Ms A Queiroz v Medical Services International Ltd: 2204183/2022

EMPLOYMENT TRIBUNALS

Case No 2204183/2022

Between

Ms A QueirozClaimant

Medical Services International LimitedRespondent

Before

Employment Judge Joffe

Represented herself for claimant

Ms Musgrave-Cohen (instructed by counsel) for respondent

Date 9 August 2023

JUDGMENT

[1]The claimant was unfairly constructively dismissed by the respondent 2. The claimant’s claims of harassment related to disability contrary to section 26 Equality Act 2010 are not upheld and are dismissed. 3. The claimant’s claims of direct disability discrimination contrary to section 13 Equality Act 2010 are not upheld and are dismissed.

[4]The claimant’s claims of unfavourable treatment because of something arising in consequence of disability contrary to section 15 Equality Act 2010 are not upheld and are dismissed.

[5]The respondent failed in a duty to make reasonable adjustments contrary to sections 20 and 21 Equality Act 2010.

[6]It is just and equitable to extend time for the claimant’s claim of failure to make reasonable adjustments. Case Number: 2204183/2022 2

REASONS

Conclusions

[1]The parties had agreed a list of issues at a case management preliminary hearing before Employment Judge Elliott on 30 September 2022. That list was as follows: AGREED LIST OF ISSUES

[1]The claimant brings the following claims. For the purposes of the claim for disability discrimination, disability is admitted for the conditions of fibromyalgia and centralised pain sensitisation.1.1 Failure to make reasonable adjustments under sections 20-21 Equality Act 2010 (“EqA 2010”);

1.2 Discrimination arising from disability pursuant to section 15 EqA 2010;

1.3 Disability related harassment pursuant to section 26 EqA 2010;

1.4 Direct disability discrimination under s13 EqA 2010;

1.5 Constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996 (“ERA 1996”) / s98 ERA 1996 Preliminary Issues Jurisdiction

[2]The claimant contacted ACAS on 29 April 2022 as part of the Early Conciliation Procedure (‘EC’) and was issued with an ACAS Certificate on 10 June 2022. The claimant presented her claim on 24 June 2022. In respect of any act or omission that is alleged to constitute unlawful discrimination that occurred before 30 January 2022:2.1 Do such acts/omissions constitute part of conduct extending over a period for the purposes section123(3)(a) EqA which ended on or after 30 January 2022?

2.2 Alternatively, would it be just and equitable to extend time pursuant to section 123(1)(b) EqA?

[3]Constructive dismissal3.1 Was the claimant constructively unfairly dismissed within the meaning of section 95(1)(c) of the Employment Rights Act 1996.

3.2 In the circumstances, did any or all of the following alleged conduct constitute an actual or anticipatory breach of the implied term of trust and confidence by the respondent: Case Number: 2204183/2022 33.2.1 failing to arrange a suitable redeployment opportunity for the claimant on a permanent basis and/or allowing the claimant to continue with her redeployment in the Pre-Assessment Clinic uninterrupted;

3.2.2 failing to respond to or acknowledging the claimant’s enquiries and alleviating her concerns about the future of her employment and the unreasonable conduct of her colleagues directed at her;

3.2.3 failing to take any action to prevent the claimant from being bullied and harassed by her colleagues, in particular Ms Gerona, and did this create an intolerable work environment for her;

3.2.4 failing to take any action to prevent the claimant from being subjected to Ms Gerona’s unreasonable conduct, in particular her micro-management of the claimant;

3.2.5 failing to address the claimant’s request to change her shift patterns to Tuesdays, Wednesdays and Saturdays and/or accommodating any requests to swap shifts;

3.2.6 placing unreasonable demands on the claimant by expecting her to carry out additional tasks, such as phlebotomy, without additional pay and support on Saturdays and Sundays, days of heavier than usual workload;

3.2.7 subjecting the claimant to the events of 1 February 2022 by Mr Polines, which the claimant will allege left her feeling distressed and humiliated to the extent she was unable to remain at work and complete her shift;

3.2.8 subjecting the claimant to repeated remarks from colleagues, in particular Ms Gerona and Mr Polines, asking her to return to the Oncology Ward;

3.2.9 removing the claimant from her scheduled shifts without any explanation or discussion with her, and whether this left her to consider herself dismissed from her employment;

3.2.10 failing to investigate and address the claimant’s concerns in a timely manner despite asking her to retract her resignation on more than one occasion;

3.2.11 assigning Mr Kennedy to investigate her grievance in the full knowledge that he was leaving his employment within a short period and failing to inform the Claimant of this fact.

3.3 Were the following 3 terms breached?

(i) The implied term of mutual trust and confidence;

(ii) The duty to provide a safe working environment; and

(iii) The duty to provide reasonable support. Is this an implied term into the claimant’s contract of employment? Case Number: 2204183/2022 4

3.4 Were any of the alleged repudiatory breach(es) the reason why the claimant decided to terminate her employment?

3.5 If so, did the claimant delay in resigning and thereby affirm her contract of employment?

[4]Ordinary unfair dismissal – section 98 ERA 19964.1 If the claimant was dismissed, what was the reason for the dismissal?

4.2 Is the reason a potentially fair reason within the meaning of sections 98(1) and (2) ERA 1996?

4.3 If so, in the circumstances (including the size and administrative resources of the employer’s undertaking), did the respondent act reasonably in treating that reason as a sufficient reason for dismissal?

[5]Disability related harassment (section 26 EqA)5.1 Did any of the following amount to unwanted conducted by the respondent?5.1.1 The matters listed at 3.2 above.

5.1.2 The alleged constructive dismissal.

5.2 If so, was the conducted related to the claimant’s disability?

5.3 If so, did the conduct have the purpose of violating the claimant's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for her?

5.4 If not, did the conduct have the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her?

[6]Direct disability discrimination (section 13 EqA)6.1 Did any or all of the following matters constitute less favourable treatment of the claimant by the respondent in comparison to a comparator because of the claimant’s disability?6.1.1 any or all of the matters listed at 3.2 above.

6.1.2 the alleged constructive dismissal.

6.2 The claimant relies on a hypothetical comparator.

6.3 Was dismissed the claimant within the meaning of sections 39(2)(c) and 39(7)(b) EqA. Was the claimant entitled, because of the respondent’s conduct, to terminate her employment without notice? The claimant relies on the actions listed at paragraph 3.2 above as establishing her entitlement to termination.

Findings of fact

[7]Discrimination arising from disability (section 15 EqA) Case Number: 2204183/2022 57.1 Did the following arise in consequence of the claimant’s disability?7.1.1 her inability to carry out all the duties of her substantive role due to her fibromyalgia and central pain sensitisation.

7.1.2 her requirement for reasonable adjustments to her role.

7.2 Did any or all of the following matters constitute unfavourable treatment because of something arising in consequence of the claimant’s disability?7.2.1 any or all of the matters listed at 3.2 above.

7.2.2 the alleged constructive dismissal.

7.3 Was the claimant dismissed within the meaning of section 39(7)(b) EqA. Was the claimant entitled, because of the respondent’s conduct, to terminate her employment without notice? The claimant relies on the actions listed at paragraph 3.2 above as establishing her entitlement to termination.

7.4 If so, was the claimant treated unfavourably because of the “things” listed at paragraph 7.1 above?

7.5 If so, can the respondent show that the treatment was a proportionate means of achieving a legitimate aim? In broad terms the legitimate aim is providing a safe place of work for the claimant and a safe environment for patients. The respondent has leave, as set out below and if so advised to give particulars of any other legitimate aim relied upon.

[8]Reasonable adjustments (sections 20 and 21 EqA)8.1 Did the respondent apply the following PCPs?8.1.1 The requirement to undertake all the duties of the substantive role, in particular, the manual handling aspects.

8.1.2 The requirement to consistently work weekend shifts without flexibility.

8.1.3 The requirement to be paid at the normal rate of pay for weekend work.

8.2 If so, did this place the claimant at a substantial disadvantage in comparison with persons who are not disabled? The claimant asserts that it did, by placing her at risk of exacerbation of her health conditions, the uncertainty about the future of her employment which caused her a high degree of stress and placing unreasonable demands on her to work weekend shifts routinely without support and/or flexibility.

8.3 If so, was it reasonable for the respondent to have taken the following steps to avoid the disadvantage?8.3.1 Allow the claimant to continue in her redeployed role uninterrupted.

8.3.2 Redeploy the claimant into another suitable role or within Pre-Assessment on a permanent basis. Case Number: 2204183/2022 6

8.3.3 Allow the claimant to change her shift pattern to Tuesdays, Wednesdays and Saturdays.

8.3.4 Pay the claimant the enhanced rate of pay for weekend work.

[9]Reasonable Steps Defence 9.1 In the event of a prima facie finding of discrimination by any of the respondent’s employees, did the respondent take all reasonable steps to prevent the alleged discrimination or acts of that description (section 109(4) EqA)? NB Although this issue appeared in the list of issues the defence was not ultimately pursued by the respondent. Findings of fact The hearing 2. We had an electronic bundle running to 594 pages. A handful of additional documents were disclosed during the course of the hearing. We were provided with witness statements from and heard the evidence of:a. The claimant; For the respondent:

b. Mr A Polines, formerly the lead nurse at the pre admissions clinic at the Cromwell Hospital;

c. Ms S Doran, clinical team leader, oncology, at the Cromwell Hospital;

d. Ms P Gerona, nurse at the Cromwell Hospital. 3. We also had a witness statement from Ms K Crichton, Head of Transformation at the Cromwell Hospital. Ms Crichton did not give live evidence as she was due to give birth the week of the full merits hearing. We read that statement which was controversial. 4. Each party provided us with a chronology and we also had a cast list. Facts in the claim 5. The respondent runs the Cromwell Hospital, which is a relatively small private hospital with some 794 staff. Relevant policies and procedures 6. We were not taken to many policies or procedures. The respondent has an anti harassment and bullying policy but reference does not appear to have been made to it during the events with which we are concerned. Case Number: 2204183/2022 7 7. We looked at the respondent’s sickness absence policy, which contains provisions about making reasonable adjustments for employees with disabilities. A possible adjustment is redeployment to an alternative role. The policy says: ‘…(this is dependent on the availability of a vacant position and your suitability to the role itself). You should not be required to go through our normal recruitment process if a suitable role can be identified.’ 8. We did not hear from a witness from the respondent’s HR department and we were told very little about that department functioned and provided support to management. 9. The claimant started working for the respondent as a health care assistant on the oncology ward on 9 December 2013. We understood that this role, unsurprisingly given its nature, involved some heavy lifting.

[10]The claimant’s job description included phlebotomy and the claimant obtained a venupuncture qualification in 2015.

[11]The claimant told us that phlebotomy was a ‘band 3’ task and commanded a higher rate of pay. Neither Mr Polines nor Ms Doran was able to comment on those assertions and we saw no documentary evidence which supported them or even referred to ‘bands’ for health care assistants.

[12]The claimant’s normal working hours were 37.5 per week which would be worked in 12.5 hour shifts any day in the week and on either day or night shifts. She said that she worked about 1.5 weekends per rota and she believed that this was an entitlement. We saw no documents relating to that arrangement.

[13]At the relevant time, management of the oncology ward was in the hands of Ms Doran and Ms A Naveas-Diaz, ward sisters. At the time of the events we are concerned with, Ms Doran was new in role and was getting up to speed with her management responsibilities. We understood that Ms C Banton was the HR adviser with responsibility for that area and that she was Ms Doran’s main HR contact.

[14]We saw some vacancy lists / job bulletins which we were told were emailed weekly to all staff. The claimant had no recollection of receiving these. We bore in mind that she was not performing a desk based job.

