symptoms would have appeared all of a sudden in February 2018, with the claimant’s account being of symptoms starting from the previous September building up to the point where she recognised that a mental health condition required her to see her doctor in February 2018.

[150]Alternatively, the claimant argues that, if her symptoms only had a substantial adverse effect on her ability to carry out day-to-day activities from February 2018, by September 2018 this been ongoing for 7 months. At this point of time the claimant was taking medication with no indication that this was going to stop and, in all the circumstances, the symptoms were likely to last 12 months.

[151]The tribunal’s determination is made more difficult by its consideration that the claimant’s evidence of the effects of her condition represented an exaggeration or a confusion regarding the chronology of the worsening of her symptoms. The claimant’s GP medical notes in late 2017/early 2018 are not corroborative of the symptoms she says she was experiencing and in circumstances where it is not credible that, had she been suffering in the way she now maintains, she would not have informed her doctor. Although the claimant reported suffering from dizziness in December 2017, the GP notes record that it had started that morning and was thought to be due to an ear infection. The letter produced from the claimant’s GP dated 4 June 2020 refers to episodes of stress on 5 June 2017 attributed to work but only to anxiety disorder and depression from February 2018 to date.

[152]The tribunal is clear that the effects on the claimant after that date were more than an adverse reaction to difficulties at work. Whilst work may have been the root of her mental health problems, those mental health problems had expanded beyond issues in the workplace such as to affect her in her normal day-to-day activities outside the workplace to a substantial extent.

[153]The tribunal does then find that as at 24 August 2018 it was likely (it could well happen) that the substantial impairment on the claimant’s ability to carry out normal day-to-day activities would last for at least 12 months. That was a point in time 6 ½ months after the commencement of her lengthy absence, in circumstances where it must be the case that 12 February 2018 was not the first date upon which she had experienced the symptoms of her anxiety and depression. On 24 August the claimant was seen by a clinical nurse specialist in occupational health who reported on that date to the respondent.

[154]Whilst the claimant reported an improvement of symptoms, they were continuing and she was going to be absent from work for another 4 weeks. Her antidepressant medication was continuing. The claimant was going to have to implement routines and lifestyle changes to maintain a work/life balance, with the obvious implication that, if she did not, there would be a detrimental effect on what was described as her long-term mental health condition. It was advised that it was prudent to put in place reasonable adjustments and manage the claimant as if a disabled person within the meaning of the Equality Act. When the claimant was able to return to work, it was clear that this would have to be on a phased basis and it was recommended that there be adjustments to triggers for attendance management in relation to what was again stated to be her long-term mental health condition. An action plan ought to be put in place should she experience problematical symptoms in the workplace – for instance if she had feelings of being overwhelmed. Consideration should be given to her having short notice annual leave should she experience a flare-up in problematic symptoms. Occupational health was unable to advise on the timescale for the claimant returning to full fitness. It was hoped that she would be able to achieve stability in with her anxiety, but with appropriate support/interventions.

[155]The tenor of the occupational health advice is not of an individual who had recovered, but one who would continue to experience a level of impairment and who required careful self-management and practical assistance from the respondent to maintain any future return to work which, again, would have to be on a phased basis. There was no suggestion that the claimant would cease taking medication and, whilst there is no medical evidence, that medication is likely to have been prescribed because of its continuing beneficial effects without which the claimant’s impairments would have been greater. The claimant was a disabled person by reason of anxiety and depression from 24 August 2018.

