AA v [XX] University Teaching Hospitals NHS Trust: 1806606/2023

EMPLOYMENT TRIBUNALS

Case No 1806606/2023

Between

AAClaimant

[XX] University Teaching Hospitals NHS TrustRespondent

Before

Employment Judge JM Wade

Date 28 April 2025

JUDGMENT

The unanimous decisions of the Tribunal are as follows:

[1]The claimant’s complaint of a failure to make reasonable adjustments/provide auxiliary aids succeeds.

[2]The claimant’s allegation paragraph 45(b) - Section 15 disability discrimination by being required to undergo assessments without auxiliary aids (software and suitable screen) fails.

[3]The claimant’s allegation paragraph 45 (d) - Section 15 discrimination by withdrawal of an offer of employment as an ED Consultant – succeeds.

[4]The claimant’s allegations of Section 15 allegations 45 a, c, and e are dismissed by consent on his withdrawal.

REASONS

Introduction

[1]The claimant is a Consultant in Emergency Medicine who achieved his specialist registration while working at the respondent’s [Hospital]. [Description of MC1] This case concerns the employment consequences of that severe impairment and the respondent’s withdrawal of an offer of a consultant’s post in Emergency Medicine.

[2]The claimant also has [MC 1] and requires [MT2], He awaits [MT4]. This hearing was scheduled to accommodate that treatment and other matters arising.

Evidence

[3]The Tribunal had the benefit of two reading days and we did not commence evidence until the second week. The hearing file was around 3000 pages. We also had a helpful reading list of core documents.

[4]On behalf of the claimant we heard the following witnesses: Dr BB - Consultant in Emergency Department –WW NHS Foundation Trust working at YY Dr EE - Consultant in Emergency Department at [XX] - Claimant’s Educational Supervisor Dr CC - Specialist in the Emergency Medicine Department – WW Hospitals NHS Foundation Trust Dr DD - Consultant in Emergency Department - Undertook the assessment of the Claimant in the Emergency Care Area (“ECA”).

[5]We then heard the claimant’s evidence. On behalf of the respondent we heard the following witnesses: Mr FF - at the material times Clinical Director for Emergency Medicine, now Chief of Service for Major Trauma, on the AAC Ms GG – ED Business Support Manager - Was responsible for ordering/providing the equipment for the Claimant from December 2021 to August/September 2022. Ms II - ED Divisional General Manager - was responsible for ordering / providing the equipment for the Claimant August/September 202 Ms JJ - at the material times Operations Director (now Chief of Staff) - decided in conjunction with HR advice to withdraw the offer to the claimant;

[6]We considered all witnesses were frank and honest with the Tribunal on the matters discussed during their evidence, albeit recollections differed on a handful of areas. This was not a case where significant disputes of fact arose in the relevant evidence and we were assisted by the contemporaneous documents to which the relevant findings could be tethered. An example was that Ms JJ, who decided (with HR colleagues) to withdraw the claimant’s offer, had produced three drafts of a full paper on her reasons (4 to 14 July 2023). Limitation was in issue, as well as the “reason why”, and these versions 5 helped us with findings on both those matters. Different drafts of a letter was discussed in the evidence, different drafts of the report was not, but became apparent in our deliberations.

[7]The broad industrial experience of the lay members in addressing reasonable adjustments in demanding and challenging workplaces was invaluable.

[8]Justice generally requires witnesses to have the opportunity to comment on significant disputed matters. In particular the “less discriminatory means” part of the Section 15 analysis was not put to Ms JJ, albeit the full detail of the reasonable adjustments case was put to witnesses at length. The claimant’s position was that the “less discriminatory means” would have been to have made the contended adjustments – which is a common position in a Section 15 claim. Submissions and Judgment

[9]The Tribunal was provided with full written submissions from both counsel and they also addressed the Tribunal orally. There was no dispute on the legal principles, and Mr Wilkinson’s skeleton contained additional points to be added to Mr Arnold’s comprehensive note.

[10]On the interpretation of the facts and the application of the law the parties were, understandably apart. The respective submissions are not repeated here but it will be apparent from our conclusions where they have born fruit (or not). The issues and the law

[11]There was factual dispute about auxiliary aids provision. Disability and knowledge were conceded at an early stage. It was also conceded by the claimant that a second ACAS certificate was a nullity (Garau), and the claimant’s position on limitation was set out in a note. The claimant relied on conduct extending over a period, and submitted that the last act (offer withdrawal) was in fact decided upon on 14 July 2023 and that the whole claim was therefore in time (albeit the earlier note had identified the withdrawal as 13 July 2023). Alternatively he sought a just and equitable time limit

[12]In the Section 15 case, the claimant’s allegations of unfavourable treatment were narrowed to:(1) on 17 March 2023, 29 May 2023, 5 June 2023, and 28 June 2023, he was required to undergo assessments without the necessary reasonable adjustments, and

(2) the withdrawal of his offer of a consultant’s post. In particular it was alleged about the assessments: 12.1.1. The Software was not available for the Claimant’s assessments on 17 March 2023 and 29 May 2023; 12.1.2. The Software was not available on a suitable screen for the Claimant’s assessments; and/or 6 12.1.3. The Monitor was not available for the Claimant’s assessments at all

[13]We agreed remedy issues would not be determined in this hearing (if any complaints succeeded) other than the discreet factual issue of why the claimant delayed [MT1]. His allegation 45 (d) said this: [the unfavourable treatment relied upon includes but is not limited to] On 14 July 2023 the withdrawal of the offer of employment as an ED Consultant, in addition to the delay caused by this process/assessment, which prevented the Claimant from taking up a consultant post and cause [sic] him to delay undergoing medical treatment”.

[14]Section 39 of the Equality Act 2010 at(1) relevantly provides that, “An employer (A) must not discriminate against a person (B) - (a) in the arrangements A makes for deciding to whom to offer employment; ..(b) by not offering B employment; and at

(2) “An employer (A) must not discriminate against an employee of A’s (B) (b) in the way A affords B access....to opportunities for promotion; and at (5) A duty to make reasonable adjustments applies to an employer.

[15]Section 15 of the Equality Act 2010 relevantly provides: (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[16]The respondent accepted two of the claimant’s pleaded “something arising from disability” - its concerns about [MC1], and the requirement for it to make reasonable adjustments. It further accepted assessments of the claimant in 2023 were because of its concerns about [MC1]. The pleaded reason for withdrawal of the offer was that the claimant was unable to work independently in five out of six areas of the emergency department and to manage that department as the physician in charge. It did not accept delay was caused by the respondent, or that it was unreasonable. The respondent relied on its justification defence for the withdrawal.

[17]“Because of” in a Section 15 case means that the “something arising” operated on the mind of the person making the decision (consciously or subconsciously) to a significant (that is material) extent. See the full guidance in Pnaiser v NHS England

[2016] IRLR 710

EAT at 31. “A Tribunal may ask why A treated the claimant in the unfavourable way alleged....alternatively it might ask whether the disability has a particular consequence for a claimant that leads to “something” that caused the unfavourable treatment”. Motive (even if benign) is irrelevant. 7

[18]The Section 15(2) “justification” defence is common to direct discrimination because of age, and indirect discrimination. Whether the employer’s “means” are “proportionate” requires the Tribunal to determine whether they were “appropriate and necessary” (taking into account less discriminatory measures) (see Homer v Chief Constable of West Yorkshire

[2012] UKSC 15

paragraphs 22 to 25). Section 15 does not derive directly from the European Equality Directive, but there is no judicial decision that the Homer approach should not be applied to Section 15 (2). Even on the bare statutory language, a structured approach is required to considering whether an employer has made out the defence.

[19]It was not in dispute that the respondent had the following legitimate aims: 1. Ensuring patient safety within the Emergency Department by ensuring that ED Consultants, who are responsible for the management of the whole department when working, are capable of undertaking their role and having responsibility for and control of the whole department and an ability to undertake work in all areas of the department to a safe and appropriate standard commensurate with a Consultant; 2. Ensuring that a practitioner’s own registration to practice in their chosen field is not put at risk by their inability to undertake specific areas of work required for the Consultant level role and the management which comes with that role; 3. Ensuring that no other practitioner’s registration is put at risk as a consequence of the inability of a Consultant to undertake the role to which they have been appointed.

[20]The questions for the Tribunal were therefore: Was the treatment an appropriate and reasonably necessary way to achieve those aims? Could something less discriminatory have been done instead? How should the needs of the Claimant and the Respondent be balanced?

[21]Mr Justice Underhill (then President) in IPC Media Limited v Millar

UKEAT/0395/12/SM

is a reminder that our starting point is to identify the putative discriminator, and to examine their thought processes, conscious or unconscious.

[22]The claimant alleged the following aids were not provided and should have been during the following periods: eMC1 4 Wearable Electronic Glasses (“the Glasses”) from 6 January 2022 until 26 September 2022 (date of provision); HD Desktop Electronic Magnifier (“the Magnifier”) from 6 January 2022 until 16 March 2023 (date of provision); 8 IPS Full HD Monitor (30-inch) (“the Monitor”) from 6 January 2022 (and on a moveable platform from around February 2023) until termination of employment, instead providing an unsuitable laptop on wheels (Grounds of Resistance, paragraph 40 refers); VTArm 3 Gas Assist Monitor Arm (“the Arm”) from 6 January 2022 until termination of employment; VTKeys 2 white-on-black Keyboard (“the Keyboard”) from 6 January 2022 until 10 October 2022 (date of provision); ZoomText Magnifier Reader (“the Software”) from 6 January 2022 until termination of employment; A training session on ZoomText Magnifier Reader (“the Training”) from 6 January 2022 until 26 September 2022 (date of provision).

[23]Section 20 relevantly provides:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.... (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.... (7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to an express provisions ot the contrary) entitled to required a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A’s costs of complying with the duty.

[24]Section 21 deals with failure to comply with the duty:(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person 9

[25]Paragraphs 6.28/9 of the Employment and Human Rights Commission Code of Practice on Employment (2011) (“the Employer Code”) say this: The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take:• whether taking any particular steps would be effective in preventing the substantial disadvantage;

• the practicability of the step;

• the financial and other costs of making the adjustment and the extent of any disruption caused;

• the extent of the employer’s financial or other resources;

• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and

• the type and size of the employer. 6.29 Ultimately the test of the ‘reasonableness’ of any step an employer may have to take is an objective one and will depend on the circumstances of the case

[26]At paragraph 6.33, the codes sets out examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments including examples of: Providing information in accessible format; Allocating some of the disabled person’s duties to another person; Acquiring or modifying equipment – a large screen for a visually impaired worker; Altering his hours of working or training; Allowing him to be absent during working or training hours for rehabilitation, assessment, or treatment; Modifying procedures for testing or assessment;

[27]The code details the Access to Work Scheme at paragraphs 36 onwards, saying, “Access to Work does not diminish any of an employer’s duties under the Act.” Whether an adjustment is “reasonable” is a fact sensitive, objective question.

[28]The purpose of the statutory code, approved by parliament, is to provide a detailed explanation of the 2010 Act and to provide practical guidance on compliance. Focus on the practical nature of the duty has been well established in case law – see for example Spence-v-Intype Libra Elias P (as he then was) summarised the position in relation to reasonable adjustments under the 1995 Act at paragraphs 43 and 48: “.. The nature of the reasonable steps envisaged in s4(A) is that they will mitigate or prevent the disadvantages which a disabled person would otherwise suffer as a consequence of the application of some provision, criterion or practice. That is in fact precisely what Lords Hope and Rodger 10 say in the paragraphs relied upon; the duty is not an end in itself but is intended to shield the employee from the substantial disadvantage that would otherwise arise… In short, what s4(A) envisages is that steps will be taken which will have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work.”