[15]On 13 May 2020, the claimant had an accident whilst caring for a patient on the oncology ward. She injured her lower back. She was absent from work with back pain between 5 and 28 June 2020 and had a second period of absence between 5 September 2020 and 18 October 2020. She was referred to occupational health by Ms Doran on 19 October 2020 with knee and back pain. On her return to work, Ms Doran made adjustments including providing Case Number: 2204183/2022 8 that the claimant should do no manual handling and that she work one day on and one day off with no nights. Ms Doran discussed looking into a department with a lighter workload with the claimant.

[16]On 4 December 2020, the claimant emailed HR: I work as HCA at Oncology ward since December 2013. In the last two years I have been experiencing back pain quite often. At the end of march 2020 I have had an unfortunate incident while helping a patient with an aneurism, fainting and falling on me then my back was twisted trying to prevent the patient to fall on the floor. It was very painful but I've thought it would go in few days. Unfortunately was getting worse until June I couldn't work and I had to call sick. Since I have been seeking my GP for several times for painkillers, phone consultation (As per Covid) and self exercises by physiotherapist at the GP. Despite all of this I was trying all I can to get better then I went back to work and after few weeks I was worse in pain then I could not work again. Thanks Bupa insurance I was able to see an orthopaedic consultant and have an MRI done which showed nothing at spine but he said it is the muscles related which is giving a diffused back pain and it is exactly what is still happening. I have had examination with the physiotherapist and he said it is muscle related issues. I am still having physiotherapy at the hospital, I feel better but the pain still coming back after few days. I am doing all exercises daily but the pain still in place. My manager Rosemary sister Angels and Sarah are aware of all. A datix have been done to record it also. The Occupational health advisor have spoken to me and advised to have a lighter duty but I have to say I still having pain in my back often and I'm trying to manage at work. The wards it can be demanding, multi tasks and duties has to be completed for the patients I totally agree and understand and which I have been doing for many years. I have to say that I am afraid that this pain will take longer to get better or happen again. I like working at Oncology but I'm not 100% physically capable to perform all my duties for now despite my problem persists and I'm afraid also the problem recur again. Also I have mentioned I totally understand that the nurses and the patients needs full help which sometimes perhaps it might be difficult to manage. I am happy and will continue to work at Cromwell Hospital, I would like if I may ask for a transfer or apply to outpatients when there would be a vacancy there if it is possible please which it is a lighter duty. You can talk to my manager and or sisters about it if you want to.

[17]Ms M Grimley in HR replied: Sorry to hear you’re having ongoing back pain issues, I sympathise having had issues myself. Case Number: 2204183/2022 9 Crystal will talk with Sarah Doran next week about the adjustments that are in place at the moment and the OH advice. I’m not sure if there are active vacancies in Outpatients just now and we’d need to talk through training requirements as the roles in OPD generally involve phlebotomy and cannulation skills. In the meantime if it may help you could email Cheryll Davies to see if she has any slots for staff massage as she has just started offering these again.

[18]The claimant responded: Thank you for your email. Oh dear, back issues are not nice at all. Yes as I said I will be interested on OPD when there would be a vacancy and I also do phlebotomy. I shall look for Cheryll. Thank you once again.

[19]On 19 December 2020, Dr B. Almahdi, pain consultant, confirmed that the claimant was suffering from central pain sensitization and fibromyalgia: The problem is a long-standing problem. It will not go away with treatment, but we are trying to improve your functionality with a prolonged course of physiotherapy, some pain medication and I am referring you also to acupuncture to try and build up the momentum; but there needs to be understanding that your health condition has changed and you need to adapt your physical tasks according to your new capacity and this needs to be addressed by the occupational health team where they should assign you the appropriate work according to your new capacity and adjustment of your work place accordingly.

[20]Between 20 December 2020 and 30 April 2021, the claimant was absent from work due to her impairment. She was referred to occupational health on 18 January 2021 and the occupational health nurse reported on 20 January 2021: Based on the information available to me today in relation to the demands associated with Ms Queroz's1 role, I understand that there may be limitations to the level of adjustments that is practical and possible for the business to accommodate. You may wish to consider having a meeting with her to discuss what may be possible: I would recommend for any adjustments implemented to remain in place until symptoms subside if possible. Ms Queroz advised that she is currently on annual leave and due to return to work next week. From my assessment today and based on the medical report, Ms Queroz is likely to struggle to continue undertaking all aspects of her job role in her current ward. She advised that the ward is a "heavy ward" and she would struggle with using a hoist, supporting heavier patients as well as pushing patients in a wheelchair. I would advise that you undertake a manual handling risk assessment as well as a risk assessment of her work duties and implement any indicated adjustments. 1 The claimant seems to have been more often referred to as Ms Queroz than Ms Queiroz by the respondent. Case Number: 2204183/2022 10 You may also wish to consider supporting Ms Queroz in a suitable alternative role.

[21]On 25 February 2021, there was a further OH referral resulting in a further report from an OH consultant on 12 March 2021: Recommendations on adjustments and support:• During the consultation, she mentioned to me that she has been struggling to undertake ward work, which involves manual handling. Pain is a subjective symptom, and it is difficult to measure the pain objectively. One has to rely on the symptom perception and address them.

• She informed me that she is unable to continue in her employment as a ward-based care assistant. She feels that she should be able to undertake the role of an outpatient-based care assistant due to her physical limitations. It is for your organisation to consider redeployment in the light of the medical information.

• As there is no serious pathology identified, it is possible that her symptoms may improve with some coping strategies and she should be able to undertake physically demanding tasks in the future. However, it is well known that patients with fibromyalgia make little improvement despite various interventions. Answers to additional questions: -Please advise on recommendations required supporting return to work: You may wish to consider a temporary redeployment into a less physically demanding role such as outpatient-based care assistant, if this is reasonable from your business point of view. She could consider returning to less physically demanding ward work once her symptoms are stabilised.

• Please advise on the assessment of fitness to continue in present role: She would require evidence-based intervention to help address her pain symptoms, which include cognitive behavioural therapy, comprehensive pain management with medication, and other interventions such as epidural injections.

• Please advise on the recommendations on any adjustments within the workplace: I would suggest to management to hold an open discussion with her and agree on a temporary redeployment plan until her symptoms stabilise. It is possible that she should be able to undertake ward work at a ward that does not require a lot of moving and handling. You may wish to provide her additional support from a colleague while undertaking manual handling tasks. … Follow up recommendations: Case Number: 2204183/2022 11 I have not made any follow-up arrangements. I would be happy to see the employee again once the management has had an open discussion about redeployment issues. I would be happy to provide any additional advice if the management has identified an alternative role.

[22]We noted that, after this point, the respondent treated the claimant as if it accepted that a return to full duties on a ward would not be possible. None of the subsequent dealings with the claimant suggested that anyone involved believed that the claimant would be fit to return to full ward duties within the foreseeable future. The claimant was never referred back to occupational health to ascertain whether she might be fit. Ms Banton decided a further referral was not required.

[23]On 5 February 2021, Dr Almahdi confirmed his original diagnosis.

[24]On 3 May 2021, the claimant had a return to work meeting at the oncology ward with Ms Doran, who recorded: Adjustments: We have stipulated no 'manual handling' within the work place; this includes hoisting, pushing or pulling trolleys/beds/wheeI chairs/ commodes and alike with patients on board• Angelah is happy with her current working environment and gives me permission to disclose our meeting and adjustments with the site leads, senior nurses etc particularly regarding amendments to practice.

• She would like us to look into redeployment to a 'lighter' workload department and this will endeavour to be discussed at ward level with the fellow ward sister. I have said to Angelah at the moment with the current pandemic we may not be able to facilitate this and she understands.

• She has suggested she would prefer to do 1 day on and 1 day off as per her current rota but working only 7.5hrs. This has been actioned and will be reviewed in 4 weeks. …

• She is happy to help turning patients but we have recommended only patients that are able to assist Angelah will only be there in a supportive role not to fully aid the patient. …

• 1 have advised Angelah to speak up to the NIC if she feels worsening pain and needs a rest and we will accommodate this as feasibly possible.

• We have suggested a 10 minute break/respite off the ward every 2 hrs for the purposes of undertaking her physio exercises

[25]The claimant said that at this point she should have had a long term sickness meeting. It was not apparent to the Tribunal that such a meeting would have Case Number: 2204183/2022 12 been different from the meeting she had with Ms Doran, save that there would have been HR involvement.

[26]Ms Doran wrote to the claimant about their discussions and in particular about a proposal to find an alternative role for the claimant: We will endeavour to meet on the 26/05/2021 to review things but I understand that this is likely to be an ongoing problem for you in which we will support you. You have given me permission to cascade this across the site managers and senior nursing team.

[27]The claimant gave evidence that during her four weeks back on the ward, colleagues asked her why she came back to work if she could not work. She spoke to Ms Doran about how she would like to be redeployed as her colleagues were not happy that she was not fully capable of physical tasks.

[28]Ms Doran began to explore other opportunities for the claimant. She spoke to a colleague in outpatients who said that they were proposing to establish a GP clinic which might require an HCA. This was only in the planning stages and they were waiting for a business case to be approved. She also looked for vacancies in phlebotomy and general outpatients but, due to low staff turnover, there was nothing in those areas.

[29]Ms Doran became aware that the pre admissions clinic was busier as it had had to introduce weekend working due to covid testing being required; also some cover was required for staff absent for covid related reasons. There was no permanent vacancy but the department confirmed they could use the claimant to cover some shifts.

Law

[30]Ms Doran wrote to Ms J Wilcocks on 12 May 2021: Jacks has asked me to touch base with you regarding a possible position for a HCA in pre admission clinic. I have approached Angelah and asked her and she is keen to transfer over albeit in the short term. However, she will need to continue to work alternate days but is happy to work weekends so tues, thurs, satu, mon, weds, fri, sun etc. May 2021

[31]On 18 May 2021, Ms Wilcocks replied: Many thanks for freeing up Angelah. Is she full time? The pre assessment unit works 4 days a week so working every other day she might not be able to meet her contracted hours. Is the every other day working an occ health recommendation? Would she be happy to supplement missing hours with AL or a long day on the ward or another day in pre assessment? I have copied in Tonee who manages pre assessment. 31. Ms Doran responded: what are the hours per day you work? Do you cover weekends? Case Number: 2204183/2022 13 Currently she is on a phased return to work. Upon speaking with Angelah on her day back she has a preference to do alternate days as the day she works is so exhausting. I am scheduled to review her on the 26/05/2021 regarding shift patterns moving forward. I await your reply before cascading

[32]At this time, Mr Polines was the lead nurse of the admissions clinic. It had previously been a single nurse service. Ms Polines was joined by Ms Gerona and other nurses, Nicola and Kerry. There was also Helen, an administrator, and Nicole, an HCA. Kerry and Nicole were also redeployees. Nicole was waiting for a knee replacement. Some nursing staff who had been shielding worked in the clinic conducting telephone health assessments.

[33]Ms Gerona mainly worked in the clinic at weekends and would be in charge in Mr Polines’ absence.

[34]The clinic was open 7 days a week, 8 am to 6 pm. Patients due to have a procedure would attend for necessary tests. On any day it would be a small service run by a nurse with one or two HCAs.

[35]There were two patient rooms; in the first room the patient met with the nurse who would give the patient information about what to do before the procedure, take a medical history and give appropriate health education advice. The nurse would also administer a covid test.

[36]The patient would then be seen by the HCA who would carry out blood tests and any other tests the consultant had ordered, as well as screening for MRSA.