[156]Furthermore, certainly from that date the respondent cannot and does not show that it did not know and could not reasonably have been expected to know that the claimant was disabled. The aforementioned occupational health report recommended that the claimant be treated as if she was disabled and indeed the respondent operated on that basis in appreciating the need to make adjustments for the claimant in her return to work shortly thereafter. The respondent’s main argument against knowledge is reliant on Dr Giri’s subsequent occupational health report dated 5 September 2019. An employer must make its own factual assessment of whether an employee is disabled, albeit there will be circumstances where reliance can be placed on occupational health opinion. The issue will be fact sensitive. In this case, Dr Giri’s view was not one which the respondent expected and it was recognised at the time that the way he expressed his opinion was unusual. No further enquiry was made of his opinion and how he had reached it. This was largely a result of the respondent continuing to recognise that it was appropriate to treat the claimant as if disabled and to seek to make reasonable accommodations for her which might assist in a return to work. That had been the respondent’s position after the 24 August 2018 report and was unchanged by the subsequent report of Dr Giri. After the claimant’s return to work in September 2018, the claimant might have been requesting at times additional hours and the ability to do on-call work, but the respondent’s position was that she was effectively jumping the gun and was not yet well enough.

[157]The tribunal then turns to the claimant’s complaints alleging a failure to make reasonable adjustments for which the respondent is potentially liable.

[158]The first of those complaints is based upon the respondent applying a PCP that “in order to achieve promotion from a band 5 radiographer to a band 6 radiographer role, employees… had to undergo self-taught training.” The tribunal cannot, on the evidence, accept that any such criterion or practice was applied by the respondent. The respondent’s senior development programme was a voluntary tool which band 5 employees could use to gain experience, knowledge and skills which might put them in a better position at a competitive interview process which they would have to succeed in if and when a band 6 vacancy arose. The tribunal agrees with Mr Sugarman that it was neither necessary nor sufficient for promotion. Mr Weiss effectively recognises this, but says that the senior development programme was the regime the respondent offered its band 5 employees to assist them to gain the competencies which would assist them in a competitive interview and it offered this regime to the claimant. That does not however match the PCP pleaded in this claim. It is not open or appropriate for the tribunal to seek to redraw it at this late stage.

[159]The tribunal has in any event engaged with the senior development programme and whether it put the claimant at a substantial disadvantage. Her case is that it did so because she was anxious as to whether she could successfully undergo self-taught training.

[160]The tribunal does not believe that the evidence supports the existence of that substantial disadvantage. There is no evidence that the claimant on her return to work in September 2018 could not function as a band 5 radiographer. She had been provided with a designated mentor and at times workplace mentors. There is evidence that the claimant could and did raise issues with Ms McGarty. Even if not working in the vicinity of the claimant, she was readily contactable. The tribunal cannot accept that the claimant was unable to ask colleagues at work for help and guidance or that this would not have been welcomed by them. Previous difficulties raised by the claimant related more to her prior band 6 role in the PACS team. Whilst the claimant’s witness statement had referred to difficulties in concentration or retaining information, it emerged that her issue was that her anxiety caused her difficulty in asking others to help. Indeed, there is no evidence of an inability to concentrate or retain information which would have necessarily been part of her band 5 radiography role which the claimant was able to perform. The claimant’s assertions of anxiety lack credibility in circumstances of her being able to commence a two-year course of education at Sheffield City College which required weekly attendance in an unfamiliar environment and with new people.

[161]Even had a substantial disadvantage been shown, the tribunal concludes that it was reasonable for the respondent to require the claimant to have her band 5 competencies signed off before seeking experience in the band 6 competencies. This was against a background of the claimant commencing a phased return and then seeking permanent part-time employment with the suggestion that this would assist in terms of her health. The claimant was able to make her own choices and to make some progress in respect of acquiring the band 6 competencies as and when the opportunity arose, including in her own time. Had the obligation to make an adjustment arisen, this would not in any event have been the introduction of training which did not encompass at the very least a significant element of self-learning in circumstances where the key competency of a band 6 radiographer (which differentiated such person from a radiographer at band 5) was the ability to manage others, train others and act autonomously. The claimant might reasonably have been given guidance and further mentoring support and this is exactly what the respondent anticipated happening if and when the claimant reached the stage of being signed off on her band 5 competencies and was in a position to seek to progress. All of this, of course, ignores the central and fundamental misunderstanding the claimant had and persisted to have (despite it being explained to her) regarding the mechanisms available to achieve her advancement to a band 6 radiographer.