[29]Paragraph 6.13 of the Code explains that “an auxiliary aid is something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include s.20(11) auxiliary services for example, provision of a sign language interpreter or a support worker for a disabled worker.”

[30]The PCPs alleged were requirements to undertake his 2022/23 senior registrar role/ the consultant’s role and to undertake assessments for a consultant’s post in 2023.

[31]The claimant alleged the following relative disadvantages: Meeting the requirements of the role of Specialty Doctor and/or ED Consultant was more difficult due to his severe MC1 impairment. The time taken to perform tasks of a Speciality Doctor and/or an ED Consultant was increased, including reading notes, processing written information, and reviewing records and scans, due to his severe MC1 impairment. When performing his role and/or the assessments, the Claimant had greater difficulty using the Respondent’s resources, especially IT systems (IT software, screen size and screen resolution). Meeting the requirements of the assessments was more difficult due to his severe MC1 impairment, and the Claimant was scrutinised for difficulties he encountered.

[32]The respondent conceded that fulfilling the requirements of the ST6 role was a PCP and also the requirement to undertake assessments because the latter carried with it the liklihood that it would be done again in a similar situation applying Ishola v Transport for London

[2020] EWCA Civ 112

, ‘practice’ denotes some form of continuum and does not apply to every one-off act or decision; something may be a practice if it carries within it an indication that it will or would be done again in future if a hypothetical similar case arose (paragraphs 34-39). The respondent did not accept the claimant was required to fulfil the requirements of the consultant’s role because he was not employed in that role.

[33]The respondent’s pleaded position was that the lack of auxiliary aids did not put the claimant at a substantial comparative disadvantage at the material times and/or that all reasonable adjustments were in place by the time of the claimant’s assessments. In evidence Ms JJ accepted that it was more difficult 11 for the claimant in relation to each of the pleaded disadvantages, but the respondent submitted that the disadvantages were not substantial. Time Limits

[34]Section 123 (3) provides: For the purposes of this section –(a) conduct extending over a period is to be treated as done at the end of the period. To establish such conduct the claimant must show (a) that the incidents are linked to each other and

(b) are evidence of a continuing discriminatory state of affairs. Hendricks v Metropolitan Police Comr

[2002] EWCA 1686

. The claimant’s primary case was one of a continuing act within Section 123(3).

[35]Section 123(1) of the Equality Act 2010 provides: “Proceedings on a complaint within section 120 may not be brought after the end of -(a) the period of three months starting with the date of the act to which the complaint relates, or

(b) such other period as the Employment Tribunal thinks just and equitable.

[36]Further: (3) For the purposes of this section— ------------------------------- (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—(a) when P does an act inconsistent with doing it, or

(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[37]Those periods are extended by the ACAS conciliation provisions where conciliation is commenced within the relevant time time either by the “stop the clock” provision or providing a further month from the close of conciliation.

[38]Time runs from the date of the alleged discriminatory act (but lack of knowledge is relevant to the grant of an extension) - see Mr GS Virdi v Commissioner of Police of the Metropolis and another

[2007] IRLR 24

EAT; in the case of a failure to make a reasonable adjustment, an omission, time runs from the date when a person does an act inconsistent with making the adjustment; or on the expiry of the period in which the person might reasonably have been expected to do it (Section 123(3)(b) and (4)). Accordingly an ongoing failure to do something is not “conduct extending over a period”. See Matuszowicz v Kingston upon Hull City Council

[2009] EWCA Civ 22

on the exercise of discretion in such circumstances.

[39]Limitation in the context of reasonable adjustments claims was considered in Fernandes v Department for Work and Pensions

[2023] EAT 114

, in particular, paragraph 16: “a) The duty to make an adjustment arises as soon as a PCP puts the disabled employee to a substantial disadvantage; The failure to make the adjustment is a breach of duty once it becomes reasonable for the employer to have to make the adjustment; b) Limitation may not run from the date of the breach, but from a later notional date, such as when an employer is under a duty to make an adjustment and omits to do so; 12 c) That notional date will accrue if the employer does an act inconsistent with complying with that duty; d) In the absence of an inconsistent act, the notional date will accrue when “it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee”.

[40]The Tribunal considers “forensic prejudice” in assessing the prejudice to each party from an extension of time - see Wells Cathedral School Ltd v Souter EA 2020 000801 JOJ.

[41]Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

makes clear that the Tribunal is entitled to consider the merits of a claim in the exercise of its discretion.

[42]The Act confers the widest possible discretion on the Employment Tribunal in determining whether or not it is just and equitable to fix a different time limit Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

. That said the power of the Tribunal is a discretion, to be exercised judicially, assessing relevant factors and the weight to be given in each case. The onus is on the Claimant to persuade the Tribunal that it is just and equitable to extend time. Robertson-v-Bexley Community Centre

2003 IRLR 434

CA.

[43]If there are circumstances which would otherwise render it just and equitable to extend time, the length of extension required is not of itself, a limiting factor unless the delay would prejudice the possibility of a fair trial see Afolabi -v- Southwark LBC

2003 EWCA Civ 15

[44]In exercising discretion under the Section 123 (1)(b) “the best approach for a tribunal...it so assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular...the length of, and the reasons for the delay” - see Lord Justice Underhill in Adedeji v University Hospitals Birmingham NHS Foundation [2021]EWCA Civ 23). The prejudice to both parties is one of those factors, recognising that it is inherently prejudicial to a respondent to lose a limitation defence.

[45]Section 33(3) of the Limitation Act 1980 contains a checklist of matters which might need to be considered (in personal injury and other claims with longer time limits), but also for the Tribunal to bear in mind if relevant: the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had cooperated with any requests for information; the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action. 13 Findings and conclusions relevant to the issues Background – the context

[46]The respondent operates [XX] University Teaching Hospital Emergency Medicine Department, (“the ED”)[]. It is a Major Trauma Centre, which employed twenty four or so ED consultants at the material times (February 2022 to July 2023). ED consultants are those senior doctors who, through training and certification, appear on the GMC Emergency Medicine Specialist Register, and can fulfil the Emergency Physician In Charge (“EPIC”) role on any shift in the ED.

[47]A difference between [XX] ED and [YY] ED, where the claimant now works, is that care protocols mean a patient with trauma to multiple parts of the body would likely be taken to [XX]. [XX] is a larger city based unit and would see around 300 to 360 or so patients a day, [YY] is a smaller district general hospital - around 200 to 300 hundred patients a day.

[48]The ED team on any shift at [XX] comprises doctors in the second three years of their six year specialist training post – known as “ST4/5/6” or “registrars”. In 2022 the claimant was an ST6 along with Drs LL and KK, all due to complete training that year.

[49]The ED team on shift was also staffed by doctors in the first three years of specialist training (CT1/2/3) and doctors in foundation training, who rotate into emergency medicine for six months or so. Emergency nurse practitioners and advanced nurse practitioners and other specialists on the rota operated at the level of CT3 doctors. With over a hundred FTE nurses they delivered a great deal of the hands on patient care. In total the ED team comprised around 200 people including admin and clerical staff.

[50]Rotas were generally arranged by a rota coordinator. The consultants agreed the shifts they wished to work by a process amongst themselves. Others on the team were then allocated shifts by the coordinator, subject to any part time or fixed rota arrangements. Ms JJ as Operations Director for ED took part in weekly meetings which considered the rotas and staff coverage. She knew, as a result, that the claimant and others had limits on their work in 2022/2023.

[51]As to limits on emergency consultants covering all areas of the department, in 2023 at least three consultants had reasonable adjustments in place which limited their coverage - they were never the sole consultant which carries with it that they could need the support of a fellow consultant, and could not therefore undertake on call night, or during the weekend sole consultant hours. It had also been agreed on appointment for one general emergency consultant to only work in paediatrics for a period of three years. In the past one consultant had been appointed to work only in majors and resus, because he was not minors trained. 14

[52]The rota provided weekday cover by two consultants at all times from 8 am until midnight and then a single on call consultant from midnight until 8am.

[53]At the weekends there were two consultants from midday until 8pm, but one from 8am until midday and then again from 8pm until midnight. In effect, three weekend consultants covered a split shift duty, a night on call duty, and an eight hour midday to 8pm shift.

[54]The EPIC confirmed the roles to be performed by clinicians while on shift at the start of each shift (subject to the fixed arrangements for some) in discussion with colleagues. These staff/clinical allocations for each shift were recorded on a white board. The EPIC would also lead colleagues through “board rounds” periodically through the shift, for each area. Board rounds include a summary of patients/locations and those with particular needs or clinical referrals/tests/scans/treatments awaited and so on.

[55]The ED comprises five areas: “IA/RAT” - Initial Assessment/Rapid Assessment and Treatment, a [number] bay area to assess patients brought by ambulance (1), the Emergency Care Area (“ECA” or “Minors”), with [number] treatment rooms and [number] additional primary care rooms (2), “Majors” – [number and description] cubicles for seriously ill/injured patients where the doctor would need to be able to go to the patient (but not requiring resus) (3), “Resus” (4) – [number and description] bays for patients requiring life sustaining treatment, “Childrens/Paediatrics” (5) – [number] cubicles, [number]resus bays and ancillary treatment rooms for under 16 patients.

[56]On any shift, the non EPIC consultant could be pulled into a different area to that where they are allocated at the beginning, including resus, and consultants are expected to be able to examine, assess and treat their own patients, as well as to be able to delegate, lead and advise other clinicians.

[57]In ECA/Minors a consultant or other clinician can generally occupy a room to see patients because the patients are, by definition, mobile. In other areas there is a greater need for consultants and clinicians to be mobile, dealing with matters wherever they arise and visiting patients in their bays/cubicles.

[58]There tend to be greater challenges with managing walking patients in minors because of the impacts of alcohol/drug addiction/mental health impairment on those patients’ behaviours One senior consultant avoided working in minors, other than during a walk around as EPIC. Generally ECA/minors was not a popular allocation amongst consultants.

[59]The job description and contract for a full time consultant provides for 75% (30 hours) direct clinical care (DCC) and 25% (10 hours) OPA/SPA (other programmed activity/supporting professional activity) (including professional development, admin, education and supervision to others). Full time consultants were expected to deliver this work in line with a job plan which was subject to local agreement. 15

[60]Consultants in emergency medicine are highly trained and skilled in using all the senses holistically to assess patients. Assessing the patient visually is one input, but so are touch, and listening – Dr DD said that the most important part of his clinical practice is listening. In his words “80% comes from a history....I accept [there are] people who can’t hear or see as well as I can – it does not mean they cannot make a valid assessment”.

[61]Incidents of patient safety/risk are recorded in “Datix” reports, which are completed by clinicians and others should any incident be observed. Background – the claimant

[62]The minimum time for specialist training is six years. The claimant started his specialist training as an ST1 in [location], then moving to [location, location] and then to [XX] as a CT3 trainee in March 2016. He was highly rated by his [XX] colleagues and he progressed through to becoming a CT6 in 2019. He and his wife had their children while in [XX] and had strong links to the community and wished to remain there.