[37]At the relevant time, patients had to have a covid test 72 hours before procedures. Few procedures were carried out on Saturday and none on Sunday. The quietest days in the clinic were therefore Wednesdays and Thursdays. No HCAs were needed on those days. Nursing staff would carry out telephone health assessments on those days. Saturday and Sunday by contrast were busy days and HCAs were required.

[38]There was a dispute between the parties as to whether there was work to occupy an HCA in the pre admissions clinic on a Wednesday. The claimant said that there were some patients for Saturday procedures. There was also admin to do – making up the packs for patients and filing. Mr Polines said there was not enough work. The nurse could cover the limited number of patients and there was an administrator to do the packs.

[39]Mr Polines was happy to accommodate the claimant in pre admissions as he knew they she was a good worker. They needed additional resource but not Case Number: 2204183/2022 14 permanently. They expected the workload would ease when covid restrictions eased. They initially planned for the claimant to come to the pre admissions clinic for three months. That was subsequently extended for an indefinite period.

[40]The claimant was aware when she went to pre admissions that phlebotomy was part of the role and that she would receive the same rate of pay as she had received on the ward.

[41]From 31 May 2021, the claimant was redeployed to pre admissions. She also helped in the phlebotomy department on a few occasions and did some shifts on the ward. Mr Polines told other staff that the claimant was joining the clinic for an indefinite period of time and that she could only do minimal manual handling.

[42]On 25 May 2021, Ms Doran emailed Mr Polines and others: Hello team, Firstly I’d like to thank Tonee and his team for accommodating Angelah in her redeployment. It really means a lot to all involved. We have agreed that as of the 31st May Angelah will predominantly work in pre admissions on the pattern i have included. Her roster will comprise of a phased return to work pattern of 8-6 with the remaining 1.5hrs being annual leave. She will work 13 shifts per roster. Tony, OPD Tonee wondered if Angelah should move over under his team whilst she’s being redeployed? I have allocated all her shifts on the health roster to reflect that in the template i have sent to you. Angelah is aware of her shifts

[43]Mr Polines said that the original arrangement was for the claimant to work Mondays, Tuesdays and Fridays which was not ideal as Saturday and Sunday were busy days. Ultimately the claimant ended up working Tuesdays, Saturdays and Sundays. This was because she was doing independent study on Mondays and Fridays, so this was an arrangement which suited her needs as well as covering busy days in the pre admissions clinic.

[44]On 10 June 2021, Ms Doran met with the claimant, who was unhappy that her shifts were not set days and that some of tasks she was doing seemed menial. Because she was splitting her time, she did not feel she was in a team. Ms Doran said that she asked her to be patient and to continue looking at published vacancies. The claimant did not recall being told to look for vacancies and the advice was not written down. That day, Ms Doran sought to initiate an OH review and also wrote to Ms Banton: Case Number: 2204183/2022 15 I had a meeting with Angelah today to review how things are going with her phased return to work as its been 2 weeks. It saddens me to say that its not going well. Angelah enjoys elements of the work and although physically its lighter on her pain, mentally its sapping her completely and I’m not happy with this. I want to clarify that this is not a reflection on the preadmissions team as they have been nothing but accommodating. Angelah is ‘slotting in’ where needed and although this is serving a purpose for the hospital its not serving a purpose for Angelah as she is not in a ‘team’. When in the preadmissions unit she may have to spend a morning in phlebotomy or when she’s on the ward because we don’t have visibility to her rota she’s often tasked with essential but menial tasks. I have agreed to trial for another 2 weeks with this current set up and will speak with the roster team to get Angelah’s odd shift every week allocated to our rota so we can see what she’s doing to make it a more seamless approach. What i need from you is what we are going to do for Angelah moving forward and how we support her and her functionality to work. She is currently on a phased return to work and using up annual leave to make up the hours required to meet her contract. This is not sustainable long term. She wants to return to the ward but she is compromised with her pain to what she can physically do. I feel that BUPA as an organisation need to source a role that is suitable for Angelah rather than this makeshift approach we are doing at the moment. Angelah has worked with us for over 7 years now and we have an obligation to support her in this process. I will process a further OH referral which i feel will be irrelevant in processing this, i await your response.

[45]She wrote again to Ms Banton later that day: Could we please try and sit with Angelah and discuss her options moving forward as i feel a more comprehensive plan would be useful for all of us to adhere to. It would be useful to consider her working pattern as currently she is on a phased return to work and i feel that we need to have a long term plan with her hours and how we will meet them. I am away the week commencing the 28/06/2021 but Jackie is around and happy to speak with Angelah following your recommendations That meeting never happened.

[47]On 24 June 2021, Ms Doran and the claimant discussed the situation and agreed that the claimant could transfer entirely to pre admissions on a temporary basis. The claimant was still keen to go to the outpatients department and commented that that department was using some bank staff.

[48]Ms Doran wrote to Ms Banton: Case Number: 2204183/2022 16 I have sat with Angelah today and will draft another email later which I will cc you in. Wanted to clarify a few things. So we have established she is to be redeployed into a lighter role and she agrees. She is prepared to increase the days in preadmissions so she’s not on the ward odd days. When she has been in phlebotomy in outpatients they use bank and I am keen to talk to the sister there or lead nurse to establish if that’s an opportunity to move to before we finalise anything. If she stays with pre admissions their hours are only 8-6pm she would then only be working 123.5hrs per month instead of 150. I have explained that I would likely have to transfer her across to Tonee permanently under a flexible working plan so it reflects her annual leave etc is this correct. I have some loose ends to tie up; she has OH today at 11. We have until the 15/08/2021 till her phased return to work will come to an end. If I get an outcome before then I will end it sooner.

[49]She also wrote to Ms D O’Sullivan, lead nurse in diagnostics: I’m not sure if you are aware but Angelah Queroz is currently working split mixed shift as a phased return to work within the preadmissions department. We have reviewed things a few times since her return and she is not fit to continue her current role as a ward based HCA. She has enjoyed her time in preadmissions although it’s a little disjointed and finds the reallocation of her placement a little off putting. She has worked with Geraldine a few times and cant speak highly enough of her. Geraldine had mentioned that they often use bank to cover their service and was wondering maybe Angelah could move across to there in a more permanent role. Her phased return to work comes to an end the week commencing the 16th august but i am keen to get some stability in place for her moving forward.

[50]On 28 July 2021, Ms O’Sullivan replied to say that there were no current vacancies: I don’t think we currently have a HCA vacancy in the team but am still catching up so Geri would be best placed to advise. Geri- would we have any bank/perm position we could discuss with Angelah?

Conclusions

[51]On 7 July 2021, Ms Doran chased Ms O’Sullivan and Ms O’Sullivan replied: We don’t currently have any active vacancies for HCAs in OPD but we may have some coming up in the next few months. She would have to apply and go through the interview process, we can make sure if any new roles are posted these are shared with Angelah to apply. [Emphasis added] Case Number: 2204183/2022 17

[52]On 8 July 2021, there were emails about moving the claimant’s Monday shift to Sunday in preadmissions. The emails do not reveal who initially suggested it, but it appears that the arrangement was agreed.

[53]On 13 July 2021, Ms Doran wrote to HR: Hi Jacks i have arranged a meeting to meet with Angelah Queroz on the 26/07/2021 regarding the current working pattern. So her phased return to work comes to an end on the 15/08/2021. Deidre had proposed a HCA for the GPs in the mews but discussions are still in the pipeline and there are currently no vacancies. Angelah has developed her skills since moving to pre admissions, phlebotomy, ECGs and general assessment. She is an asset to the hospital and i don’t want to let her health impinge on her employment. I know there was a concern that from a budget point of view we would essentially be paying for her to work elsewhere but i want us to stick with this set up for at least 6 months in anticipation of the proposed opening becoming available. I haven’t informed Angelah of the process after the 15th although she is aware that if there are no vacancies she could be terminated on medical grounds.

[54]The claimant’s evidence was that Ms Doran told her that there was a plan to terminate her contract on medical grounds. She says that she asked Ms Doran how the respondent could do that when she was still working and could still work. She said that Ms Doran said that there was no vacancy and that they would probably terminate her contract. The claimant said that she went to cry in the toilet.

[55]It was accepted by the respondent that there was a conversation about the possibility that the claimant’s employment could be terminated if a permanent vacancy was not found for her. We accepted that the claimant was alarmed by the conversation. The claimant’s oral evidence was that she felt at risk from this time. We noted that there was no assurance that she had any secure tenure in pre admissions and that she was led to believe that managers / HR were looking for a permanent vacancy for her.

[56]On 26 July 2021, the claimant wrote to Ms Doran: Thank you for your time earlier. As we spoken today I have made a sample of four weeks template accordingly with pre assessment and my capacity. I am happy to do three days on pre assessment and I have to have the rest of the hours unpaid for now unfortunately.

[57]Ms Doran wrote to Mr Polines: Case Number: 2204183/2022 18 I have spoken with Angelah today to keep her in the loop aware of the fact her roster with you comes to an end on the 16/08/2021. We have discussed things and as Angelah is not fit to return to the ward the redeployment will continue for now. If you are happy I’d like this to continue till the roster that ends the 07/11/2021. You have privileges to amend her rota. She will still be down as a phased return to work however instead of the 1.5hrs after being used as annual leave it will be as unpaid leave. Angelah has drafted a mini rota to ensure she works predominantly with you. Any hours owing will be down as unpaid. Please liaise with the health roster team if you are unsure how to allocate her hours so long as you have the days she’s working they can do the rest

[58]The claimant said that she regularly asked Ms Doran if she would be offered a permanent transfer to pre admissions or somewhere else and what would happen. Ms Doran told her that she was still waiting for the senior manager to advise her what to do. October 2021 incident with Ms Gerona

[59]The claimant’s evidence was that she requested a change of shift on a day when Ms Gerona was in charge of the pre admissions clinic and Ms Gerona told her she should go back to the ward as she was not suiting the clinic: After I requested to swap a shift, Perry told me verbally that I do not suit the clinic on busy days, and therefore it would be better that I go back to the ward.

[60]In her witness statement Ms Gerona denied telling the claimant she should return to the ward. In oral evidence, she said that she did not recall saying that. She said that the claimant was asking her for a change of shift at short notice and sending messages to Ms Gerona’s personal phone.

[61]Ms Gerona sent the claimant a text message at this time: Angela, you can work tomorrow as the clinic is busy. I put you on AL for Tuesday. Next time you want to change your shift, please speak to Tonee directly, not me. We will need to discuss about your shift patterns as it doesn’t seem to suit the clinic’s busy days. Maybe think of going back to the oncology ward to see if they can accommodate you better.

[62]The claimant said that Ms Gerona was critical of her speed in front of patients and spoke to her rudely. Ms Gerona said that she wanted to ensure that patients were dealt with quickly and were not queueing in corridor (there was no waiting room). There were occasions when she had to tell the claimant to speed up her work. She said that the claimant had a tendency to be chatty. She did not monitor how long she spent on blood tests or ECGs or monitor her performance. She said that she would tell other HCAs to work more quickly too if appointments were overrunning. Ms Gerona said that her Case Number: 2204183/2022 19 criticisms of the speed of the claimant’s work were not related to her health conditions.

[63]As to her manner, Ms Gerona said that she had a loud voice and some colleagues might think she came across as rude but that was not her intention.

[64]On 5 October 2021, the claimant wrote to Ms Doran about the incident:: As you are aware, I have spoken to Tonee before to put me on a rota pattern days of work.I have had also asked a few times to change some days as I was not able to do, as the Rota comes on different days then requested. I was going to ask Tonee to work Tuesdays, Saturdays and Sundays. Tonee is away for little while and I could not talk to him yet so I have had asked Perry to make some changes on the Rota this week which she was not very happy to She has told me that I should go back to Oncology as I do not suit the clinic busy days of work. Today Perry still not happy and as Tonee is not here I have asked Perry to speak to you If she still concern.