[162]This claim is in any event significantly out of time in circumstances where the latest point at which the duty can have arisen on the claimant’s case is when she formally/permanently moved to general radiography in November 2018. This would put her claim around 10 months out of time in circumstances where the claimant has advanced no reason for not lodging her tribunal claim at an earlier point in time. This is in circumstances where she was taking legal advice from a solicitor in December 2018. The passage of time does inevitably affect the cogency of witness evidence. In all of the circumstances, it would not have been just and equitable to extend time.

[163]The claimant’s second reasonable adjustment complaint relates to respondent’s admitted requirement that band 5 radiographers worked across multiple sites. The claimant’s case is that this put her at a substantial disadvantage as she founded it a source of debilitating stress and anxiety, particularly as Royal Hallamshire Hospital was unfamiliar to her. The claimant maintains that it would have been a reasonable adjustment to limit her attendance at that hospital and to work wholly or primarily at the Northern General Hospital.

[164]The tribunal notes that the claimant was not seeking to avoid working at the Royal Hallamshire Hospital due to a risk of having to work or come into contact with Mr Nassim. He worked at the Northern General Hospital. Also, the claimant’s move to general radiography involved her having to work with new and different people regardless of where she carried that work out. She had moved department. Given the rotation of staff, the people (or at least a number of people) she worked with at the Royal Hallamshire Hospital would be the same people she was now working with at the Northern General.

[165]The claimant’s journey to work at the Northern General Hospital involved her driving from her home and the tribunal cannot conclude that having to drive a further distance, which might take around 20 minutes extra, to reach the Royal Hallamshire put her at a substantial disadvantage because of her anxiety. There is simply no evidence to support this. If the claimant could drive safely to one site and complete her shift, she could drive safely and work at the other. The tribunal is again mindful of the claimant’s decision to attend Sheffield City College and to travel to that location 2 days each week.

[166]The tribunal notes further that there was available for the claimant’s use a free shuttle bus to transport her from the Northern General to the Royal Hallamshire site. This might have taken her slightly longer than driving herself to the Royal Hallamshire Hospital but would have alleviated any anxiety regarding an extended drive taking her round Sheffield city centre. Furthermore, this would have removed any issue of additional cost. The claimant had a permit allowing her to park at the Northern General Hospital. Indeed, the claimant’s evidence is that additional cost and an element of “hassle” were the driving factors in her not wishing to work at the Royal Hallamshire too much.

[167]When the claimant was told on 21 September that working some shifts at the Royal Hallamshire would give her experience of additional specialties and assist her in her work and future aspirations, she did not object will say that this would be the source of debilitating stress. Mr Gee confirmed that the claimant did express a reluctance to him to work out the Royal Hallamshire due to unfamiliarity with the staff. His view was that her concerns would be alleviated once she did work some shifts there and got to know people. On 4 October 2018 the claimant told Ms McGarty she did not want to go to the Royal Hallamshire due to the drive and it being more stressful to her. On 28 December 2018 she said that was her “preference” to work at the Northern General, but she did not say that she could not work at the Royal Hallamshire. An occupational health report of 14 January 2019 referred to the issue of locations but said that the claimant had said his about being “based” at the Royal Hallamshire. Whilst it is recognised that the claimant did work a significant number of his shifts at the Royal Hallamshire, there was never a suggestion that she be based there. There were, it is noted, no reports of the claimant being unable to cope at work during the shifts she did work at the Royal Hallamshire. That is not the bigger the two hospitals and whilst there were some satellite sites in the vicinity of the Royal Hallamshire at which the claimant might from time to time work, there is no evidence that she was unable to physically move between them.

[168]The tribunal has accepted that at the grievance appeal hearing on 13 June 2019 the claimant said that she was prepared to rotate around multiple sites if she was paid as a band 6 radiographer. Such statement undermines the claimant’s assertion that she was placed at a substantial disadvantage due to her disability in being asked to work across sites. Indeed, the tribunal concludes that she was not placed in such substantial disadvantage and there has been no failure to make a reasonable adjustment.