[63]The claimant was diagnosed with MC2 and MC3 in 2019. He agreed as an adjustment that he would reduce his contract to less than its full time equivalent (.875 x 40 hours per week) to assist with fatigue and treatment. His practical training was further disrupted by being required to shield from the onset of the pandemic in March 2020.

[64]His [MC1] was treated by one operation in 2020 and two operations in 2021 at XX, intended to improve his [MC1], but with the opposite outcome. He was certified unfit to work at all from 1 July 2021 due to [MC1] and was registered [MC1]. He faced his health challenges with great courage and stoicism. The claimant’s return to work and auxiliary aids

[65]In December 2021 he was in regular contact with his educational supervisor at XX, Dr EE, who helped him to access PIP payments and signposted other help such as the [charity] and referred him to occupational health as his pay reduced from absence. The claimant applied to Access to Work (“ATW”) on 5 January 2022. He was determined to complete his consultant training and plan the next stage of his career.

[66]The claimant had only a further 12 weeks of clinical work to achieve his six year training certificate (“CCT”) from the Royal College of Emergency Medicine (“RCEM”) and he desperately wanted to return to work to complete that. Albeit an extension was possible, he was at risk of being removed from training. With Dr EE and occupational health advice, a plan was agreed including: a phased return to work, funding his own taxis to work because he could not drive and nor did his wife; no night shifts to aid rest and his MC3 condition; no work as the only senior doctor or EPIC, no on call, a risk assessment, and no tasks outside hisMC1because it was unlikely auxiliary aids to support his MC1would be available through ATW within that 12 week 16 clinical practice period. He also worked in lower risk areas (Covid 19 risk) to support his MC3/MC2. Regular breaks were also required to ensure hydration and a MC2 diet – it was recognised the claimant would likely need MT1 in the foreseeable future. The occupational health advice was provided to Dr EE.

[67]The claimant was told that Ms GG, the business support manager for ED, would support him with any ATW amendments. Ms GG had done mandatory diversity training but she had not been trained in the duty to make adjustments, nor did she understand that her role was to do any more than order equipment. She was not copied in on the email saying she would support him, nor the occupational health report.

[68]On 6 January 2022 the claimant asked Ms GG by email to approach IT to see if assistance could be provided with magnifiers/reader software to enable him to be more useful at work, because ATW could take three months. She considered the process was, ATW to purchase equipment, rather than any earlier help from IT, and she replied in rather unhelpful terms asking the claimant if he had seen occupational health. This reflected a common misunderstanding at the time: ATW and/or occupational health advice is but one way of fulfilling or approaching the duty to make reasonable adjustments – it does not, of itself, satisfy that duty which remains with the employer.

[69]In early February 2022 the claimant had the telephone OH appointment confirming the arrangements above and he returned to work and had a conversation with Ms GG and Dr EE. He worked in ECA/minors supporting the team giving advice and supporting decision making. Dr EE secured funding from Health Education England (“HEE”) for the claimant to be supernumerary to the general ED rota (that is the respondent did not have to fund the first phase of the return because this was funded by HEE). The claimant was very active in trying to problem solve his MC1 at work because he wanted to return to the general rota – that is to be able to be allocated to any area where it was safe for him to practice.

[70]On or around 18 March 2022 he attended an Exhibition [for MC1] and emailed Ms GG and Dr EE saying he had tested a set of goggles at the exhibition which would enable ECG and X-Ray reading as normal – he described them as expensive but exciting – and that he wanted ATW to get them “so that I can return to full duty”. It was clear from the tone of the short email that the claimant was greatly encouraged by the assistance this equipment could provide to him and his ability to contribute to the department.

[71]In April the claimant trialled that equipment at work with success. Pending any ATW assessment, he was finding reliance on colleagues to read notes or assist him with reading from screens stressful and humiliating, and he shared that with the [MC1] clinic treating him. That month his [MC1] clinic liason practitioner emailed HR asking for assistance in moving along the supply of a large screen and “ZoomText” software, pending ATW because she had established an ATW backlog - it could well be another two months before ATW provided assistance. 17

[72]She had also approached the respondent’s IT team on the claimant’s behalf, with a “dead end” (aligned to Ms GG’s position that any IT equipment had to come via ATW or OH recommendation) - the IT dead end was described by her as, “understandable” pre ATW assessment. In any event nothing useful came from that intervention (in terms of large screen or software provision) save that HR emailed to offer help to Dr EE, but when he asked what help could be provided there was no reply. The respondent’s diversity and inclusion manager also offered pastoral/advocacy support to the claimant but he could not organise reasonable adjustments or equipment.

[73]Given the delays in ATW, in or around May 2022 the claimant bought or acquired himself a number of basic items including: a hand held magnifier, three/four pairs of conventional glasses including “up close” glasses, desk based magnifying glasses, and a digital magnifier much like a mobile phone. This could be held up to documents or body parts, and which could alter the colour scheme and magnification of an image. Manipulating a hand held magnifier and his up close glasses he developed a method of reading ECGs and blood gases, but he was slower in doing so than he would like. He also bought a conventional headset magnifier, perhaps two months later in July, to help him magnify things but remain handsfree. That assisted him to use two hands to type while magnifying, and later with procedures – canulation – for example, much like the headset a watch repairer or jeweller would wear.

[74]Meanwhile Dr EE was looking for careers support for the claimant because he acknowledged that finding suitable employment as an ED consultant could be challenging (the claimant was then - mid May - without ATW recommended auxiliary aids) - and suggestions were made about having a screen from radiology because interpreting X rays was very difficult for him.

[75]The claimant’s ATW assessment took place on 20 May. The claimant was expected to complete his CCT, despite his complex medical conditions, by the end of May and an “ESLE” (extended supervised learning event) with Dr EE evidenced that although his ill health and visual impairment limited what he could do clinically, “the work he is able to do is the standard of a new consultant”. This was reported in an education governance meeting on 27 May and confirmed in his “Annual Review of Competency Progression” on 30 May, which he passed.

[76]The claimant was then eligible for his CCT and entry to the RCEM specialist register of consultants. He could apply for consultant posts (indeed ST6s can apply in the six months before their expected qualification). The ED was looking to recruit two new consultants and Mr FF wanted to “catch” the newly qualified consultants - Drs KK and LL, and the claimant. The respondent also had funding for locum consultants at that time.

[77]The 27 May 2022 meeting of ED consultants also recorded that Ms GG was helping to set up a bespoke work station for the claimant in ECA/minors and MC1 aids – again, that was not Ms GG’s understanding nor did she do it – she expected only to order items. It was a wholly reasonable expectation of Dr EE that Business Support services – those who were there to support the 18 operations of the ED – would organise or set up a bespoke workstation for a [MC1] impaired disabled colleague.

[78]On 10 June ATW approved funding for the following items after a remote assessment of the claimant by the [CHARITY NAME]:  Travel to work by taxi.  Electronic glasses (“the glasses”), which project an image onto the lens enabling the wearer to scroll in or out and in different light conditions – the cost was in excess of £8000 and they enabled the claimant to see airways, rashes and injuries but without having to comprise sterility or cross infection – the claimant could remain at some distance and advise on the stiches to be used, for example. These were described by the claimant as truly amazing for this purpose, and for printed documents, but not of use in reading computer screens, because VDU lines obscured his vision.  An electronic desktop magnifier which enabled scans and information to be magnified and on rare occasions, a patient’s hand – this was nearly £2000 and wonderful (when it had been supplied and put to use) in assisting the claimant’s clinical practice - (“the DM”).  A large screen (the screen), a hydraulic arm (“the arm”) and “ZoomText” software which if installed with one of the respondent’s computers, could enable the claimant to enlarge the respondent’s IT applications and view scans, read patient records, type letters, and utilise any other application needed to be operated by a clinician using the respondent’s IT, displaying it on a large screen which could be moved to best suit the claimant and the clinical context. The software converted the mouse, in effect, to a magnifying glass on screen. The cost of these three items together was around £1000.  A training session on ZoomText – around £500.  A white on black, large format keyboard – around £100 - improving the claimant’s ability to see letters on the key board and to type accurately.

[79]This suite of aids were considered by [CHARITY NAME]/ATW - which both the claimant and the respondent’s occupational health considered the gatekeepers or experts – to be necessary to reduce the disadvantages the claimant faced from severe MC1 impairment. There had been input from both theMC1clinic helping him and from the claimant himself, who was the best to know what he could and could not see or do while at work. There was a small employer contribution to be paid and a small contribution from the claimant for the taxi funding. 19

[80]An email was copied to Ms GG the same day – 10 June - and it included that there was no need to purchase from recommended suppliers but that ATW would only reimburse to the level of its quote. 10 June 2022 was four months after the claimant’s return to work and five months from his application to ATW.

[81]Also on 10 June the claimant applied for a “period of grace” from Health Education England, which liased with the respondent and resulted in his registrar contract being in place until 1 November. All qualifying consultants can use up to a six months’ period of grace to remain where they are until they source a consultant’s job. The other two new consultants did not want a period of grace - Dr FF knew that - and as a result they were given the two locum consultant posts and put on the rota as such from around August 2022 without a competitive process, but with occupational health clearance (the latter was Ms JJ’s evidence).

[82]Dr EE encouraged the claimant to speak to, or at least become known to those seeking to appoint to the permanent consultant posts – the Appointment Committee. The claimant sought to meet Mr FF for some advice on 22 June, but he received no reply to his email and was not offered a locum consultant opportunity.

[83]He gently made enquiries about his suite of aids with Ms GG, copied to Dr EE, on 1 July - there was no immediate reply.

[84]Dr EE had put the full list ofMC1aids and suppliers on Ms GG’s desk (with the exception of a supplier for the Desktop Magnifier – DM for which supplier details were omitted by ATW). A supplier for that was identified on 22 July 2022.

[85]Ms GG’s office and those of Ms JJ, Ms II, the consultants and a registrars’ room were all on the third floor on a corridor secured with access fobs. The “shop floor” was how the clinical areas of the ED were described and where consultants and registrars spent the majority of their working time.

[86]On 10 July the equipment procurement was authorised (apart from the DM). The delay between 10 June and ordering included that Ms GG was on holiday when the list was left on her desk and there was no delegation of the role Dr EE had understood she was fulfilling, namely supporting the reasonable adjustments for the claimant. The supplier invoiced provision of training and software on 16 September, saying that delivery had occurred on 14 July – these are not physical items and unlikely to be the subject of production delay – but they require implementation by the customer and the supplier chased the respondent for the claimant’s details in August 2022.

[87]Meanwhile the respondent, including Dr MM, the recruitment lead and Mr FF, had shortlisted the consultant candidates for interview on the basis of their applications supported by references. All three internal candidates were invited to interview in October, which included a 10 minute presentation. Drs KK and LL were by then working as locum consultants. The claimant did 20 some shadow shifts as EPIC and on majors in September, trialling work outside ECA/minors and Dr EE received feedback about that and how the claimant had coped given hisMC1limitations. It was clear colleagues were positive about the claimant as a potential consultant colleague, but had concerns about adaptations to enable him to see ECGs/Blood gases/the board round – one suggested a computer/laptop on wheels “set up for him as visually impaired”. They also recognised the claimant’s value to the consultants’ teaching roles.