[65]Ms Doran said that claimant approached her. The claimant told her that she had started some further education and that affected her ability to work certain days. She felt that Ms Gerona was not happy to make the shift changes.

[66]Ms Doran wrote to Mr Polines: We have spoken before and am happy for you to ‘manage’ Angelah within the pre admissions unit. She is currently undertaking further education and is unable to work Mondays and Fridays but is committed to working Tuesdays, Saturdays and Sundays. Perry seems to think this is unachievable. As you are the manager I will leave to you to review with Angela upon your return. Not particularly happy that Perry threatens Angelah and says go back to your own department then. I am sure you can accommodate this Tonee. I will be in the 13/10/2021 and 14/10/2021 if you need to discuss further

[67]Mr Polines said he spoke with Ms Gerona and said that having the claimant was working well for them as it was reducing the need for bank staff and helping their budget performance. Case Number: 2204183/2022 20

[68]Ms Gerona said that Mr Polines told her to be mindful of how she spoke to the claimant, reminded her that the claimant not used to working with her and said that he did not want the claimant to get the impression that Ms Gerona was angry with her.

[69]The claimant said that Mr Polines did not tell her he had spoken to Ms Gerona and that he just told her not to take things personally. We accepted that Mr Polines spoke to Ms Gerona in the terms they both indicated but that he did not tell the claimant he had spoken to her. There was no evidence that the claimant received any meaningful feedback from anyone about this incident.

[70]Mr Polines said about what happened on this occasion: Perry has a loud voice and can come across as abrupt and rude, not just with the claimant but with others. Her emotions can sometimes get the better of her. She utters words that are not well thought off. She had an argument with the claimant because she found her to be working too slowly and patients outside waiting. At this time, I spoke to Perry to remind her to speak to the claimant courteously and professionally. I reminded Perry to give extra consideration to the healthcare assistants and that the service is a walk-in service and let the patients wait, if necessary.

[71]After this, relations between Ms Gerona and the claimant appear to have improved somewhat until the incident in January 2022 referred to below.

[72]In oral evidence, Mr Polines said that Ms Gerona was rude and could be hostile at times as well. Ms Gerona could be abrupt and could be misinterpreted as someone who was really rude because of her demeanour and how she talks. She got frustrated easily at times; her emotions got the better of her and sometimes she said inappropriate things. She had called him lazy. He had worked with Ms Gerona for a long time.

[73]In 2020, there had been a complaint about Ms Gerona’s behaviour, which was dealt with by HR; Mr Polines said that he had referred her to HR to see if she needed anger management. He said that occupational health had not agreed that Ms Gerona needed anger management. He had told Ms Gerona that she needed to try to control her emotions. When he spoke to Ms Gerona in October 2021, he had told her she needed to be careful given her previous record.

[74]He said that Ms Gerona found the claimant to be a slow worker. He disagreed that the claimant had been bullied by Ms Gerona; he said that he had been bullied himself and was sensitive to it.

[75]As to the incident itself, although the evidence we heard was not entirely clear, what was clear was that Ms Gerona had said that the claimant was too slow and that she had sent the text message about the claimant not suiting the clinic. We concluded that the tone of her interactions with the claimant would have come across as rude, harsh and hostile. Case Number: 2204183/2022 21

[76]On 21 November 2021, the claimant sent a sick note sent to Mr Polines: I wish all is well with everyone. Here is the sick note to send to HR if they need. I am having steroid injections this Thursday 4th of November for my neuropathic pain and if everything is alright I will be back on next Tuesday. I will keep you informed. This was the point at which Mr Polines would have known more about the nature of the claimant’s disability. Jocelyn incident

[77]At about this time there was an incident with another member of staff, Jocelyn Uy, a registered nurse. The claimant said: Jocelyn told me in front of Perry Gerona: "We will call Maria back, we prefer Maria to work, this is Maria's post, you are getting a favour being helped".

[78]Ms Gerona said in evidence that she did not witness this incident. Mr Polines became involved in the aftermath of the incident.

[79]On 21 November 2021, the claimant emailed Mr Polines2: Today, Sunday is very busy as normal, full clinic and Perry have made a good planning yesterday for Today as she could not get a second HCA for help today. We had agreed that the nurses will do the swabs and I will do the bloods and ECGs, but this morning I have Jocelyn talking very laud to me saying that is my job and so on. Tonee I really appreciate working here and I do all I can but I Can Not take staff behaving like that like she said she is doing me a favor as all of this is my job. This is really distressing kind of to work with and I really find very difficult to maintain composed and do the job. I did propose - as my choice, to work every full weekend doing extra skills such taking blood, EGC, swabs and I am not been paid for it but instead been told That this is my job by staff and basically this is not enough for them. I am sorry about this. I just want to share this with you and that you are right to choose the best for the clinic. 2 Idiosyncrasies of spelling, punctation and grammar are recorded in this and other messages as they appeared in the bundle. Case Number: 2204183/2022 22 Please Tonee feel free to talk and ask me anything you want as you are a such great soul and person to be and work with.

[80]Mr Polines said in his witness statement that: I spoke to the claimant to find out what Jocelyn had said to her and then I spoke to them both together and reminded them to behave professionally. I also clarified with the claimant that it was her job to do MRSA swabs and it is the job of the nurse to carry out COVID tests.

[81]The claimant said in evidence that Mr Polines did not respond to her email or speak to her about it. Mr Polines accepted in oral evidence that he had not spoken to the two together but said that he had spoken to them separately to clarify whose role it was to do the swabs and to tell them to act professionally.

[82]We accepted that Ms Uy had said to the claimant what the claimant reported. Mr Polines clarified whose role it was to do the swabs and there was no further incident with Ms Uy.

[83]On 27 November 2021, the claimant emailed HR: I am working on Pre Admission clinic since June of this year and since I am there I am doing Phlebotomy, ECG, Covid and MRSA swabs and my salary has not been reviewed since. I believe I am on Band 2 since I started working on Oncology at 2013, but over those years I have gained skills and experience by working there and I am now working in Band 3 with those extra skills. It would be nice if you could please review the working I am doing at pre assessment and the compatible salary please, if I am not wrong. You may talk with Sarah Doran and/or Tonee Polines.

[84]The claimant cross examined several of the respondent’s witnesses about why she did not get a change to her terms and conditions in writing when she went to the pre admissions clinic. The witnesses said there was no change to her terms and conditions as she was employed as an HCA and there was no change to the requirements in terms of what hours she could be asked to work and so forth.

[85]On 7 December 2021, the claimant wrote to Mr B Kennedy, oncology ward manager: We haven’t met personally yet but I know you are our manager to Oncology ward now, welcome! You might have heard about myself through Sarah Doran and/or Angels Naveas. Case Number: 2204183/2022 23 I only want to be brief here. As I am HCA to Oncology since December 2013 and this year June due to health circumstances I had to move to a lighter duty department which I am since June I have been working here. Thanks to Tonee and Sarah Doran they have had kindly transferred me to working in Pre admissions for a time. I wanted to ask you if you know what the management plan is, if are any change as a temporary contract from Oncology to pre admissions or I will continue as it is. Also I do Phlebotomy, ECG, and all types of swabs and the salary it is not compatible with the skills I am doing since June, so I think the salary should be reviewed If I am not wrong.

[86]The claimant received no reply to either of these emails.

[87]In early January 2022, the claimant was off work for a period with covid. On 5 January 2022, Mr Polines gave notice of his resignation.

[88]Around 11 January 2022, the claimant was expected back at work. There were text messages between the claimant and Mr Polines and Ms Gerona. Mr Polines and Ms Gerona suggested in evidence that the claimant gave conflicting reasons for her ongoing absence.

[89]Mr Polines said that the claimant texted him that she was worried about her back but then told Ms Gerona that she was not coming back due to pain in her foot. He said that he and Ms Gerona were frustrated because of the conflicting reasons and very short notice given. He said that he explained to the claimant that she needed to be straight forward with them about reasons for absence. He said he talked to the claimant about the conflicting reasons and the claimant said she did not want people to know about her back complaint. He said that he explained that people knew about her back complaint and it was necessary for them to know to ensure adjustments were made.

[90]The text messages between the claimant and Ms Gerona were as follows: Claimant: Hello, I know it finished, but I told Kerry and text tonee yesterday that I’m no feeling well with my back, the I had to take med in the morning. I’m coming tomorrow if I’m better today. Angelah (10:01 am) Ms Gerona: Angela, I need to know by midday today if you’re coming tomorrow. The Clinic is busy and I need to organise my staffing for tomorrow, We will discuss your sickness and probably get HR involved next week. Use this number or hospital’s preadmission number when you inform the unit… (11:10 am) Case Number: 2204183/2022 24 Claimant: No Perry you need to get someone for tomorrow, I can’t attend, I have shock in my r foot

[91]There were text messages between the claimant and Mr Polines: Claimant: Hi tonee, yes I know, I was worried as I have enough health problems already and being covid positive gave me extra worries which triggered my Neuro pain suddenly back but it’s less pain now as I took extra meds. When I am well and at work I give my best as a I know well and love what I do… Claimant: ** I did not discussed my neuropathic pain with everyone. X

[92]In oral evidence, Mr Polines said that the claimant said on the phone that she was worried about returning and he told her there was nothing to worry about. The text messages followed..

[93]Ms Gerona said in evidence that she was unhappy that the claimant did not return to work on the day she was due to return and gave conflicting reasons for her absence to her and Mr Polines.

[94]We note that Ms Gerona was not in a formal management relationship with the claimant and would have had no role in getting HR involved in relation to her sickness absence. When asked what she meant in her text message by getting HR involved, she said that there was a policy to get HR involved in case they needed to report the claimant to OH for any reason to be reviewed. She also said that there was a policy to escalate if there were three periods of sickness in a year but it was different for long term sickness. She accepted that it was Mr Polines’ job to contact HR.

[95]Mr Polines in his evidence suggested that he later told Ms Gerona that she should not say to the claimant that she was going to get HR to review the claimant’s sickness.

[96]We were not persuaded that the claimant had been inconsistent about her reasons for absence, particularly given the nature of her disability, which could lead to pain in multiple parts of the body, but we concluded that the late notification had been stressful for Ms Gerona and Ms Gerona and Mr Polines erroneously concluded that the claimant was being inconsistent about the reason for absence. Ms Gerona was annoyed and sent the text about getting HR involved which was intended to be and was perceived as threatening to the claimant. It was inappropriate and hostile. 23 January 2022

[97]The claimant gave this account in her claim form: On 23 January 2022 the Claimant was working with a colleague, Frelan Gabatino, Health Care Assistant (Bank) when Ms. Gerona entered the room Case Number: 2204183/2022 25 looking furious and loudly announced to the Claimant, “If you cannot work alone on Sundays, you must go back to ward or find another job. Go and find work somewhere else! I cannot have two HCAs helping you every Sunday, and neither can I help you! You work too slow!” Saturdays and Sundays were the busiest days in the Pre-Assessment Clinic. The Hospital policy at the time was that a Covid-19 test must be taken three days prior to the patients being admitted to the wards. The consultants and the theatres operated during weekdays only, therefore, the patients had to attend on weekends to be pre-assessed and have their Covid-19 tests carried out.

[98]In her witness statement, the claimant described the incident: Perry Gerona entered in the room I was working with bank HCA Frelan Gabatino and told me: It is better for you to find another job or go back to your ward. You work too slaw and talk too much. I cannot have 2 HCA every Sunday. If you cannot work alone on Sundays, you better find another place to work. We need to work faster here.