[169]Had the claimant been able to traverse these hurdles, the tribunal would have concluded that the claimant could have been restricted to the Northern General site, certainly for an interim period. However, on its findings the claimant does not get to that point in this complaint.

[170]There would also then have been the further issue of time limits. The claimant’s case is that the respondent ought to have made this adjustment when she returned to work in September 2018. On that basis the complaint is around 12 months out of time. For reasons similar to those stated already above, it would not have been just and equitable to extend time. The claimant has provided no explanation for her delay.

[171]The third set of reasonable adjustment complaints relate to the respondent’s application of the attendance management procedure. Whilst the applicable PCP to be relied upon in respect of a number of adjustments ought more accurately be the requirement to attend work consistently so as not to be at risk of being dealt with under attendance management procedures, the tribunal does not consider the respondent would be prejudiced by any relabelling issue regarding the relevant PCP in circumstances where the claims have been well understood by the respondent. Certainly, the claimant was put at that substantial disadvantage when compared to a non-disabled employee in rendering satisfactory attendance.

[172]The first reasonable adjustment contended for is then that the date of the termination of the claimant’s employment ought to have been deferred to enable her to have time to recover sufficiently to return to work in her existing role. The tribunal cannot conclude that this would have alleviated her disadvantage and given her the opportunity of a return to work. It was not reasonable for the respondent to defer the termination date in circumstances where the claimant had been asked if the respondent could do anything to assist a return to work but she was unable to come up with or indicate any practical steps other than have her previous grievances re-looked at. The tribunal finds that to be the case having had full regard to her 31 October 2019 email. The onus of course is on the respondent, but the respondent reasonably also could not see how the claimant could be assisted in a return to work with any possible or assessable timescale. There was no indication at all of a time when the claimant would be fit to return to work. Occupational health advice was that there had been very little progress and no timescale could be predicted. Dr Giri’s view was that addressing the claimant’s issues to seek to reach a solution was the best adjustment to be considered. The claimant’s position was that a significant number of issues set out in his report and discussed with the respondent subsequently needed to be revisited, but she could still give no indication of when that might result in return to work. She would require the matters not only to be reopened, but determined in a way which was satisfactory to her. That was in circumstances where all of the respondent’s procedures had been exhausted in terms of her individual complaints. It is noted that ordinarily the dismissal stage might have been reached in a case of longterm absence after a period of 9 months absence, whereas the claimant left somewhat earlier and the process which led to dismissal was started some time before that point was reached. However, that was in accordance with the respondent’s policy and in circumstances where a delay would have been of no benefit to the claimant. In circumstances of the claimant having exhausted her sick pay entitlement, it was not reasonable to defer termination without any foreseeable return to work. Of course, holiday entitlement would have continued to accrue during this period. There was no prospect of a return to work, whatever the respondent might reasonably have done.

[173]It is then said that restoring the claimant’s band 6 pay would have alleviated a source of stress to the claimant and have enabled her to manage her attendance. The claimant refers to her email of 31 October 2019 where she suggested that this might restore her confidence and that within Agenda for Change there was already provision for maintaining salary when transfers had been made for operational reasons.

[174]The tribunal cannot agree. It accepts the respondent’s position that it is her case that she ought to have been paid for a role she was not performing and in fact was at that point not competent to perform. Furthermore, judging reasonableness, it is appropriate to consider how the claimant arrived at her position as a band 5 radiographer and how she was paid for it. Pending the outcome of the ABAW process the claimant was given the option of returning to her substantive band 6 role in the PACS team (with the possibility of mediation with Mr Nassim) or, at her option, moving to a band 5 general radiographer role. The claimant had already given a clear preference to move out of the PACS team. The ABAW conclusion was that there was no basis upon which to move Mr Nassim out of the PACS team. There was no conclusion of misconduct on his part and, from what the tribunal has seen, any allegations upheld against him were never going to come close to a finding of gross misconduct. The finding was that there had been a relationship breakdown that was not the result of his bullying. The claimant had already again made it clear that she did not wish to return to the PACS team. The claimant ultimately chose to take up the band 5 role knowing that the respondent intended to pay her at the lower band 5 rate. Nevertheless, as a result of her grievance Ms Bailey had taken significant steps in terms of the respondent’s ordinary pay structures to increase the claimant’s salary to the top of band 5 and ensure that she kept the same April incremental pay rise date which meant that her pay had risen to surpass the rate of pay she would have enjoyed in her previous band 6 role. The respondent behaved more than reasonably in mitigating the financial impact of her move. No doubt being paid as a band 6 employee would have made the claimant happy, but it would have had the risk of compromising the integrity of the pay grades associated with her profession. Certainly, it would have been unreasonable to recognise the claimant as a band 6 employee in circumstances where she was still refreshing her competencies at only the band 5 level.