[88]The claimant had also applied for a post at [YY]. The consultant body had said earlier in the year - “the South Bank would be keen to have him” - which we understand to be the NHS trust operating [YY]. A consultant questioned whether it would look bad on them if another hospital employed the claimant. That reflected the simple reality that some employers/colleagues might be more willing to accommodate adjustments/risk assessment than others. The claimant was resilient and determined in wanting to achieve a consultant’s post. He also secured an offer from [YY] subject to pre-employment checks, but his first choice was to remain in [XX] because of his family connections and MC3 treatment.

[89]Returning to the ATW aids, the glasses, keyboard, hydraulic arm and a larger 32 inch screen were delivered to the respondent on or around 27/28 September (reconciling pages 844, 922, 1526, 2043, 2046, 2047, 2048, 2723 from the documents before us and considering what is likely in the handling of supplies to a very large hospital). They were initially removed to the offices of Ms II/Ms GG for safekeeping (Ms GG was on unexpected sick leave from 15 August to 6 October 2022). It appears the commissioned ATW recommended 24 inch screen was also delivered sometime between 29 October and 10 January 2023.

[90]By the end of September 2022 the glasses and keyboard had been provided to the claimant by Ms II in Ms GG’s absence, and were in use straight away. The glasses did not help the claimant operate the respondent’s computers because hisMC1was blocked by “vdu” lines – to work with computers the claimant had to hold a manual magnifying glass up to the screen and then manipulate or type on the large keyboard with his other hand. The larger screen and arm remained in Ms II’s office – and nobody had made any arrangements to install the software for the claimant or progress that with him, or, to use Dr EE’s description, set up a bespoke workstation for him to utilise the supplied equipment.

[91]The claimant was also, amongst these events at work, seeing his MP1 and talking to her by telephone to review his MC3 results and discuss MT1 commencement. She wrote to him on 6 October 2022 to confirm those discussions, which resulted in her decision to remove him from the transplant list because of his decision to postpone surgery to commence MT1. She recorded that he had revisited the decision with his family who were supportive, and that he wished any surgery to take place in Leeds. He had multiple reasons to delay surgery for MT2 MT1 (“PD”) including: feeling well - implicitly that a deterioration preventing general anaesthetic was unlikely – 21 the impact of time off work, an emotional (and understandable) fear of surgery given the outcome of his eye surgeries, the stroke risk of surgery, and general worry related to his family experience of MT1. He also wanted to “get the job first” before taking that time off, even when Dr HH told him the minimum time off work could be 5-7 days, rather than a minimum of 2 months. The claimant had previously had an assessment of his home for MT2in 2021 but that had not been conducive, and it had not proceeded then.

[92]On 11 October the claimant made enquiries about the large screen and software - this was the day before his interview for a consultant’s post. Ms II asked him, “is it possible for you to come and meet me”. She was encouraged, entirely reasonably by Dr EE, to see the claimant on the shop floor that day (rather than expect the claimant to pass by her third floor office) but she did not do so and instead the claimant went to see her on the day of his interview - the 12th. They had a pleasant conversation but there was no progress on the outstanding aids, the most important of which was the software, about which Ms II had said she was not sure she was aware.

[93]Despite not having the locum consultant work experience of Drs LL and KK, the claimant was successful at interview, which involved a presentation to the panel, including Mr FF. He and Dr KK were offered the two ED Consultant posts subject to health clearance, references and a number of other matters described as “pre employment checks”. The claimant had been the second highest score at interview - the scores were 51,41, 39 out of 60. The appointable score was 40 and the notes afterwards recorded that it was disappointing to have to tell Dr LL, then working as a locum consultant, that he had been beaten by the claimant. The pre-employment checks were completed for Dr KK in relatively quick time and she took up her post on 4 November 2022. The respondent’s diversity and inclusion manager, who attended the interviews, had been told, presumably by HR or Mr FF, that the claimant had been offered the role subject to a reasonable adjustment assessment.

[94]On 14 October Ms GG congratulated the claimant on his consultant post and said she had chased the software and that a trainer would be in touch shortly. He responded that the licence needed to accommodate download to at least four computers; she went back to the supplier or intermediary - which provided a download link to the claimant on 26 October, but said a dongle version for download to multiple devices would take at least six weeks.

[95]On 18 October the claimant met with Mr FF and the department’s HR partner – Ms Addleshaw – to discuss, in reality, practical arrangements for his consultant’s post. The claimant was concerned about the health checks and whether the offer could be withdrawn and Ms Addleshaw explained the duty to make reasonable adjustments and that matters would be discussed with the claimant. They discussed job planning in some detail and the claimant was clear he was keen to work weekends and fulfil the on call requirement, indicating he would like to stay on site, because that reduced problems if he was called in. The claimant was also transparent about needing four weeks’ 22 absence for surgery in connection with MT1. They discussed admin/secretarial support for the consultants and Mr FF explained that the (20 to 24) consultants shared three secretaries – the claimant was clear he was very slow on computers (this was unsurprising given the method he had to use to engage with them described above) and the possibility of an assistant funded by ATW was discussed as a further possible adjustment.

[96]The MT1 the claimant mentioned in the meeting was the MT2 MT1 discussed with Dr HH– that was to be understood by Mr FF because of his clinical knowledge and the reference to four weeks off work - MT2 MT1 was the preferred treatment of both the claimant and Dr HH. The claimant did not explain to Mr FF or Ms Addleshaw, when he responded to the minutes of the meeting, that he was delaying surgery for MT1 because of his employment situation.

[97]On 21 October Mr FF sought occupational health advice concerning the claimant’s ability to take up the consultant post. This was a detailed referral for advice covering all of the claimant’s health conditions.

[98]By the end of October, the DM had been delivered and was in Ms GG’s/Ms II’s office but again, it was not put to use for the claimant.

[99]The software dongle with up to six licences was given to the claimant on 24 November 2022. It was not possible to install that software on any respondent devices until it had been authorised by IT who had to assist to disable the barriers to installation to permit it. Mr FF had achieved that when he wanted to install some software by a telephone call to IT. When the clamant called IT, he was told he needed Mr FF’s/departmental manager authorisation.

[100]Part of the pre-employment checks involved considering again the claimant’s references. In his reference Dr Stewart had written, “ I recommend a formal report on this - [the claimant’s sickness absence] from occupational health because of significant absence in the last 3 years due to sickness and shielding. I also recommend consideration of the impact of his health conditions on his ability to perform in this role and what adjustments would be indicated”. In answer to:” would you re-employ/offer a further period of study” and “on reading the job description for the position that Joseph is applying for would you consider that Joseph is capable of carrying out this post?”, Dr Stewart had responded “yes”.

[101]Dr EE had also provided a number of references for the claimant and all were overwhelmingly positive – he described the claimant as “a very good senior EM trainee ..he has excellent decision making and consultation skills, is supportive to the medical and nursing staff. His disability means that he cannot independently perform tasks that required detailed vision.. His condition may change over time and require further adaptations”. He also included, “whilst attempting to secure a consultant job, he has somewhat neglected his health, which he cannot do to have longevity and sustainability in his career”. 23

[102]Dr EE had also provided the claimant’s total sickness absence details (having asked for this information) and had answered “yes” to, “would you reemploy/ offer a further period of study”. To the question, “on reading the job description for the position that Joseph is applying for would you consider that Joseph is capable of carrying out this post?” Dr EE had answered, “no”. The form then said, “if unsure or no – please give reasons for your answer” to which Dr EE had written, “Joseph is able to work at consultant level pending amendment to his work schedule” and then set out the hours the claimant was able to work.

[103]On 7 November an occupational health report was provided by Dr OHP – the advice included background, including his encouragement to the claimant to involve the BMA to provide advocacy for him in what was a difficult and stressful time for him and his family. He also advised: The claimant could not sustain the full rota hours, but could work 8am till 4pm or 2pm until 10pm; The claimant would, in practice, delegate in direct clinical care situations where hisMC1posed risk (airway or vein access); The claimant said hisMC1was sufficient to supervise others and lead resus and trauma calls; he was greatly assisted by the specialist glasses; but he needed the software to help with reading screens; Trip and fall risk (to both the claimant others) should be risk assessed (with signpost to the relevant hse guidance); The claimant’s MC2 was well managed; His fatigue (observed by colleagues when the claimant was working outside ECA/minors) would deteriorate until he commenced MT1 or received a MC3 transplant, but he should pace tasks and rest presuming that could be accommodated operationally; Copies of three previous OH reports from 2019, 2021 and 2022 were provided; The claimant reassuringly agreed a risk assessment was appropriate including for the tasks he could safely do – there was a recommendation to seek this from external bodies – the NHS doctor performance body (the PPA) - or the Royal College of Emergency Medicine; Further information was to be given by the claimant’s treating clinicians MP1 and MP2.

[104]Although not sent straight away the claimant’s MP1 provided her advice to Dr OHP quickly, and the ophthalmologist reported in January 2023. Dr HH, the MP1 confirmed the claimant’s preference was MT2 for various reasons, but the longer the delay, the more likely he would need to start MT3.

[105]On 30 November Dr Stewart signed a further contract extension (from the original six months grace period) to “extend current contract for 1 month pending employment checks for substantive consultant post”.

[106]The claimant reasonably expected the required risk/reasonable 24 adjustment assessments to be done and his consultant’s employment confirmed, or not, in that month.

[107]In an update letter dated 8 December Mr FF outlined the next steps and that further delays likely because the PPA would not conduct the required risk assessments. This was a busy time. Junior doctor strikes were being addressed and the department was under strain. Mr FF nevertheless said, “ I will contact RCEM to see if they are able to facilitate an assessment of a set of typical/representative tasks/scenarios in relation to effective, efficient and safe performance in the Emergency Department. This would include the need for a Consultant to determine/assess patient needs first prior to the appropriate and safe delegation of tasks”.

[108]Mr FF had also said a health and safety risk assessment of the physical environment would be undertaken. As to obtaining IT feasibility testing and authorisation for the USB dongle, Mr FF said he would organise that to be looked at.

[109]“Feasibility” meant whether the ZoomText was compatible, and secure and trusted, to be implemented with the respondent’s “Lorenzo” system. Authorisation meant IT had to disable the firewall on each installation to permit that. In saying he would organise for this to be looked at, Mr FF at the time recognised that this would require more than a simple call to IT – otherwise in all likelihood he would have suggested the claimant do that.

[110]On 23 December 2022 the claimant commented on Mr FF’s letter in some detail. He said this in relation to the software: “I have already spoken to IT and confirmed the feasibility but I would prefer a dedicated computer for my use or the software readily available where I am expected to work”.

[111]In this comment the claimant was pointing out the practical reality - Dr FF had an office and computer from which to work - the claimant did not and until he had some device or authorisation to download the software to a particular device in the ED at a particular time – for the firewall to be disabled at the point of download – the software was going to be of no use to him at all, other than at home. He did download it at home some time after 26 October and booked a training session, practising with software for his other passion – music – but that only confirmed its fantastic utility to him, which frustratingly was not able to be deployed by him at work.

[112]The claimant had, on 23 September 2022, contacted ACAS with the support of the BMA because he was concerned about his treatment, including the delays in providing him with reasonable adjustments. A certificate was issued on 4 November 2022. His relationship with Mr FF was under strain by the time of the December exchanges.

[113]It then became clear RCEM were not prepared to assist in the risk assessments and Dr OHP was clear occupational health could not conduct assessments of safe performance of ED tasks. In January Dr OHP 25 recommended one or two independently appointed consultants for the task. Given the delays in organising assessments the claimant’s contract was extended again and he continued to delay surgery for MT1.