[99]In her witness statement Ms Gerona denied the claimant’s account. She said that she may have told the claimant and the other healthcare assistant to make sure they worked quickly and efficiently to avoid delays.

[100]In oral evidence, Ms Gerona said that she did not recall saying that the claimant should go back to the ward or find another job. She would on occasions tell the claimant to work quicker if she was being slow. She said that when she was busy and stressed she had a loud voice and her emotions got the better of her.

[101]The claimant said that she explained that she could only do what she could do and with her back pain she could not rush as much as Ms Gerona wanted her to. She said that Ms Gerona said that the clinic was busy and she needed to work faster.

[102]On 25 January 2023, the claimant emailed Ms Gerona, copying in Mr Polines and Ms Doran: I only wanted to ask you one favour from you if I may please. You do not need to keep pushing myself here by telling me things you already said at work such as, " I should go back to Ward... I do not suit the Clinic... you will talk to HR...I should find another job..." please and sorry but I already have enough of those advice thank you. Also I only do what I can do. I will know when I am ready to go and I do not need help with that, or if HR says so. Any concern or worries you might have, please do not approach me with such pushy harsh words, instead please do seek for support and guidance with HR, please. Feel free to talk to them regarding any questions you might have. Case Number: 2204183/2022 26

[103]Ms Doran replied: Thanks for cc'ing me in this email Angelah. Maybe we could sit down and discuss things. @Tonee Polines this is slightly concerning to have received an email like this from Angelah. As her manager I would like to be informed if her colleagues feel there is an issue. As you are aware Angelah has been redeployed on medical grounds and advice that Perry is offering is counter productive. I am very keen to discuss things further to support Angelah. I am in today if not maybe we could arrange for next weds/Thurs around 2pm

[104]Neither Ms Gerona nor Mr Polines sent any reply to the claimant’s email. Ms Gerona said that she could not recall receiving it but she might have done. She said that she probably did not reply because Mr Polines spoke to her before she did so. She said Mr Polines asked her what had happened on that day and told her to be mindful of how she spoke to the claimant.

[105]It seemed to us that had Ms Gerona taken significant issue with the claimant’s account of the facts in her email, she would have sent a reply outlining her version of events.

[106]Ms Doran saw the claimant, whom she said had been very distressed. The claimant told her that Ms Gerona had shouted at her in front of patients and rushed her, telling her to work more quickly. Ms Doran did not remember the claimant describing her treatment as bullying and harassment. Ms Doran told her that she would speak to Mr Polines. She had a discussion with Mr Polines at around this date. She could not recall specifically what she had said, but said that it was along the lines of, she could not have the claimant coming to her in tears. She was assured that Mr Polines would speak with Ms Gerona. Mr Polines did not contact the claimant at this point in time to discuss the matter.

[107]On 29 January 2022, the claimant spoke with Ms Doran and said they (Mr Polines and Ms Gerona) were really pushing and wanted her out of pre admissions. She said that she felt that Ms Gerona was bullying and harassing her by saying the things she had said and because of other occasions when Ms Gerona told her to hurry up in front of patients.

[108]By 30 January 2022, Mr Polines had not spoken with the claimant about the matter. At the end of the working day the claimant wrote to HR: I would like to share a staff matter with you if I may please. I appreciate Sarah Doran and Tonee for the redeployment to pre-admissions. Tonee has been welcoming and supportive. Case Number: 2204183/2022 27 Also, since I have started working there Perry Geronda and Jocelyn Uy have shown resistance and discontentment. I was told that Tonee is in charge of pre-admissions, but Perry seems to be the manager and in control of everything. I was told not to take everything personal from Perry - which until at this time I haven't but now things have gone too far from her and it is hard coping to work here now. She has spoken few things which is very upsetting such as: .. I should go back to ward.. I do not suit the clinic.. she will talk to HR... I should find another job.. Jocelyn Uy speaks unpleasantly and one day arguing with me she told me they want Maria to work there.(a Philippine HCA) Pre-admissions are very busy specially weekends and Perry always approaches me with harsh, pushy, and loud voice demanding things to be done her way. Despite my sickness absence, I have been working hard as much as I can to help then and even working all and every weekend, but it's not enough for nobody. I feel like as I am not one of them, I am taking their colleague's workplace, so she has been picking on since the beginning. Now I had enough of her disrespectful manner towards me and also by all those things she keeps saying I just realized she is harassing me on everything I do, and she is never happy. Last Sunday 23rd she came and spoke out loud that I must find another job as she will not help on Sundays anymore. (She meant not helping - e.g., doing covid test, when is very busy as 1 HCA must do bloods, ECG, covid, mrsa, mdr, observation for each patient and nurses go through patient's paperwork only) I have sent Perry an email asking her to stop this extremely unpleasant behaviour and I have also informed Sarah and Tonee. Sarah is aware of, but Tonee don’t respond. I have informed Tonee in the past about both objectionable conduct towards me, but he had not replied and one day by occasion we had spoken about it and it seems it is out of his control those types of personalities or he is not interested. I am sorry for disturbing with such matter, but I must share it with you. Case Number: 2204183/2022 28

[109]Also on 30 January 2022, which was a Sunday, the claimant wrote to Mr Polines: I would like to let you know that I will Not be able to work Sundays anymore from this Sunday 6th. As I have said, there is too much to cope with such colleagues pushing and complaining. It is very busy weekends and I have done all I can to help but I cannot make Perry (and Jocelyn sometimes) happy still I enjoy working here but it is impossible to win sometimes. I can continue on Tuesdays, Saturdays and Wednesday if you want to. I am very sorry about that, but I must be honest with you.

[110]On Monday 31 January 2022, Mr Polines wrote to Ms Doran, copying in the claimant Are you here tomorrow please? We surely need to meet re Angelah.

[111]The claimant’s next working shift was Tuesday 1 February 2022. She said that at about 4 pm on that day, Mr Polines saw her outside the room she worked in and asked her to have a quick chat. He asked why she was saying she could not work Sundays any more. She said that she was not happy with Ms Gerona’s hostile attitude towards her and could not cope with her abusive manner any more.

[112]She said in her statement: Tonee told me he could not change the rota as was already done, and I had to work as per rota. I told Tonne that Perry was really pushing me out of preadmissions. I told Tonee also that: I was working every Saturdays and Sundays since around July or August 2021, I was getting no enhanced payment to work every single weekend specially Sundays, Perry still unhappy with me, Perry told me I work too slow, and she told me also I should go back to oncology ward or find another job. I asked Tonee again please from that time to work on Tuesdays, Wednesdays, and Saturdays. Tonee Polines got upset and told me straight after that: "Angelah, is better for you find another job or go back to your ward - you are not happy here you can go, go, you can go". I said what did you just said? really? are you sure about this? He replied yes, that is all I wanted to tell you anyway. I then asked Tonee email Sarah Doran what he exactly told me, he said to me: I will. He then left

[113]In oral evidence, the claimant said that Mr Polines mentioned that he wanted her to find another place that was safe. She told her colleague Nicole what had happened. She cried in the toilet. She went to see Mr Polines again but he was with a patient. She told Nicole to tell Mr Polines she had gone home as he had told her to go and she left the hospital. Case Number: 2204183/2022 29

[114]Mr Polines said that he told the claimant that it was not possible to just change her shift based on her demand. Her shift should not just benefit her but the service as well. He said that he reminded her that changing her shift would not solve the problem as Ms Gerona still be around to work with her. He agreed that the claimant said that Ms Gerona was bullying her and had asked her to find a new job the week before. He said that he said that he would need to sit down and discuss this with the claimant and Ms Doran to decide what was best for her. He said that he did not dismiss her but that he did say that he wanted her to find a role where she would feel happy and safe.

[115]He said that he did not seek any support from HR. He said that he wanted the claimant to leave immediately so that she would not be subject to further stress from Ms Gerona. When he subsequently spoke to Ms Gerona about the matter, he said that he told her that another person had gone and was now stressed; he mentioned her behaviour – her hostility and outbursts of emotion and said that she needed to be very careful. If the matter escalated, she could potentially be in trouble.

[116]Mr Polines told the Tribunal that it was really disappointing but ‘these things do happen’. He understood why the claimant was stressed but he saw it as a choice between his temporary and permanent staff. If the claimant stayed in pre admissions, she would have to continue to work with Ms Gerona and Ms Gerona’s emotions might get the better of her again. He could not assure the claimant that this would not happen again.

[117]We noted that Mr Polines characterised the incidents between the claimant and Ms Gerona as ‘arguments’ but Ms Gerona did not herself describe them in that way. Ms Gerona said that the claimant had never raised her voice with her. He agreed that Ms Gerona had behaved harshly to the claimant on two occasions but not that Ms Gerona had bullied the claimant. He agreed in oral evidence that the claimant’s disability could affect her speed.

[118]When asked by the Tribunal, what he meant by a place which would be safe for the claimant. Mr Polines said he meant safe from everything, a safe environment where she would not be stressed. It was not fair for the claimant to suffer when he agreed that Ms Gerona would always be difficult to deal with. He said that he could potentially have given Ms Gerona a warning if things had progressed.

[119]Both the claimant and Mr Polines remembered that on one occasion when they saw each other on 1 February 2022, Mr Polines was in a meeting / with a patient. Mr Polines thought this was the first time he saw that claimant and that he may have told her to ‘leave’ the meeting. The claimant thought it was the second time she encountered him. This became an issue in evidence because Ms Doran gave evidence that Mr Polines told her that he thought the Case Number: 2204183/2022 30 claimant might have got the wrong end of the stick and that he had not meant she should leave the department, he had simply asked her to leave the room when he was in a meeting. Ultimately, we concluded that differences in recollection were due to common issues with memory and did not reflect significantly on the credibility or reliability of either of the witnesses.

[120]It was clear to the Tribunal that Mr Polines was at this point conveying to the claimant that she should leave pre admissions and find another role. He recognised that Ms Gerona’s behaviour was problematic and was upsetting the claimant but he either would not or could not address it in an appropriate way.

[121]After the claimant left the clinic, Nicole told Mr Polines that the claimant had left before the end of her shift in tears and that she said that she did not wish to work at the pre admissions clinic any more. The claimant said that she had not said that to Nicole, but given that this was the impression the claimant conveyed in her subsequent emails, we thought it likely she had said something to that effect.