[175]The claimant then raises the application of a bespoke procedure to review the various grievance decision/appeals which she felt had been inadequately considered as a way of alleviating a source of stress. It is correct that the respondent was not prepared to step outside of its procedures to review the claimant’s complaints. Defects alleged in the procedures adopted in her various complaints are pointed to by Mr Weiss, but not defects of a fundamental nature. The claimant had pursued a significant number of complaints and exhausted the ordinary and, it has to be said, very full procedures allowed by the respondent. It was not unreasonable in the circumstances for the respondent to refuse to create a separate higher review outside of its own procedures. That was in circumstances where, again, the claimant’s complaints had been thoroughly considered with detailed outcomes given. Fundamentally, it was indeed manifestly clear that the claimant would not accept any outcome at any further additional stage of hearing unless, from her perspective, the outcome was successful. Simply allowing a further process would not have helped get the claimant back to work. There was no such prospect.

[176]It is next said to have been a reasonable adjustment for the respondent to provide the claimant with a phased return to work. This adjustment, it is said, ought to have been made at the point of the decision to terminate her employment. At that point, of course, the claimant was not fit to return to work at or in the foreseeable future. The respondent’s past dealings with the claimant strongly suggest that, had she ever been fit to return, then the respondent would properly and readily have allowed that return on the basis of her building up her hours and duties to the point where she was fit to work her full contractual hours and duties. This cannot have been a reasonable adjustment which would have allowed or raised possibility of a return to work at that point the claimant’s employment ended.

[177]Finally, as a reasonable adjustment, the claimant states that she ought to have been provided with a colleague who she could work shadow and who could act as a buddy for her. This she says would have alleviated her stress and anxiety. The claimant’s case is also that band 6 training would have restored her confidence and a senior radiographer buddy would have assisted in this. Of course, the claimant was provided with a buddy on her return to work in September 2018. The reasonable adjustments sought relate to the claimant’s return to work after long-term ill-health. Again, there was no indication that the claimant was or would be likely to be fit to return to work. If and when she had been, then, again, the tribunal has no doubt that the respondent would have been amenable to providing a buddy to assist her. The tribunal has already addressed the issue of training for band 6 competencies. It was and would have remained reasonable for the respondent to require the claimant to be signed off in respect of her band 5 competencies before seeking to progress this.

[178]All of the reasonable adjustment claims fail and are dismissed.

[179]The claimant next brings a complaint of discrimination arising from disability in respect of her dismissal. Certainly, the act of dismissal was unfavourable treatment and it arose from the claimant’s sickness absence which turn had at its root her disability impairments. The respondent has shown a legitimate aim in needing to maintain efficiency and effectiveness by requiring a reasonable level of attendance in its employees. The issue then is whether it was proportionate to dismiss the claimant.

[180]That involves a balancing exercise in circumstances where it was obviously a serious detrimental step for the claimant to lose her employment. Nevertheless, on balance, the tribunal is satisfied that the respondent acted proportionately. There was no evidence of any likely future return to work nor any adjustments which could have been made which would have achieved a return to work with reference to any defined or likely achievable timescale. Balanced against that, the respondent was short staffed which was resulting in longer patient waiting times and a greater risk of mistakes given the additional burden on staff who were at work. The claimant’s role could not be filled by suitably qualified agency or temporary employees. The claimant was of relatively short service and viewed as a whole had a significant record of absence. Certainly, dismissal was proportionate in all the circumstances.