[114]On 12 January 2023 Ms II was in touch with the claimant to ask where he would consider his equipment most useful – the arm, the screen and the desktop magnifier were still in her possession and she enquired whether the equipment was intended for office space or clinical space. She did not suggest collection by the claimant – which in any event belies common sense – this was a severely MC1 impaired clinician who was undertaking shifts on the shop floor, – that is where he needed the equipment.

[115]Again Dr EE was copied in when the claimant replied to Ms II asking for support with a tablet, having indicated to Mr FF the need for a computer. Dr EE pressed for the use of “estates” to advice on whether a particular room would work - Room 1a was said to be good for EPIC duties. He asked for testing of the equipment with a laptop to give the claimant a mobile solution because Lorenzo did not work with tablets. That was to happen on Friday when the claimant was in that week. It did not happen, despite Mr FF knowing that the claimant had asked for a dedicated computer or the software where he worked. By this time the claimant was seven months on from the ATW grant and only the glasses and key board were in use (as well as his own purchased equipment).

[116]At a meeting on 26 January 2023 with Ms JJ and HR and the claimant, a further contract extension was agreed to 17 February – given delays in securing the assessments and the claimant’s ophthalmologist's report. A tablet had been discussed for prescribing and the claimant had discussed his IT difficulties with his treating clinicians. Again, there was no focus from management on practically getting the equipment and software that had been bought, into use.

[117]The claimant’s BMA representative was then in touch with the respondent on 10 February 2023 on his behalf. She sought to resolve the delay in his appointment as a consultant, but also to press for the ATW/reasonable adjustments including the screen and magnifier, and a computer for his use with the software.

[118]HR’s response was to believe that equipment needed to be “collected” and that an area needed to be agreed – suggesting matters could quickly be resolved at a meeting. This was wholly at odds with the Tribunal’s industrial experience of how, on the ground in complex workplaces, provision of equipment for MC1 impairment is reasonably addressed.

[119]On 13 February 2023 Ms II wrote this: Hi [first name], I’m on leave for the next few days but a laptop for your to use is on my desk if you would be able to come and collect it. We can help to put the software on the computer too. Also we have the equipment to place in room one in ECA (larger screen and arm). If you could let us know how many licences you have for the software, we may be able [] put one on the desktop in the room in ECA”. 26

[120]This email was a year after the claimant, newly severely MC1 impaired and with MC3 failure, returned to work as a senior registrar, The claimant did go to the third floor offices but could not find anyone at the time to take delivery of the laptop. He had for many months been working eight hour shifts in ECA/minors on the ground floor and likely found it tiring to make that fruitless trip.

[121]On 17 February 2023 a meeting took place by “Teams” between the respondent’s head of workforce, Ms HOW, the claimant’s BMA representative, Mr FF and the claimant. The claimant had also arranged for another consultant from the Disability Staff Network to attend and take notes but the head of workforce, Ms HOW did not permit that. That day was the last of the claimant’s contract extension and the meeting focussed on agreeing ESLE type assessments of the claimant in the various areas of the ED, with a further contract extension to be agreed by email. There was a comment from Ms HOW that the claimant’s references did not necessarily support employment – or words to that effect – which was surprising and unwelcome to the claimant in that meeting.

[122]On 22 February the claimant’s BMA representative was again seeking an urgent meeting to discuss implementation of adjustments with Ms II, and she received again an email saying “we would like to work with the claimant” and that “ideas for placement have been difficult to organise”, which appeared to peddle backwards from Ms II’s indication on 13 February that the equipment would be put in room 1, which was not so very different from Dr EE’s suggested location a month before.

[123]On 2 March 2023 the claimant heard that occupational health had confirmed he was fit for work with adjustments in the [YY] post and he was in a position to agree a start date and did so for 1 April 2023.

[124]The claimant and Mr FF were then in further correspondence about the dates for the assessments and how they would be conducted and by whom.

[125]On 10 March 2023 the claimant wrote to Dr EE: “I have had to alter my treatment plans on several occasions due to the employment situation with the Trust. I can no longer proceed with those plans in my current status of temporary employment. I have agreed to have surgery on the 20th March in order to facilitate [MT3]. This was not my first choice but needs must.”

[126]The claimant met Ms II in the week commencing 6 March and asked for the software to be installed on a computer in a dedicated place with the DM/magnifier. She again said they could install the software, because the claimant raised the problem of authorisation. The claimant said to her, however, that his time at the respondent could be coming to an end.

[127]The following week Ms II emailed the claimant with further suggestions for placement and saying she was waiting for an extra desk for the DM and was meeting IT the next day. For scheduling reasons the claimant knew his last 27 day at the respondent would be 17 March and he was also unwell - he did not reply to that email.

[128]The claimant received a schedule for the assessments from Ms JJ on 16 March suggesting another contract extension and he agreed, ultimately, to the first of the assessments before his MT3 surgery on 20 March, and that his employment would then end on 31 March with an extension to that date only. They met on the shop floor and the claimant told Ms JJ he had been postponing surgery for several months to accommodate the assessments. Ms JJ documented that discussion in a letter to the claimant about the arrangements.

[129]Ms II then arranged the DM to be in Room 9 plugged in on 16 March and she emailed the claimant to that effect. She also asked about collecting the software and repeated this on the 17th, but the claimant considered she had access to the software from the previous provision by the supplier and in any event the 17th was his last day with the respondent during which he was completing two ESLEs on his eight hour shift.

[130]The claimant then had his MT3 surgery and moved home to take up his post in YY from 1 April. The remaining assessment dates and arrangements were then clarified in correspondence with Ms JJ.

[131]It is convenient to pause in the chronology and address the claimant’s auxiliary aid case, subject to limitation.

[132]The effect of Ms II’s oral evidence was that we can safely conclude: the steps which she took in February and March of 2023 to establish with estates and IT where and how the claimant’s aids could be implemented and to offer to install the software for him - could reasonably, have been done much earlier. In our judgment those steps are what the first and third requirements envisage and what “provision” in a workplace means. The provision of the full suite of aids could have been organised no later than early November 2022, by which time all equipment had been delivered to the respondent.

[133]In all the circumstances of this case recorded above, and deploying the Tribunal’s industrial knowledge of reasonable responses to severe MC1 impairment, we have concluded that the month or so from ATW approval to placing the orders (and discovering there was no recommended supplier for the Magnifier), was further unreasonable delay.

[134]Had the items been ordered promptly - within days of the approval - they would, on the balance of probabilities, have been with the respondent sooner and the practical involvement of IT and estates to deliver the suite of equipment to the claimant could and should have been done, at the latest, by early October. This is not a case where the respondent did an act inconsistent with providing the aids, it simply did not take the necessary steps to provide them in a reasonable time frame. The necessary steps were not simply ordering equipment. They included (apart from the glasses) installing that 28 equipment on the shop floor to be available for the claimant’s use.

[135]The circumstances include the efforts made by the claimant to highlight the need for equipment in January 2022 and subsequently, his own efforts, the very specialist ([charity name]) nature of the recommendations, that there was no need to order from a recommended supplier, the lack of dignity and utility inflicted on the claimant, a courageous person struggling with severe MC1 loss, when that could have been alleviated much sooner. It includes the respondent’s knowledge that he sought a consultant’s appointment and he and the respondent would be best served by him having the greatest opportunity to adapt and develop his clinical practice with the specialist aids in place.

[136]Our conclusion on when the respondent ought reasonably to have had to have provided the complete suite of [charity name] recommended aids to the claimant, was by no later than 10 October 2022, which was four months from grant by ATW. By that time only the glasses, the training and the keyboard had been provided.

[137]The respondent submitted that the disadvantages the claimant was at in his ST6 role – were not substantial, because the claimant could work at his own pace, and the role requirements were adapted in that the claimant was able to work only in ECA, and he was not subject to capability proceedings or disciplined. There were also particular points made about particular equipment.

[138]Ms JJ was taken to issue 5 in the list of issues, where the question of substantial disadvantage/PCPs were pointed out to her. She was then asked “would you accept it was more difficult due to MC1 impairment for the claimant to.....and then each of the following:138.1 Meeting the requirements of the role of Specialty Doctor and/or ED Consultant was more difficult due to his severe MC1 impairment.

138.2 The time taken to perform tasks of a Speciality Doctor and/or an ED Consultant was increased, including reading notes, processing written information, and reviewing records and scans, due to his severe MC1 impairment.

138.3 When performing his role and/or the assessments, the Claimant had greater difficulty using the Respondent’s resources, especially IT systems (IT software, screen size and screen resolution).

138.4 Meeting the requirements of the assessments was more difficult due to his severe MC1 impairment, and the Claimant was scrutinised for difficulties he encountered.

[139]Ms JJ replied “yes” to each of them. To the extent Ms JJ’s evidence did not amount to acceptance that the claimant was put at the above substantial 29 disadvantages from the two conceded PCPs (which we consider is the fair conclusion from her evidence), the courageous submissions on behalf of the respondent do not persuade.

[140]The claimant is a deeply committed clinician who takes great pride in his work helping colleagues and patients; being slow in front of others - both patients and colleagues – and asking others to perform tasks for him, or being seen to apply a magnifying glass to a computer or other screen, and typing with one hand, was frustrating, humiliating and embarrassing - he has plainly established substantial disadvantage.

[141]Further the PCPs have to be read as referring to the requirements or tasks of the ED Consultant during the assessments, because that is the only time he was required to meet those requirements or tasks – but that is self evidently the limit of them. The Tribunal adopts his illustration – it was like asking an amputee to run a race without an artificial limb.

[142]There were practical examples of the “needs must” work arounds the claimant deployed to try and combat his disadvantages – but they were no substitute for the recommended aids, even if, at times, the work arounds delivered some benefit. An example relied upon by the respondent was the claimant’s method to examine ECGs - described above (a handheld magnifying glass with his up close glasses) - that is not to say that absent the magnifier he was not at disadvantage – it is simply that he developed a way of coping in the meantime, which delivered some benefit in that it was a mobile solution. As to the utility of and need for the desktop magnifier, it is instructive that the magnifier was taken to [YY] by a colleague very soon after the claimant’s appointment, because it was a wonderful help to him. The monitor and arm were not taken at that time - [YY] had provided a computer on wheels straight away, with the magnifying software and suitably sized screen.

[143]In all the circumstances above, the duty to provide auxiliary aids/make the adjustment of providing auxiliary aids in his ST6 role arose from the claimant’s return to work (OH could have asked the claimant’s treating clinicians/the eye clinic for recommendations for some specialist equipment and/or management could have responded to the suggestions at the time); it was reasonable for the respondent to have to provide the full [charity name] suite as pleaded, for all the reasons above, by early October 2022; it did not do so; this complaint would succeed subject to limitation. The assessments

[144]The two hour ESLEs took place commencing on 17 March. Ms JJ in consultation with Mr FF and others, had set the terms of reference/conclusions to be given by each consultant as folllows: These assessments are assessing [Dr AA’s] ability to work on the shop floor and so will focus on the “clinical experience” section of the job description previously sent. Please let me know if you need a copy of this sending again. 30 The post requirement is for the successful applicant to provide all clinical duties expected of any major trauma centre Emergency Department and what adjustments would facilitate this. The clinical requirements are: 1 Clinical training and experience equivalent to that required for gaining CCST/CCT in Emergency Medicine. 2 Ability to offer expert clinical opinion on a range of problems within the speciality. 3 Ability to take full and independent responsibility for the clinical care of patients. 4. ATLS/ETC + ALS + EPALS/APLS provider To achieve these assessments, I would be grateful if an ESLE type assessments (~2hours in duration) could be undertaken. The timetable below covers these areas. The outcome of these assessments would be a 1 or 2-part statement. ‘ In my opinion Dr [AA] can/cannot work as a consultant in <area> independently.’ assessing the claimant as: In my opinion Dr [AA] can/cannot work as a consultant in [area] independently; and “If not, I believe the following adjustments would allow Dr [AA] to work independently:...”..