[122]At 17:40 on 1 February 2022, Mr Polines emailed Ms Doran: Last year we agreed that Angelah will be redeploy to Pre-admission Clinic because of her back problem and I was honestly delighted as I know her, and I know she works hard. Things have been running very good until very recently, she emailed us both complaining about behaviour of Perry towards her. I only managed to speak with Perry last week Thursday as that was the only time clinic was not busy. I admit Perry is difficult to deal with as myself is having difficulty dealing with her. I have explained the email sent by Angelahand told Perry that her behaviour towards other people is always her downfall. I recognised that Perry can be very rude, abrupt and what comes to her mouth sometimes are not nice. I received another letter from her and again yesterday (31/01) and telling me that she can’t be working anymore from this Sunday. I knew she is working today and it’s a busy day and just looking for a perfect time to talk to her but finally I managed to catch her eventually and asked her to find out when will you be back so we can set up a meeting the three of us. She asked me if I managed to find another person already working this Sunday. I told her no, and she said she will never work again on Sundays. She even said she is not even paid for her Sunday’s work. When in fact she was the one who choose her schedule of work as she is studying. I accommodated it and happy that I don’t need to pay a bank staff on Sunday because she is around. I told her that we will have a meeting and decide what is best for her. I said if she thinks that this place is not healthy for her, we must find another place where she can work, where she will feel happy and safe. Case Number: 2204183/2022 31 I just finished doing telephone assessment when I was told she was in tears, and she left when her shift is not over yet. And said she will not come back to work in the clinic anymore. If that’s what she wanted, then its fine. I am just annoyed that, for someone who welcomed her in my unit, she will leave the work without telling me. And I don’t understand why she is upset. There are only few HCA who does bank in the Pre-admission Clinic coz not all HCA can do bloods and ECG. If I can’t find anyone, I might have to ask Nicole to cancel her annual leave to cover those shifts which is not fair. I also feel terrible that this happens to her , and she became unhappy with the unit because of one staff. She is due to come back on Sat and Sun, but I am sure she will call or message you anytime this week. Please extend my best wishes to her, I am just sad that this end to this. Happy to talk if there is a need to

[123]Also that evening, the claimant emailed Ms Doran: Last Sunday I have emailed Tonee letting him know that I could not cope to work every Sunday anymore, because: Weekends are very busy - and there is a need of two HCAs to help sometimes, and also Perry has rudely told me off to go and find another job if I can not work alone on Sundays, that really putted me off! Tonee was not happy by me removing myself from Sundays and he has told me I must come and work on Sundays as per rota and he could not change It. I have explained again and said that I was very sorry, I did work every weekend since last May, I have done my best as I could but they still were not happy. I have asked again to put me on Tuesdays, Wednesdays and Saturdays instead of all weekend. At that time Tonee replied and stated to me the same words Perry have told me, Tonee told me go back to ward or find another job! Yes, he did said it also to me today! I have asked him to email you what he just told me. He said he will do.I was absolutely shocked, embarrassed and shamed to hear that as I did not expect it from him, as he is a sensible person. After that I felt humiliated, broke down and I had to came home. I am thankful for working there but there is no appreciation or thankfulness from them. I felt used and abused. I know it sounds really dramatic but that it is how I fell there lately. I am very sorry but I can not return to work there anymore. Please let Tonee know that sister please. (p.s: I have to have HR acknowledge about those facts also last Sunday) I am very sorry for this unfortunate. Case Number: 2204183/2022 32

[124]Mr Polines said in evidence that he had tried to ring the claimant and texted her after she walked out. We saw no text message.

[125]The following day, 2 February 2022, Ms Doran sent the claimant a series of text messages saying that she had tried to call her and asking if she was able to speak. The claimant said that she was too upset to speak. Ms Doran said that the claimant should let someone know she was on sick absence. She said that she had spoken with Mr Polines and would be escalating things. If the claimant wanted to speak to HR, she would support her. She was sorry that the claimant had had such an awful time. The claimant said that Mr Polines dismissed her; he had repeated it twice.

[126]Mr Polines and Ms Doran also had a discussion that day and Mr Polines gave Ms Doran the account about asking the claimant to leave the room because he was in a meeting and how he believed she had got the wrong end of the stick.

[127]Ms Doran wrote to Mr Kennedy: Hi I have tried to reach out to Angelah Queroz today following our earlier conversation. I went to speak with Tonee earlier and it’s very sad. Perry ultimately is the root of the problem. I’m slightly hesitant to escalate to Helen (who is covering for JW) as Tonee has had his own running’s that haven’t been productive for the team. Angelah doesn’t want to talk to anyone I have called and been messaging her. She is terribly upset. I have advised if she wants to raise it with HR I would support her and I also advised for her to notify someone of her absence rather than just be uncontactable and absent. Deidre has said there is a HCA vacancy in outpatients which I was going to offer to Angelah but she doesn’t want to talk to anyone.

[128]On 3 February 2022, Ms Doran emailed the claimant the outpatients phlebotomist vacancy, saying ‘Found this…’

[129]The vacancy bulletin for the role said that it had a closing date of 4 January 2022. When further job bulletins were produced during the course of the hearing, it became apparent that the role had originally been advertised from late November 2021. The 4 January date was the original closing date.

[130]The claimant’s evidence was that, because of the January closing date, she did not believe the role was genuinely available when Ms Doran drew it to her attention.

[131]Mr Polines was on leave from 3 to 7 February 2022.

[132]Also that day the claimant emailed Mr Rahunoks in HR: Case Number: 2204183/2022 33 This is Angelah Queroz, HCA from Oncology Ward but redeployed to Pre admissions since last May 2021. I need to let you acknowledge a matter recently occurred at the pre admissions. I wish to notify that Tonee has unfairly Dismissed myself yesterday 1st of February 2022 from Pre Admissions at 4pm. Supported by Nicolle Worell HCA I had to go home in completed distress. As I have mentioned to you on the email (sent to HR) sent last Sunday 25th of January that Perry has told me to go and find another job, so has Tonee repeated the same worlds as Perry yesterday when I kindly informed him that I could not work every weekend anymore but instead I could do Tuesdays, Wednesdays and Saturdays. He said then that ALL he wanted to say to me was to go back to ward or find another job, I could go! He clearly stated it twice. Then I asked him to email Sarah Doran what exactly he told me. He said he would do, but he did not mention exactly what he told me, I was told. Despite my health condition I was able to work in that department and was able to do all the tasks i supposed to do. It happened that I was not well accepted by the Philippine staff specially Perry which has bullied and harassed with saying as mentioned before. I have mentioned also that I have email Tonee informing himself of those but he never replied and he was never interested to put things together and let Perry command as her wish. Finalising all, I have nowhere to return to work as I have been dismissed twice from Pre admissions by telling me to go to ward or find another job, very firmly yesterday Tonee said that as well. Also I am in huge distress now which began just after 12 days of that I had covid and returned to work and Perry kept trying to threatening me saying she will talk to HR about it. I wish this message reaches whom may concern.

[133]Mr Ruhunoks replied: I am really sorry to hear about the situation you found yourself in. My colleague Emily is going to find out more from the parties involved and one of the managers will be in touch with you to discuss this in more detail. Let me reassure you that you have not been dismissed from the organisation but bear with us while we are finding the appropriate manager to investigate this properly and agree the next steps.

[134]On 4 February 2022, the claimant emailed Mr Polines (who was still on leave), copying in Ms Gerona: Case Number: 2204183/2022 34 As per our conversation on last Tuesday February 1st, you have told me that I should go back to the ward or find another job, I could go - you have told me just like Perry's words previously After that, unfortunately it was impossible to continue my work as I was in such distress and I had to come home, so I kindly asked Nicolle to let you know that and she has done so I just wanted to confirm and I am assuming that I should not come back to work on pre admissions as I am not down to work tomorrow 5th as I previously were. So I assumed I am not expected to come to work this weekend as there is staff replaced already and you are fully covered.

[135]Neither Mr Polines nor Ms Geona replied to that email but the claimant logged on to the healthcare roster and saw that her Saturday 5 February 2022 shift had been removed. The following day (5 February 2022), she logged in and saw that her Sunday 6 February 2022 shift had also been removed. Mr Polines told the Tribunal that these shifts were cancelled because the claimant had told Nicole that she was not coming back to the clinic.

[136]It was not clear to us from the evidence which we heard whether it was necessary to cancel the claimant’s shifts to book bank staff to cover. The claimant suggested it was not necessary but we had no clear evidence on the issue. The claimant seemed to have derived from the cancellation of her shifts a message that she had indeed been dismissed. Ultimately we were satisfied that whatever activity was undertaken to cancel shifts or book bank staff was undertaken to make sure there were staff to cover the shifts. 136. On 7 February 2022, the remainder of the claimant’s February shifts were removed from the roster. Mr Polines told the Tribunal that he needed to arrange cover by using bank staff. If the claimant had said she was returning, the bank staff would have been cancelled.

[137]On 7 February 2022, Mr Polines saw the claimant’s email of 4 February 2022. He wrote to Ms Doran I got this email from Angelah which somehow upsets me but not really. She must have taken what I told her in a different context. I will be the last person to tell her to find another job and that she should go back to the ward, me knowing her back problem. I also did not understand that she is suddenly unsure if she will still be needed over the weekend when she was the one telling me she will not work over the weekend. I texted her the day she left, and I asked her to call me back but never heard from her. Do I need to reply on this email or what? Did she not get in touch with you at all As mentioned, her shifts are on Tues Sat and Sun only Case Number: 2204183/2022 35

[138]Also that day the claimant commenced sick leave and contacted her Royal College of Nursing representative who in turn contacted HR.

[139]On 8 February 2022, HR contacted Mr Polines to get an account of what had happened: Mr Polines wrote to Ms Yates in HR: Angelah is an HCA staff working in Oncology Ward. Sarah Doran the Siqter came to me and asked if I have a place for Angelah as she has a back problem. I said I need as much help I can, so I accepted Angelah as a staff being redeploy in Pre-admission clinic. Things are doing well to be honest. She even has a changed of her schedule base on her needs and I welcomed it. Angelah was complaining about one of the senior nurses that’s giving her a bit of stress. The first email happened the 25th of January. ``. I asked the Senior Nurse about it. I must admit that the senior nurse can be difficult to deal with. But Angelah has been here for almost a year now, and this only happened very recently. The senior nurse finds Angelah very slow, but I told the senior nurse that it’s a walk-in service and let the patient wait. No need for unnecessary emotions and stress. Monday the 30th of Jan, I received another email form Angelah and this time telling me that she will not work every Sunday anymore starting the 6th of Feb. I saw her on the 1st, and I told her to speak to Sarah Doran her manager and find out when she is free for all of us to sit down and talk about her situation. I told her that I am not prepared to give her an answer unless we sit down with her manager. I said I don’t know if you will still be here or what but let’s see. In less than an hour, I was told Angelah was in tears and she left and abandoned her post. Because of stress it radiated to her nerved and to her back. I texted her but never got a reply. I send an email to her Sarah Doran the sister about Angelah going home. The 2nd of Feb I had a chat with Sarah and explained the situation. I did not unfairly dismiss Angelah. As I explained to Sarah, I want her to work in a place where she feels she is safe. If the other HCA will not be present on days that they are together coz annual leave or sickness, she will be working still with the same senior nurse. She will feel stress and back problem will happen. I suggested that Angelah can work in Phlebotomy Room as she does take bloods anyway. Angelah emailed me on the 4th and asking if she will still be working on the 5th and even on the 6th, when she herself said she will not be working. Unfortunately, I was on annual leave on the 3rd and 4th, hence I only managed to get her messaged Monday the 7th. I was expecting Angelah would have had discussion with Sarah or vice versa as I informed Sarah of Angela going home. Case Number: 2204183/2022 36 This is basically what transpired. Again, I did not unfairly dismiss her here. She needs a place of work she will feel safe and no stressor considering her back issues.

[140]On 9 February 2022, the claimant’s RCN representative wrote to HR: Thanks for taking the time to speak with me. You asked if I could jot down the main points which in summary are:• Angelah was temporarily redeployed to Pre-Assessment, but with no end date. There was no LT sickness meeting prior to the redeployment to sort out all the formalities

• Staff in Pre-Assessment appear to have become increasingly upset and unfriendly to Angelah over time. Angelah thinks this is due them perceiving her as taking their shifts, in particular weekend shifts, which in turn prevented them and their colleagues/friends from taking bank shifts that attract a higher rate. (It should be noted that Angelah is/was happy to swap shifts and offered to but this was not approved by Tonee – indeed I understand she wasn’t even receiving the higher rate of pay for weekend work, perhaps voluntarily?)