[181]The claimant’s dismissal was also a fair dismissal. The reason for her dismissal was capability, a potentially fair reason. The respondent followed its absence management policy. Its move to stage 3 was earlier than it was envisaged would normally occur, but in circumstances where the policy allowed for a curtailment. There was significant discussion with the claimant before the decision was reached in circumstances where she was not able to indicate any likely return to work. The respondent took reasonable steps to inform itself as to the correct medical position and, fundamentally, the prognosis regarding a return to work was confirmed by occupational health advice. The tribunal does not consider that the respondent acted unreasonably in not re-referring the claimant to Dr Giri. Given that the claimant was treated by the respondent as if disabled, a reevaluation of her as a disabled person would have made no difference to its decision-making.

[182]The claimant’s primary argument regarding unfairness is that the respondent and, in particular, through Mr Nassim, caused her absence. However, the evidence is that this arose from a clash of personalities. After a full investigation there was no conclusion that the claimant had been the victim of bullying, but evidence from colleagues that the claimant herself was capable of being headstrong and stubborn. The claimant had genuine concerns and grievances and raised these with the respondent. The refusal to accept the outcomes and to accept the conclusions which did not match her own clearly exacerbated the situation regarding her continued ill-health. Certainly, in all the circumstances of this case, the cause of the claimant’s illness did not prevent the respondent from fairly dismissing her in the face of evidence of no foreseeable return to work after an absence of around 8 months where the claimant was adamant that the respondent needed to take steps it was reasonably not prepared to take in reopening her concerns.

[183]There was no evidence of any alternative employment which could have achieved the claimant’s return to work.

[184]Dismissal was within a band of reasonable responses given the length of absence, there being no evidence of any likely future return to work and the aforementioned pressures on the radiography service. The claimant’s complaint of unfair dismissal must fail and is dismissed.

[185]The claimant’s final complaint is one seeking damages for breach of contract or alternatively a claim that the respondent made unauthorised deductions from wages. This relates to the respondent paying the claimant at the band 5 rate of pay since around 3 December 2018 up to the termination of her employment.

[186]It is said that the claimant agreed to carry out band 5 general radiography duties but that the respondent accepted that she did not agree to be paid at that rate. The respondent had no contractual power to vary the claimant’s pay in the absence of an agreement. She was not redeployed through the attendance management procedure but rather outside of any procedure. Contractual variation of pay forms were never sent to the claimant for her express agreement.

[187]The tribunal rejects the assertions either that the claimant suffered a reduction in pay in breach of her contract of employment or on the basis that she was not in receipt of the remuneration which was properly payable to her.

[188]The claimant was presented with the option of remaining in a band 6 role in the PACS team or returning to work in a band 5 role in general radiography. It was always clear from the respondent that she would be paid at band 5 rate for the position. There was never an offer to retain band 6 pay in general radiography.

[189]This was not a case of the respondent seeking to make a unilateral variation in the claimant’s pay. There were two roles effectively on offer and for her to accept or reject. The claimant by opting to work in general radiography and perform the duties of a band 5 radiographer accepted the respondent’s offer of the position at band 5 pay. That was the only basis upon which this offer was open to be accepted. Her contract of employment was varied by agreement.

[190]Alternatively, if there had been effectively a unilateral imposition by respondent of the change in role, then that would in the circumstances amount to a dismissal and a subsequent re-engagement of the claimant in the band 5 role on band 5 pay. The claimant could have continued in that position and brought a complaint for unfair dismissal. Of course, she did not do so. The claimant herself in evidence referred to a belief that she had been dismissed and re-engaged.

[191]There is no entitlement to damages for breach of contract or any unauthorised deduction from the claimant’s wages and those claims must also fail and be dismissed.