[145]Each assessment was an observation of Dr [AA] during two hours of practice on shift in each area. The assessments took place as follows: ECA and Resus (17 March 2023), EPIC and in IA/RAT (29 May 2023), Majors/Paeds/ECA EPIC (5 June 2023) and in Advanced Life Support on 28 June 2023.

[146]The ESLEs were generally very positive about the claimant’s clinical knowledge, and diagnostic and patient skills, and taken as a whole would reasonably be understood as a recommendation from the clinicians conducting them to confirm his appointment, and to put in place adjustments including in relation to the areas in which he could work. Ms JJ did not arrange any meeting to discuss them with the clinicians or take any clinical advice about them; nor did she ask Dr EE about his reference.

[147]Although the consultants had not been asked directly to address the question of safety and risk management, either for the patients or colleagues or their registrations, two of them expressed having no concerns for patient safety and Dr MM identified that lack of IT accessibility could cause an issue of patient safety.

[148]Dr DD considered the claimant could practice independently in ECA and gave a ringing endorsement of his skills observed in that area as well as his teaching/coaching/pastoral care for junior doctors. Dr DD indicated that specialist input should be sourced to ensure the latest developments (implicitly in MC1aids) were considered as part of the assessment. The claimant had use of the glasses, the keyboard and the DM, newly provided the day before, but not the software. 31

[149]Dr PQ described things that went well and things that went less well in the resus assessment on 17 March. The positive feedback was an endorsement of the claimant who he recognised was operating in an unfamiliar area. He concluded that the claimant could not practice solo and emergently to carry out : difficult IV access, emergency airway intervention, chest procedures, other highly technical skills in rapid fashion, and rapid specialist referrals on the online systems. The claimant’s knowledge and work ethic were highly commended, but there was reliance on colleagues to read screens in a time critical environment - a senior registrar had mis read a defibrillator rhythm (albeit the treatment pathway for the patient was the same), Dr PQ did step in to correct the misread. It was a concern that because of his impairment, the claimant was reliant on a senior registrar colleague’s read/misread. Again the claimant had the glasses, keyboard and the DM, but not the software. He had also not practised in resus for over three years. He learned from the defibrillator read issue as follows: best practice is for the directing clinician to stand at the end of the patient’s bed which is where he stood; he has now amended that practice (given his MC1 impairment) to stand nearer to the wave form monitor to observe the readings.

[150]On 23 May 2023, a few days before the second set on 29 May, Ms JJ emailed the claimant with the timetable which she had been seeking to arrange and asking the claimant, in the middle of a lengthy email, whether he needed any specific support with equipment or access to any systems that she could help with. The claimant did not reply that day to that email because he was undergoing MT1 - and travelling to [XX] to do so, which took 11 hours x 3 per week – and was very fatiguing. On 24 May the claimant simply replied to say he would be there on 29 May.

[151]Dr RR (ESLE of EPIC role) on 29 May concluded that no issues were identified to suggest the claimant was unable to work as the EPIC and he made recommendations for adjustments, including lighting, and clearing up clutter which posed risk for both impaired and impaired people. He also commented that the claimant had not had the benefit of the correct software or screen, and a computer on wheels would have assisted him because he noted that on the majors board round the claimant asked for assistance with colleagues calling out names from the screen.

[152]Dr SS (IA/RAT) on 29 May identified IT as a major issue in this assessment and did not feel the claimant performed at consultant level on this observation, because of efficiency/pace of patients seen, while the claimant’s communication and manner was exemplary with a particular patient, and Dr SS had no concerns for the safety of patients being cared for by the claimant during the observation.

[153]The same day the claimant wrote to Ms JJ to say he would need the software installed for the remaining assessments and suggested a computer on wheels – which he had in operation at [YY]. Ms JJ was on holiday and she asked Ms II as a favour to identify a COW or Computer on Wheels for the claimant to use “for his remaining assessments” and if there were any issues 32 to contact the claimant directly. She also asked her to “install the software below on it please” - likely she forwarded a download link or other information. Ms II’s oral evidence on this was an example of memory being unreliable – she was asked if she knew he was on his third set of assessments at the time of this email and she said “no”, whereas the implication from the email is that she did have knowledge of the assessments – albeit there may have been a distinction to be drawn between “third set” and “remaining”.

[154]Ms II supplied a 13 or 15 inch laptop on wheels, with the software installed, for the fifth assessment with Dr MM (majors) on 5 June 2023. Dr MM observed that the laptop was too small, and that the overall process was truly quite uncomfortable for the claimant with inadequate equipment and he noted the embarrassment for the claimant of using a magnifying lens in a public area. He concluded that the claimant could not, because of his limitations and the nature of the majors physical environment, fulfil all aspects of a consultant in that area, and that the number of patients seen was not sufficient to assess opportunities for leadership, resus skills or advisory work. He considered the claimant “has the clinical knowledge and reasoning at [consultant] level. He considered the environment was not suitable for someone who has difficulty with his or her vision, but he recommended that with appropriate adjustments to environment and IT, the claimant would be able to show leadership and offer advice, including if the environment was more predictable, such as a fixed room.

[155]Dr TT’s assessment in Paediatrics on 5 June was inconclusive, because of the limits of the two patients seen on that occasion – effectively there was insufficient evidence. He recorded he had no concerns regarding patient safety but noted considerable inefficiencies in operating the departmental IT (two screens) including the size of magnification required. It is apparent the claimant did not have or use the specialist software for this assessment.

[156]The claimant also undertook an assessment as EPIC in ECA on 5 June on an extremely busy day in the department. Dr UU said” in my observation.. It became clear that he has become expert in working to consultant level in adaptation to his disability...listening skills on a par if not better than his consultant peers....expert at drawing out thoughts and diagnostic reasoning...efficient in doing so..working in the Emergency Department a consultant would never be working alone .can provide consultant level care in the area in which he was observed. He also noted that the claimant had not had the benefit of visual aid devices for x-ray or ECG and it would be reasonable for him to be supported in the provision of a suitable work area – in his view that was better addressed by the claimant with third sector specialists and Occupational Health.

[157]That assessment was consistent with the claimant’s experience when in charge – no heart attacks or cardiac arrests were missed because he was checking the position clinically as was expected.

[158]On 28 June 2023 the resus manager carried out an ALS (advanced life support) assessment with the claimant. His assessment was that the claimant 33 was a little rusty but covered all the appropriate management points. He made the point that in practice the readings on the waveforms on the defibrillators could not be magnified, but for the purpose of the simulations/scenarios the rhythms were printed to be large enough to see.

[159]All the assessor feedback was sent to Ms JJ soon after each one and she in turn provided them to HR. On 26 June she prompted the claimant for his self reflections so that the process could be done by the end of the month - his response was to indicate that Monday (3 July) was more likely given he wished to speak to the BMA and did not understand why the feedback from the consultants could not be provided to him first. That would have been helpful to him to reflect specifically in the knowledge of his colleagues’ approaches in the different areas and to provide solutions, such as the one above.

[160]Ms JJ was firm about that not being her way forward (she did not take any clinical soundings from the assessors about that or about the decision on the claimant’s employment). Ms JJ also sought to meet with Ms HRBP, and Ms HOW, to discuss the decision concerning the claimant the following week.

[161]The claimant provided his self reflections on 3 July, which broadly aligned with those from the consultants assessing him, although he observed at the conclusion: “In summary I wish to state I do not enjoy ESLE’s in HUTH and feel the assessments were unfair to me even though I understand the reasons proposed for their design. I feel I am quite capable of these tasks if the appropriate adjustments are made available. In many assessments this was not the case.”

[162]On 4 July Ms JJ produced a first version (2068) of a seven page paper for the chair of the appointment panel with her thinking and recommendations for the claimant’s offer of employment. It ended with the history of the ACAS complaint by the claimant under a heading: his “relationship with senior team plus police enquiry” and the conclusion “I would not recommend [the claimant’s] appointment as an ED Consultant in HUTH as I do not believe he can undertake the score of the role, and restricting the scope of the [sic] to his areas of expertise would be to his detriment and to the detriment of the department”.

[163]That heading about the claimant’s relationship with the senor team reflected the claimant’s raising of concerns including about Mr FF brushing past him on the stairs and him losing his balance in September 2022. The head of workforce, had advised the chief medical officer: “if the claimant is concerned for his safety as he states... an allegation and concern of this seriousness should be referred to the Police....if you are in agreement I will help you draft a reply to [the claimant] signposting him to the Police”. A letter was duly sent to the claimant and he did then report the matter to the Police. We include these findings because without them it is not possible to understand their inclusion in Ms JJ’s reports.

[164]The second version, after the meeting with HR colleagues (13 July) and 34 final version (14 July), moved the section on the claimant’s complaint to ACAS to the beginning of the report and the conclusion at the end was amended to: I would not recommend the Trust to pursue [the claimant’s] appointment as an ED Consultant in HUTH as I do not believe he can undertake the scope of the role (even with those reasonable adjustments which can be accommodated). Restricting the scope of the role to his areas of expertise would be to his detriment and to the detriment of the Department and the wider Trust.

[165]The considered seven page paper included:165.1 The reason for a specific assessment process for the claimant following his offer – that he had not worked in all areas of the ED in the last 3 years due to health reasons;

165.2 The claimant’s need for reasonable adjustments, saying the claimant had, “a package of support and equipment agreed by Access to Work, which was ordered and put in place by the HUTH operational management team in discussion with [the claimant]”

165.3 The assessment methodology and terms of reference above;

165.4 The reasons for Ms JJ taking over responsibility for assessment and decision making: junior doctor industrial action/relationship breakdown;

165.5 Ms JJ’s observations of the claimant’s “engagement in process”, attaching emails which indicated the claimant believed he had cause for complaint, had consulted the BMA, and that she was expecting “a more engaged, more motivated, more willing colleague to work with. He has demonstrated a passive, sometimes passive-aggressive attitude, to this process which is in his interests to complete quickly and robustly. For me this reflects poorly on [the claimant] as a prospective Consultant and does not display the leadership skills or personal quality of taking responsibility for his actions that can reasonably be expected of a Consultant.”

165.6 the time taken for Ms JJ in organising and continuing the assessments;

165.7 the nature of the claimant’s disability/medical conditions: MC2, MC3, and describing the claimant in a way which lessened the severity of his [“MC1]”.

[166]Pausing there, it is apparent from the report that Ms JJ’s conclusions about the implementation of the [charity name] recommended equipment are wrong; she inaccurately describes the claimant’s MC1; and she seeks to blame him for a failure to engage in relation to the provision of the equipment, and the assessments, which is wholly unfair in all the circumstances and in light of our findings and conclusions above and in the context of his circumstances at the time.