• Over the last 2-3 weeks Perry and Tonee both told Angelah multiple times that she should work elsewhere

• Angelah usually works Tues, Sat and Sun. She was removed from the rota for Sat 5th, Sun 6th and Tues 8th Feb. She emailed Tonee and Perry on Friday 4th to confirm that this was correct but did not receive a response. She therefore did not go into work on those days but was otherwise ready to work Sorry for not getting this to you sooner. Did you discuss with Tonee already? I haven’t been able to get hold of Angelah following our discussion but will come back to you once I have.

[141]On 10 February 2022, the claimant produced a sickness certificate saying that she had work related stress and neuropathic pain. She was signed off work for one month.

[142]Ms Yates that day emailed Mr Kennedy asking him to contact the claimant and establish her current circumstances and make clear she has not been dismissed: I believe this is a result of a breakdown in communication. However, we need to look to rectify this swiftly if possible.

[143]Ms Yates asked if Ms McGarvie, patient safety manager, could investigate the claimant’s unfair dismissal allegation and Ms McGarvie agreed.

[144]On 11 February 2022, Ms Yates chased Mr Kennedy: Please could I ask you to let me know when you have spoken to Angelah. Her trade Union representative has contacted me to advise that she is due to work this weekend and is unclear on the current situation. Case Number: 2204183/2022 37

[145]We saw no evidence that showed Mr Kennedy had tried to get hold of the claimant at this point and there were emails between Ms McGarvie and Ms Yates on 15 February 2022 which suggested that he had not.

[146]On 16 February 2022, Ms Doran telephoned the claimant and left two voice messages. We were provided with transcripts of the messages.

[147]In the first message, Ms Doran said: I'm so angry, I'm really so angry for you. Nobody knows what's going on. I don't expect anybody to call you back today, and I know you don't. You just want the least really done with the hospital as it is. That means what they've put there It means authorised unpaid leave. I've just got off the phone after screaming at Arthur and said this is totally unacceptable. I said I'm being kept out of the loop as her manager. I said, yeah, the people that have been managing her have been treating her like a bit of shit. I said now I'm asking about it, nobody wants to tell me anything. I said if she's if she's off because she feels she's been. Dismissed from work, she should be getting paid until this is resolved.

[148]In her second message, Ms Doran said (with respect to the post in outpatients): When I spoke to Deidre and although you say it's an old post and like I say it was really difficult to hear what you were saying at the time. It's a new post. It is available and they are recruiting into it's the healthcare system post. Although I'm not quite sure how it would work with your hours. Hmm! So you all getting paid. The key message that they want to reinforce is that you haven't been dismissed. There was clearly a massive communication error on Tony’s part, and he's cocked up big time, but I don't know where you wanna go from here and I don't know where we go from here. You haven't been dismissed, so in our eyes you are to come back to work. We want you to come back to work, and if you don't want to be in pre admissions we would look at trying to support you in going somewhere else.

[149]On 17 February 2022, the claimant texted Ms Doran to thank her for the voice messages.

[150]On 23 February 2022, the claimant sent a resignation letter to HR: Please accept this letter as notice of my involuntary resignation from my position as Healthcare Assistant from Oncology Ward upon a verbal constructively dismissal by the Pre Admissions SRN IC Tonee Polines. My last effective day of employment was February 1st of 2022. Case Number: 2204183/2022 38 After 8 dedicated years of my services to Cromwell Hospital, unfortunately I have felt under a rising of pressure which have completely forced me to leave without any notice. I have done all that I could to remain employed at the hospital. I have offered my full services within my capability and capacity, but unfortunately, I was prevented and stopped from continuing with my job. There have been a series of incidents which had restricted myself from performing and pursuing my job which I would like you to know. 1. May 2020 – An accident at Oncology Ward with a very high risk of falls patient which has felt on me. This circumstance has compromised my health condition since and the ability to work at full capacity as I was at the beginning. 2. Twice the hospital representatives have denied the personal injury explaining that there was no evidence of a Datix report recorded that could support the investigation. Angels Naveas have created the Datix report of this accident on 19/06/2020. Upon research, this Datix report could no longer be found. Angels Naveas have created a new retrospective Datix on this accident on 23/11/2021. Unfortunately, this case has to be and it is going forward and will be fully properly investigated. 3. I was sustainably bullied and harassed by some of pre-admission staff. I was compelled to leave my job twice by two members of staff. 4. I was not given any support from Senior Managers to remain employed despite I have asked twice. 5. February 1st I was imposed finally to go and find another job. February 4th, I have asked for confirmation of the removal of the shifts from 5th and 6th, but no reply was given. By February 7th all my shifts were completely removed from the health roster without my permission and consent. A new staff were booked in to replace the shifts. Yes, I have been verbally dismissed then effectively on February 7th I had lost all my job. I have enjoyed all these 8 years at my workplace, specially at the Oncology Ward which I am very fond of! I am grateful that Cromwell Hospital has allowed me to stay all these years. It has given me great experience and knowledge which I hope to use again one day whether back at Cromwell or somewhere else. I am leaving with no other reason apart from pity of all that has happened this way. I sincerely will do all I can to make everything easily and smoothly with grace and peace.

[151]On 24 February 2022, Ms Yates wrote to Mr Kennedy asking him to send this email to the claimant and Mr Kennedy did so: Dear Angelah, I have been notified about your resignation letter. Case Number: 2204183/2022 39 I would like to take this opportunity to clarify that you were not dismissed from your role. I have attempted to contact you on serval [sic] occasions, to discuss this with you. Sarah Doran also contacted you to reassure you that you were getting paid for this period of absence, whilst we resolve things and she reinforced that you had not been dismissed. You have raised some allegations, which are very concerning that I would like the opportunity to investigate. Therefore, can I ask you to consider retracting your resignation. This will allow me to investigate this matter and deliver an outcome to you. Please take the time to reconsider this and let me know by Monday what you wish to do.

[152]On 28 February 2022, Mr Kennedy obtained a mobile phone number for the claimant and they had a phone conversation in which the claimant agreed to retract her resignation whilst Mr Kennedy investigated the situation. The claimant put in a grievance statement.

[153]On 10 March 2023, the claimant emailed Mr Kennedy, having not heard anything further in the intervening period. As it happened this was the date Mr Kennedy’s employment with the respondent ended, he having previously given notice. The following day, 11 March 2022 (a Friday), the claimant received an automatic reply message when she emailed Mr Kennedy. That message informed her that Mr Kennedy had left the organisation.

[154]The claimant then wrote to HR at 15:22 to ask who was looking after her case. She received an out of office message from Mr Rahunoks saying that he was back on 14 March 2022.

[155]The claimant emailed Mr Rahunoks again on the evening of Sunday 13 March 2022.

[156]On Tuesday 15 March 2022 at 16:59, Mr Rahunoks wrote to the claimant: I am sorry to hear that Brian has not provided any feedback in relation to this. I have reached out to the Modern Matron that covers pre-assessment service to discuss as it is likely that she will take this over. Just need to discuss the background with her as she came back from annual leave. Brian mentioned to me that you were on annual leave. Would you confirm what dates you have taken as annual leave please?

[157]On the morning of 17 March 2023, the claimant sent a letter resigning with immediate effect: I am here to express my disappointment once again at how the organisation has dealt with my grievance, where I stated that I felt discriminated against bullied and victimised. Case Number: 2204183/2022 40 After I resigned previously due to the above behaviour, the organisation requested that I withdraw my resignation so that it could investigate my grievance. However, I have since learned that the person who was going to deal with my grievance (Brian Kennedy) has left, without me being informed. The organisation knew he was leaving yet still assigned him to deal with my grievance, thereby knowingly delaying the investigation and resolution of my concerns, though failing again. To this date, I have only been notified of a potential replacement to look into my grievance. I feel massively let down and have completely lost my trust in the hospital. I feel there is no other choice but to resign. Therefore, I am hereby resigning today with immediate effect. I would like to request that the investigation is still carried out. I will make myself available to cooperate with the investigation, and would like to be informed in writing of the outcome.

[158]Shortly after that, Ms McGarvie wrote to the claimant: I am the interim Matron for Surgery and have stepped in as Brian has now left I would very much like to chat with you about the events leading to the current situation I have been trying to call you on two mobile but have had no luck so I hope you don’t mind me reaching out via your personal email I have [number] and [number] I hope to chat to you soon – I am not at work tomorrow or Monday but am at work today and then from next Tuesday

[159]There was other documentary evidence that Ms McGarvie had tried to telephone the claimant over the course of 16 March 2023. There was some confusion about what was her correct mobile number. The claimant said that she had no calls on the 16th but some on the 17th. Ultimately we accepted that if Ms McGarvie had tried to telephone her, the claimant had not been aware that it was her telephoning and had not picked up the phone. They spoke after Ms McGarvie sent her email on 17 March 2022.

[160]Ms McGarvie began interviewing witnesses for the claimant’s grievance. She interviewed Ms Doran on 22 March 2022 and Ms Gerona on 23 March 2022.

[161]Ms McGarvie wrote to the claimant summarising her understanding of the claimant’s grievance on 23 March 2022. The letter was set via email on 25 March 2022. In that email, Ms McGarvie told the claimant that she was aiming to have the report ready by the end of the following week. She told the claimant she was happy to explore her further employment with the respondent. Summary of your grievance Case Number: 2204183/2022 41 At the grievance meeting you confirmed the areas of concern were as follows: Lack of clarity about your permanent position and the location you were based in. That you understand you were verbally dismissed from your position . That you have been subject to bullying and harassment by staff That you feel you have not been supported by senior managers I would like to clarify that Brian Kennedy, Modern Matron for Oncology, was investigating your concern as a lead for Oncology Service and he was trying to reach out to you on a few occasions to have a conversation about your return to work and look into your concerns, however, you did not pick up your phone. He had about a month before his last day of work with us at the time and therefore it was reasonable to expect that he could conclude the investigation timely, which unfortunately did not happen. I am informed that you did speak to the Matron for Oncology on the 28th February and that you did retract your then resignation abut that you did not wish to return to work . at that time you were not able to describe anything that would assist you in returning to work. Following our conversation, I have arranged to meet with the following staff Sarah Doran , Perry Gerona and Tonee Polines to investigate your concerns and I will provide you with feedback once the investigation has been concluded. I would very much like to put this right for you and retain you in the job in a location that would be suitable for your skills.

[162]The claimant replied on 26 March 2022: As I have mentioned to you and Brian before, unfortunately I am not able to continue working at hospital any longer. The frustration is huge and it has been since I came back from my third long term sickness, May 2021 - as I have been waiting and have asked many times for a permanent transfer somewhere else but it was not approved. Now the hospital is asking me to continue working after all of this very embarrassing and humiliating situation I've been trough, it is impossible, specially people there might be thinking I must have done something very wrong to be asked to leave and the shifts being removed out of the rota. I have said I am very fond of Cromwell Hospital, I've been working there long time, but I really felt ignored and not longer needed to be their staff as the transfer to other department was not approved, as I am not able to work with manual handling anymore. I feel their offer to continue employed it is not genuine as I waited for it long time. I'm sorry for been honest but that is how it appears to me Case Number: 2204183/2022 42 Following February 1st when Tonee told me go and find job somewhere, I went home straight after in shock and I was totally unable to speak for a week with anyone from the hospital. Sarah texted me and I replied to her, I couldn't talk at all. I refused to speak with the Oncology manager Brian Kennedy because he has always, always ignored me, he has never said hi once when he passes. I emailed him once and I introduced myself and congratulated him to be our manager, and explained a little about my situation, he never replied! So when everything went on the floor, what he wanted to speak with me for ? Too late, that's the point. But I have spoken to him once on 28th of February and agreed with his request to withdraw the resignation as he wanted to investigate it properly, but unfortunately his notice ended few days later. My condition is a very intriguing kind of which include the nerve system, at any kind of stress or lifting aggravate and triggers the pain back - which is Neuropathic Pain. - followed by trauma to the nerve. I must be away of much stress as possible to have some quality of life still. Thank you for your kindness and time. I can talk to you if you have any questions, just let me know

[163]No one from the respondent then contacted the claimant until she wrote to ask about the report on 26 April 2022. On 27 April 2022, she contacted Mr Rahunoks and he replied. Ms McGarvie wrote to say that the report was with HR and was being reviewed.