[167]She goes on to conclude, in summary:167.1 That the assessments have shown there is an unacceptable level of risk to patients and the claimant’s and colleagues’ registrations if mistakes are made (in this she relied on the claimant not seeing an IV line and the read issue which both arose in resus); and 35

167.2 It was not reasonable or sustainable for the claimant’s colleagues to cover the most unwell patients with the claimant only able to work in one of the five ED areas because he could not could not independently practice as a consultant in resus, majors, RAT/IA, or paediatrics.

167.3 Some recommended adjustments are not able to be accommodated at all times (for example greater lighting when the patient need is for dimmed lighting). The withdrawal of the offer

[168]Ms JJ was sent copies of the claimant’s references at lunchtime on 13 July. She then wrote two draft letters, one to the claimant and the other to the Chair of the appointment committee.

[169]She referred in her draft letters to the “pre-employment checks having determined the Trust could not progress to offer” the claimant employment in the consultant’s post (notwithstanding it had offered employment in October). Her draft letter to the claimant enclosed the references, and she described Dr EE’s reference - as saying the claimant would not be a suitable candidate on the advertised job description and, “both of which [references] flag up your sickness record”. She went on to refer to the additional assessments to safely undertake the full job description (the question she had asked in the assessments was “independently” - not “safely”). She confirmed it was on the basis of the references and assessment that the offer was, in effect, withdrawn. There was no right of appeal.

[170]Her draft letter to the chair of the appointments committee proposed to enclose her full report. Her letter to the claimant did not.

[171]After further HR/policy advice to confirm that Ms JJ acted in accordance with the respondent’s policies, she confirmed her settled view on 14 July and the letter drafted on 13 July was sent to the claimant without change. At the same time the final letter was sent to the Chair of the Appointment Committee with version 3 of the report.

[172]Ms JJ’s thought process in deciding to withdraw the offer included an unfortunate misreading of Dr EE’s reference – which had been a theme since first mentioned to the claimant and his BMA representative in February. It was plain Dr EE meant the claimant could not fulfil the full job description because of his hours/shifts limitations. Dr EE had detailed knowledge of the claimant’s practical arrangements at that time and he helpfully included it in this reference.

[173]The claimant wrote to Ms JJ on 7 August 2023 acknowledging her letter of 14 July and asking about an appeal. On 10 August Ms JJ confirmed there was no appeal process. The claimant’s role at [YY] 36

[174]The adjustments that were/are in place for the claimant in his role at [YY] and the reasons for those adjustments include: avoid working in resus (MC1); colleague back up and support as needed (MC1); work in lower risk areas/lower risk tasks with risk assessment in place (MC1/MC2 and MC3); avoid night shifts and on call and have regular meal breaks (MC2); a maximum 20 hour week and 10 hour days; dynamic risk assessment, flexibility to attend medical appointments and work within own limits. In addition the DM was taken over to [YY] for him by a [XX] colleague, the software was installed by [YY] on day 2 and a computer on wheels with 24 inch screen was provided in order that he could have the software access wherever he was required to work.

[175]In his role at [YY] the claimant advises, examines and treats patients on the shop floor, doing the consultant role in [YY], outside of Resus. He advises colleagues rather than hands on treat himself, mostly seeing patients with a junior doctor - “that is what all consultants do” was Dr BB’s evidence; the claimant is “never on his own” in the sense of consultant cover. The claimant is very much part of the rota; he is not supernumerary. He is regarded as highly skilled and very knowledgeable by his colleagues, as he was at XX; Dr CC’s assessment was that he was safe to work in all areas of [YY] other than resus.

[176]The claimant presented his claim to the Tribunal on 13 October 2023. Conclusion on the second Section 15 allegation – the withdrawal

[177]The claimant’s note on limitation proceeded on the basis of the claimant’s witness statement, which said he received the withdrawal letter from Ms JJ on 13 July 2023. That was clearly an error. In our judgment, drawing on the pure waters of the statute, the period of three months starting with the date of the act to which the complaint relates ends on 13 October 2023, the date when the claim was submitted. The date of the act is the sending of the withdrawal – 14 July 2023.The allegation was presented in time.

[178]If we are wrong in that conclusion and we have to decide the date of the act to which the complaint relates based on the date Ms JJ decided to withdraw, then again, it is 14 July. She had, vocalised her provisional views in the first draft of the report some 10 days previously, but this was a considerable decision on which she wished to have considered advice from HR and she took the time to have that. Until it was sent, she could have stepped back from that withdrawal, and confirmed an unconditional appointment with adjustments, but on 14 July she reached the final, settled decision to withdraw.

[179]If we are wrong in that conclusion, then it is in the interests of justice to increase the Section 123(1)(a) time limit to three months plus a day. The prejudice of losing the opportunity to have this complaint determined in circumstances where the claimant did not know of a decision adverse to him 37 until 14 July is overwhelming, when weighed against the prejudice to the respondent in losing a limitation defence in such circumstances. Solicitors acting in such a complaint are never to know when someone “decides” on a course of action adverse to a client, they only know the limit of their client’s knowledge, and they knew at the time the letter was received on 14 July.

[180]As to the merits of the allegation, taking the structured approach:180.1 Whilst it appears from Ms JJ’s report criticising the claimant for matters which were not linked to his MC1, it is clear the withdrawal was considerably influenced by the claimant’s difficulties with his vision, and the consequent assessments that he was unable to work independently in four of the five ED areas; these matters were “a reason why”.

180.2 It was admitted that the withdrawal was unfavourable treatment – it was something about which the claimant could, reasonably, complain in light of all the circumstances we describe above, but particularly his family’s his employment in [XX] since 2016, and his desire to stay in [XX] in circumstances where he was managing severe MC1 impairment.

180.3 The respondent had the legitimate aims of patient safety, and care for the professional registrations of its clinicians including the claimant’s registration.

180.4 Was withdrawal of the offer a proportionate means of achieving those legitimate aims? Was it appropriate and reasonably necessary, balancing the reasonable needs of the respondent and the discriminatory effect on the claimant?

[181]The discriminatory effect on the claimant was considerable - he was unable to secure the appointment for which he had been successful at interview, ostensibly because of a severe MC1 impairment caused during surgery to improve his MC1 under the respondent’s care.

[182]The respondent’s paramount need was to keep patients safe and to ensure all clinicians’ registrations were not put at risk by unsafe practice or restricted practice. Was it appropriate and reasonably necessary to withdraw from appointing the claimant to the consultant’s post because of his MC1difficulties and their impact on the shop floor, as a means of achieving those needs?

[183]What is appropriate and reasonably necessary is a judgment. It takes into account all the circumstances which appear to the Tribunal to be relevant, and it follows that Tribunals may reach a different judgment to those who make decisions on the ground.

[184]Less discriminatory means are part of that consideration, but the claimant’s case as put to the respondent’s witnesses, was only that the respondent failed to provide the [charity name] equipment. That being a conclusion with which we have agreed, we take into account, that as at July 2023 the respondent could not “rewrite the past”, but it continued to have a 38 need for consultant cover. Against that background our unanimous conclusion, drawing on all our industrial experience, is that it was not appropriate and reasonably necessary to withdraw the offer. The following factors have played their part:184.1 The claimant had completed his consultant training and was certified as such.

184.2 He had competitively been judged second in a competition to appoint to the post – notwithstanding he had been working mostly in ECA since return to work, apart from four or five other days, and that was known.

184.3 He was not given an opportunity to be appointed to the locum posts which at the very least would have brought forward the occupational health/risk assessment process across the whole department.

184.4 That may well have resulted in the necessary focus on the claimant’s equipment occurring much earlier.

184.5 Occupational health recommended risk assessment, the claimant was initially told there was a need for “reasonable adjustment” assessment, and an “independently practice” (rather than safely practice) assessment was not universally considered necessary, given that consultants are never (with limited weekend/on call exceptions) the sole consultant.

184.6 The claimant was assessed to be able to independently act as consultant in ECA and as EPIC and as ECA EPIC over three assessments (the respondent pleaded that the claimant could not act as EPIC).

184.7 Assessment was delayed from November to March through no fault of the claimant’s, or the respondent’s, but it was to his prejudice in that his life and career was unsettled at a time when his health was also under challenge;

184.8 The respondent (and Dr LL) were less prejudiced because the role was covered, and Dr LL was being paid and fulfilling the duties as a consultant;

184.9 The April to June delay was because the claimant had taken up the [YY] post, diary coordination was then much more complex, but taking up the post was because [YY] had cleared him for work first and he reasonably wanted to start work in the consultant’s post;

184.10 The assessments included that of Dr RR, who assessed the claimant in glowing terms as EPIC and recorded that there were no situational awareness issues during the EPIC shift around the whole department. Dr RR’s assessment included the diversity of patients and conditions in relation to which the claimant was safely in charge of the whole department and accountable during that two hour observation.

184.11 In the four areas where he was not so assessed, many, but not all, of the difficulties arising were from interaction with IT, and he had not had the necessary suite of [CHARITY NAME] measures in place at the time to enable him to interact to the best of his ability.

184.12 When the claimant identified the assessments as unfair and that his equipment had not been in place, there was no pause for 39 reflection on the impact of the same and what the position would have been if there had been timely provision in 2022.

184.13 Instead the claimant was unfairly criticised for that view, and for “not engaging”, notwithstanding he had done so, was very highly regarded as a colleague and clinician, and was going through very difficult circumstances, which we need not repeat.

184.14 For those observations which did indicate potential future risk to patients (and therefore to the claimant’s and others’ registrations) - situational awareness of IV line/read error - there was no discussion with clinicians about the management of such risk, such as the adaptations the claimant had clearly successfully made to his ECA practice where he knew the layout, and that which he had since made in relation to waveform monitor reads.

184.15 There was no assessment of the claimant’s MC1/patient safety risk by review of the “Datix” reports since return to work (which in all likelihood would not have presented incidents).

184.16 As to risk to registration from practice being limited within the ED to particular areas, that was not been discussed with clinicians or faculty or the GMC or RCEM to confirm whether there was such a risk in all the circumstances.

184.17 That was surprising because restrictions in area of practice were in place for at least one other ED consultant (paediatrics for three years), and had been done in the past for another; and consultants agreed amongst themselves in discussion their work allocation. The risk to registration from restricted practice was not investigated.

184.18 The claimant accepted an inability to perform the technical and hands on fine tasks/procedures required for critically ill patients in resus and paediatrics, and Dr MM’s view was that majors in [XX] was not a suitable (and we understand safe) place for the claimant to work; Ms JJ’s belief was that the claimant should not work in majors or RAT, with the result that the claimant would not be allocated to work there if appointed.

184.19 That being the case, there was no consultation with those consultants undertaking the assessments, or the wider consultant body, as to their appetite for a colleague whose contribution to the department as a consultant would be bespoke as a result of his vision. The overarching impression from the assessments, and from Drs EE and Dr DD and from the claimant’s current colleagues at [YY], was that they would have made a very different judgment to that of Ms JJ on both patient safety risk, registration risk, and ability to contribute as an ED consultant with adjustments. That was consistent with the claimant’s case that he could do most, but not all tasks.

184.20 We weigh in our consideration that [XX] is a major trauma centre (with all that entails including multi body trauma patients being taken there), but it is very unusual in a Section 15 case to have the colleagues who have worked/work alongside the disabled colleague 40 explaining with such care why they disagree with a judgment about that colleague which, ultimately, involves the risk/work burden they share. The tenor of some of the evidence was that in [XX], the larger hospital, the claimant would always have two or three consultants around him, because that is the nature of a larger city centre trauma centre. Risk management being eased by greater resources strikes the Tribunal as likely.

184.21 The respondent’s reasonable need is for sufficient consultant cover. One way in which that was challenged by the claimant’s MC1was this: if a clinician is struggling with particular life saving or other hands on tasks/treatment (but not all), the claimant can direct, but cannot step in. If “stepping in” to perform the task is required, the other consultant on shift must be called upon. Three other consultants (out of 24) were also not able to be a “sole” consultant on shift, ruling out night on call and/some weekend hours. Adding a further consultant to a pool which was already limited in this way was, in Ms JJ’s judgment, not, though, an insurmountable problem - had it only been that the claimant could not be a sole consultant and his hours/shifts had to be limited, that could have been accommodated.

[185]In conclusion, in all the circumstances of this case the withdrawal of the offer to the claimant was not a proportionate means of achieving the respondent’s legitimate aims. The claim succeeds.

[186]The counterfactual assessment of what would have happened, but for the contravention we have found above, may be a matter for remedy (or may not), depending on the matters pursued. An assessment of the likely events had the offer not been withdrawn may be required: would there then have been a resignation from [YY], what would job plan discussions have yielded, what DCC/OPA/reasonable adjustments would have been agreed and so on. Conclusions on the first Section 15 allegation, subject to limitation

[187]The first section 15 allegation is that it was unfavourable treatment to carry out the assessments without the software in that: The Software was not available for the Claimant’s assessments on 17 March 2023 and 29 May 2023; The Software was not available on a suitable screen for the Claimant’s assessments; and/or The Monitor was not available for the Claimant’s assessments at all

[188]In agreeing the Section 15 unfavourable treatment relied upon in the list of issues, the claimant did not pursue the pleaded allegation that it was unfavourable treatment to require him to undergo assessments [at all] despite having worked for the respondent for 8 years, and being included in the specialist register. 41

[189]In submissions it was suggested that to be assessed (artificially) as capable of acting independently in areas within which he did not practice, such as resus and paediatrics, was also unfavourable treatment, but this was not put to the respondents’ witnesses.

[190]The narrowing of the claimant’s case in the list of issues is consistent with the claimant’s evidence in cross examination in which he accepted Occupational Health had recommended a safety assessment; he agreed to the assessments; and they were appropriate to be undertaken by any colleagues other than the three colleagues about whom he had complained. In those circumstances it would be unjust for the Tribunal to decide an allegation on which the claimant did not rely at the start of the hearing. The delay in the assessments and the nature of the assessments them, are however, relevant to our decision about withdrawal.

[191]Returning to the assessment allegation as pursued, the facts are made out – there was no provision of the software until it was made available on a laptop that was too small for the assessments on 5 June. There was no large monitor available to the claimant in conjunction with the software. It is no answer, in the context of three two hour assessments in one day to say the claimant had access to the respondent’s large screens in the department – there was simply no time for the claimant to switch equipment himself in such a way. We must repeat the reasons for our auxiliary aid conclusions subject to limitation. [CHARITY NAME], the specialists, had recommended a suite of bespoke equipment for a complex role in a complex workplace – the suite was not provided, when it was reasonable for it to have been provided, including during the March assessments while the claimant was in his ST6 role.

[192]During the first two hour assessment in ECA, where the claimant had been working as a senior registrar with MC1 impairment for more than six months, and when he had the magnifier and his glasses, IT challenges did not present. Such challenges did arise, in terms of rapid online referrals the same day in resus, and in all but one subsequent assessment. There was a communication with the claimant to seek to settle the equipment issue immediately before the March assessments, and with application then, the software could have been installed on a computer to be used in resus. He can reasonably complain that it was not – an email search by Ms II would have provided her with access to the software key – as the claimant put it – as was done for 5 June. There was unfavourable treatment.

[193]Nevertheless, we agree with the respondent’s submission about this claim: even if the failure to provide these items was unfavourable treatment, it was not because of the respondent’s concerns about the claimant’s vision, or because of his need for those adjustments, or because of the requirement to undertake assessments.

[194]The circumstances or context for the equipment being unavailable include in our judgment, the previous history of failing to provide the equipment, the change in the claimant’s circumstances – he had left his substantive role as 42 an ST6 and most of his equipment had transferred with him; enquiries were made late in the day for equipment provision for the May assessments but the claimant was in no position at that time to give the request from Ms JJ his attention; he asked for software for the 5th of June and that was all that was provided.

[195]Context is not the same as reason why. Of all these matters, the reasons why the equipment was not provided were the history of previous failings and the claimant leaving his substantive post. The installation which looked as if it might have happened in March was not then carried through, and the equipment mostly transferred to the new employer.

[196]In summary, Ms JJ did not decide upon the assessments taking place without equipment; that was the case, but this was not unfavourable treatment because of any of the pleaded reasons in all the circumstances. This complaint fails. Conclusions on limitation in the auxilliary aid/reasonable adjustments claim

[197]We repeat the plain words of the Section 123: (3) For the purposes of this section— ------------------------------- (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—(a) when P does an act inconsistent with doing it, or

(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[198]The facts found are clear that in 2022 there was no decision not to obtain and set up the claimant’s [CHARITY NAME] equipment, nor did anyone do acts inconsistent with that, they just did very little to act in a timely way. Similarly Ms JJ’s decision to withdraw the offer and/or not allow an appeal on 10 August are not act inconsistent with the provision of the aids – it is plain in her paper that her position was, the aids had been provided. Despite novel submissions on behalf of the claimant on the facts and conclusions we have reached, this is a Section 123(4)(b) case and we have determined the date from which the Section 123(1) time limit is to be calculated: 10 October 2022.

[199]By that time the claimant was aware of the delays and he already had an ACAS certificate (23 September to 4 November 2022). The claimant had the benefit of either the stop the clock provisions or the one month extension – in this case the stop the clock extension was longer. The section 123 (1) (a) time limit, plus the stop the clock provision, expired on or around 20 February 2023. The claim was presented on 13 October 2023 a week under eight months outside the Section 123(1)(a) provision.

[200]We must also confirm that in light of the way we have determined the Section 15 case, allegation 2), and because the claimant did not assert that the Section 39 (5)/Section 20/21 contraventions arose freshly and separately 43 in the claimant’s employment as a locum ST6 for the assessments in May and June 2023, we do not find discriminatory conduct extending over a period. We mean no criticism in that – these are somewhat extraordinary circumstances for the Tribunal and lawyers to navigate.

[201]In our judgment, the claimant must persuade us that a just and equitable time limit is in the interests of justice.

[202]The reasons the claimant did not present a claim sooner, which he explained in his evidence, was that the software and equipment was part of his claim (albeit by the time of this hearing other claims had been withdrawn). He had other concerns about his treatment by Mr FF and others which he sought to resolve internally because he believed, if “we could open a dialogue I could drop the complaint and establish better communication” and the issues could be overcome. He also spoke to HR about these matters and ultimately, when progress remained slow and unresolved, the BMA came to assist in meetings and communications in February 2023.

[203]In support of a just and equitable extension the claimant also said he would be subjected to extreme prejudice if his claim was not permitted and it was in the public interest for discrimination to be combatted in the public sector.

[204]On behalf of the respondent it was submitted that justice is served by the enforcement of time limits - the respondent is entitled to its limitation defence - and finality in litigation. Further that the lack of absolute clarity on the equipment provision, in particular concerning shop floor conversations forgotten because of the passage of time, have prejudiced the respondent.

[205]On the last point, it is as likely that forgotten conversations limited the claimant’s case – indeed he said as much – that he had confined much of his case to those matters which were proven on the documents, albeit he did remember (and so did Ms II) some specific conversations. On balance this is a factor to be weighed in the mix. Similarly the prejudice to the respondent to lose a limitation defence.

[206]The length of the extension is considerable, but the period covers a time when the claimant was managing the most difficult vicissitudes of life, and the respondent was under the ongoing strain of industrial action. Neither side has been helped by delay, but the Tribunal has been able to make findings tethered to a wealth of documentary evidence. The circumstances are such that it was a lack of action, rather than conversation, which has so hindered the deployment of specialist equipment to help the claimant.

[207]We ask, is justice and equity by a decision that the claimant could and should have presented the reasonable adjustments claim in February 2023, while seeking to resolve matters and ensure his offer became unconditional?

[208]On balance we consider it would not be just to apply the Section 123(1)(a) time limit. At the heart of the claimant’s case are the failures we have found, and in respect of which, without a Section 123(1)(b) time limit, there will be no 44 remedy. That is, indeed, extreme prejudice and it outweighs that of the respondent losing a limitation defence. It would not be in the interests of justice in all the circumstances of this case, which are very particular. The Tribunal thinks the just and equitable time period is that ending on 13 October 2023, when the claim was presented. The section 20/21 complaint therefore succeeds. Delays in the pre-employment checks caused the claimant to delay treatment?

[209]This is described by the claimant at paragraphs 13, 14, 45(d) and 57 of the claimant’s particulars of claim, the latter under a section headed “impact”, and is further developed in the claimant’s schedule of loss.

[210]The claimant did not pursue in the list of issues or in submissions his assertion that the delay in the assessment process was unfavourable treatment (because of something arising) which caused him to delay undergoing medical treatment ie that part of his para 45(d)/Section 15 allegation. The Tribunal directed the facts be addressed in evidence because it was convenient to deal with those facts should they become necessary for

remedy.

[211]We summarise and confirm those facts below, but in light of the failure in the claimant’s Section 15 claim assessments claim, it appears likely that the part they now play is limited.

[212]MT2 had been a potential treatment for the claimant since 2021; in early October 2022 he did not wish it for a number of reasons, including his employment situation; he was being pressed by Dr HH out of clinical necessity to start treatment and he continued to delay for all the previous reasons (including that he wanted to have his job confirmed first), but also because he considered that the test results on which she had relied in pressing the clinical need were unreliable. His desire to secure a job applied to both applications – to the respondent and to [YY]. It also took [YY] time to clear the claimant through pre- employment checks and as soon as that appointment was unconditional, surgery was undertaken in late March 2023. We trust those findings will assist the parties in narrowing the remedy issues which arise on this Judgment. Case Numbers: 1806606/2023 45 45 Case No: 1806606/2023 EMPLOYMENT TRIBUNALS Claimant: AA Respondent: [XX] University Teaching Hospitals NHS Trust Heard: 23 and 28 April 2025 Deliberations: Before: Employment Judge JM Wade Mr D Wilks Mr D Eales Representation Claimant: Mr J Arnold, Counsel Respondent: Mr T Wilkinson, Counsel REMEDY JUDGMENT The unanimous Judgment of the Tribunal is: In accordance with Sections 119 and 124 of the 2010 Act:

Deliberations:

[1]The Tribunal makes no award in respect of pecuniary loss.

[2]The Tribunal awards the following sums: Auxiliary Aid failure Injury to Feelings £ 18000 ACAS Uplift at 10% £ 1800 Interest thereon £ 4038 Section 15 offer withdrawal Injury to Feelings £ 25000 Acas Uplift 10% £ 2500 Interest £ 3942 Aggravated Damages £ 2000 ACAS Uplift at 10% £ 200 Interest thereon £ 22 Total of all Equality Act awards including interest £57 502