[164]On 7 June 2022, Ms McGarvie wrote to the claimant to say that the report was finalised and with an HR colleague; she was hoping to share the final report that week.

[165]The claimant’s RCN representative chased for the report on 15 and 20 June 2022 and it was finally sent to the claimant by email on 21 June 2022. We note that in her interview for the grievance, Ms Doran had said that it was clear by August 2021 that the claimant would not be fit to return to the ward.

[166]The claimant’s complaints were not upheld although Ms McGarvie found that there was poor behaviour from Ms Gerona on more than one occasion. The report contained the following section: The following policies have been consulted and referenced to in regard to the alleged behaviours as part of this investigation – all of which are available at https://teams.bupa.co.uk/sites/manage-my-team/SitePages/ManageMyTeam.aspx 1) Grievance Policy 2) Disciplinary Policy 3) People – appendix to Disciplinary Policy 4) How to manage disciplinaries 5) Disciplinary FAQs Case Number: 2204183/2022 43 6) Potential Conduct rules breach – process flow chart

[167]We note that there was no reference to the bullying and harassment policy.

[168]The claimant subsequently submitted a grievance appeal which was heard by Ms Crichton. She commenced Early Conciliation on 29 April 2022, received her EC certificate on 10 June 2022 and commenced proceedings on 24 June 2022. Evidence about effect of her disabilities on claimant’s speed

[169]The claimant told us in evidence that she worked more slowly due to her disability. She said she if she turned suddenly she would get pain and that if she was under pressure to work more quickly that would exacerbate her pain. We note however that there was no suggestion in the claim form that the claimant was slower in her work due to her disability and that the medical evidence did not seem to support the proposition that the claimant would be slow performing tasks which were not outside of her abilities, such as manual handling.

[170]Ms Gerona’s evidence was that the issue was about the claimant chatting to patients to an unnecessary extent, which was something she would become aware of when she entered the room the claimant was working in to hand her notes for the upcoming patient.

[171]The work in the pre admissions clinic did not involve heavy lifting. We heard that the claimant had a reasonable opportunity to take breaks between patients.

[172]We were not satisfied on the basis of the evidence we had that any perceived slowness by the claimant in carrying out duties in the pre admissions clinic was caused by her disability. Although Mr Polines in evidence agreed that her slowness could be due to her disability, this did not seem to be a correlation anyone including the claimant, drew at the time. Law Harassment

Law

[173]Under s 26 Equality Act 2010, a person harasses a claimant if he or she engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of(i) violating the claimant’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding whether conduct has such an effect, each of the following must be taken into account: (a) the claimant’s perception; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect.

[174]By virtue of s 212, conduct which amounts to harassment cannot also be direct discrimination under s 13. Case Number: 2204183/2022 44

[175]In Richmond Pharmacology Ltd v Dhaliwal

[2012] IRLR 336

, EAT, Underhill J gave this guidance in relation to harassment in the context of a race harassment claim: ‘an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so…Not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other discriminatory grounds) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’

[176]An ‘environment’ may be created by a single incident, provided the effects are of sufficient duration: Weeks v Newham College of Further Education EAT 0630/11. Discrimination arising from disability

[177]In a claim under s 15, a tribunal must consider: - Whether the claimant has been treated unfavourably; - Whether the unfavourable treatment is because of something arising in consequence of the employee’s disability; - Whether the employer knew, or could reasonably have been expected to know, that the employee or applicant had the disability relied on.

[178]There are two aspects to causation: - Considering what caused the unfavourable treatment. This involves focussing on the reason in the mind of the alleged discriminator; - Determining whether that reason was something arising in consequence of the claimant’s disability. That is an objective question and does not involve Case Number: 2204183/2022 45 consideration of the mental processes of the alleged discriminator: Pnaiser v NHS England and anor

2016 IRLR 170

, EAT.

[179]An employer has a defence to a claim under s 15 if it can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim.

[180]Assessing proportionality involves an objective balancing of the discriminatory effect of the treatment and the reasonable needs of the party responsible for the treatment: Hampson v Department of Education and Science

[1989] ICR 179

, CA.

[181]If there is a link between reasonable adjustments said to be required and the disadvantages or detriments being considered in the context of indirect discrimination and/or discrimination arising from disability, any failure to comply with the reasonable adjustments duty must be considered ‘as part of the balancing exercise in considering questions of justification’: Dominique v Toll Global Forwarding Ltd EAT 0308/13. The EAT commented that it was difficult to see how a disadvantage which could have been alleviated by a reasonable adjustment could be justified. Failure to comply with a duty to make reasonable adjustments

[182]Under s 20 Equality Act 2010, read with schedule 8, an employer who applies a provision, criterion or practice (‘PCP’) to a disabled person which puts that disabled person at a substantial disadvantage in comparison with persons who are not disabled, is under a duty to take such steps as are reasonable to avoid that disadvantage. Section 21 provides that a failure to comply with a duty to make reasonable adjustments in respect of a disabled person is discrimination against that disabled person.

[183]In considering a reasonable adjustments claim, a tribunal must consider: - The PCP applied by or on behalf of the employer or the relevant physical feature of the premises occupied by the employer; - The identity of non-disabled comparators (where appropriate) and - The nature and extent of the substantial disadvantage suffered by the claimant. Environment Agency v Rowan

[2008] ICR 218

, EAT.

[184]The concept of a PCP does not apply to every act of unfair treatment of a particular employee. A one-off decision can be a practice, but it is not necessarily one; all three words connote a state of affairs indicating how Case Number: 2204183/2022 46 similar cases are generally treated or how a similar case would be treated if it occurred again: Ishola v Transport for London

[2020] EWCA Civ 112

[185]A claimant bears the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred, in the absence of an explanation, that the duty has been breached. There must be evidence of some apparently reasonable adjustment which could be made, at least in broad terms. In some cases the proposed adjustment may not be identified until after the alleged failure to implement it and this may exceptionally be as late as the tribunal hearing itself: Project Management Institute v Latif

[2007] IRLR 579

, EAT. There is no specific burden of proof on the claimant to do more than raise the reasonable adjustments that he or she suggests should have been made: Jennings v Barts and the London NHS Trust EAT 0056/12. The burden then passes to the respondent to show that the disadvantage would not have been eliminated or reduced by the proposed adjustment and/or that the adjustment was not a reasonable one.

[186]By section 212(1) Equality Act 2010, ‘substantial’ means ‘more than minor or trivial’.

[187]When considering what adjustments are reasonable, the focus is on the practical result of the measures that can be taken. The test of what is reasonable is an objective one: Smith v Churchills Stairlifts plc

[2006] ICR 524

, CA. The Tribunal is not concerned with the processes by which the employer reached its decision to make or not make particular adjustments nor with the employer’s reasoning: Royal Bank of Scotland v Ashton

[2011] ICR 632

, EAT.

[188]Although the Equality Act 2010 does not set out a list of factors to be taken into account when determining whether it is reasonable for an employer to take a particular step, the factors previously set out in the Disability Discrimination Act 1995 are matters to which the Tribunal should have regard: - The extent to which taking the step would prevent the effect in relation to which the duty was imposed - The extent to which it was practicable for the employer to take the step - The financial and other costs that would be incurred by the employer in taking the step and the extent to which it would disrupt any of its activities - The extent of the employer’s financial and other resources - The availability to the employer of financial or other assistance in respect of taking the step - The nature of the employer’s activities and the size of its undertaking - Where the step would be taken in relation to a private household, the extent to which taking it would(i) disrupt that household or

(ii) disturb any person residing there Case Number: 2204183/2022 47 This is not an exhaustive list. Constructive dismissal

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

[190]It is established law that(i) conduct giving rise to a constructive dismissal must involve a fundamental breach (or breaches) of contract by the employer;

(ii) the breach(es) must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning.

[191]If a fundamental breach is established the next issue is whether the breach was an effective cause of the resignation, or to put it another way, whether the breach played a part in the dismissal. In United First Partners Research v Carreras

2008 EWCA Civ 1493

the Court of Appeal said that where an employee has mixed reasons for resigning, the resignation would constitute a constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons.

[192]In this case the claimant claims breach of the implied term that the employer should not, without reasonable and proper cause, conduct itself in a way that is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence that exists between an employee and her employer. Both limbs of that test are important. Conduct which destroys trust and confidence is not in breach of contract if there is reasonable and proper cause.

[193]It is irrelevant that the employer does not intend to damage this relationship, provided that the effect of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it: Woods v Car Services (Peterborough) Limited

[1981] ICR 666

. It is the impact of the employer’s behaviour (assessed objectively) on the employee that is significant - not the intention of the employer (Malik v BCCI

[1997] IRLR 462

. It is not however enough to show that the employer has behaved unreasonably although “reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach”: Buckland v Bournemouth University Higher Education Corporation

[2010] IRLR 445

[194]The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In Omilaju v Waltham Forest LBC [2005] ICR the Court of Appeal said that the final straw may be relatively insignificant but must not be utterly trivial: “The test of whether the employee's trust and confidence has been undermined is objective.” Case Number: 2204183/2022 48

[195]A breach of the implied term of trust and confidence is necessarily a repudiatory breach of contract: Ahmed v Amnesty International

[2009] ICR 1450

[196]In Kaur v Leeds Teaching Hospitals NHS Trust

2018 EWCA Civ 978

the Court of Appeal listed five questions that it should be sufficient ask in order to determine whether an employee has been constructively dismissed;a. What was the most recent act (or omission) on the part of the employer which the employee says cause, or triggered, his or her resignation?

b. Has he or she affirmed the contract since that act?

c. If not, was that act (or omission) by itself a repudiatory breach of contract?

d. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which viewed together amounted to a (repudiatory) breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of the previous possible affirmation).

e. Did the employee resign in response (or partly in response) to that breach?

[197]Employers have a duty to take reasonable care to ensure the safety of their employees whilst at work.

[198]It is of course somewhat artificial to require an employer who denies having dismissed an employee to show a reason for the dismissal. The Court of Appeal addressed this problem in Berriman v Delabole Slate Limited

[1985] ICR 546

where the Court said that, in the case of a constructive dismissal, the reason for the dismissal is the reason for the employer’s breach of contract that caused the employee to resign. This is determined by analysis of the employer’s reasons for so acting, not the employee’s perception (Wyeth v Salisbury NHS Foundation Trust UK

EAT/061/15

). Direct disability discrimination

[199]In a direct discrimination case, where the treatment of which the claimant complains is not overtly because of the protected characteristic, the key question is the “reason why” the decision or action of the respondent was taken. This involves consideration of mental processes of the individual responsible; see for example the decision of the Employment Appeal Tribunal in Amnesty International v Ahmed

[2009] IRLR 884

at paragraphs 31 to 37 and the authorities there discussed. The protected characteristic need not be the main reason for the treatment, so long as it is an ‘effective Case Number: 2204183/2022 49 cause': O'Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor

[1996] IRLR 372

[200]This exercise must be approached in accordance with the burden of proof provisions applying to Equality Act claims. This is found in section 136: “(2) if there are facts from which the Court could decide, in the absence of any other explanation, that person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) but subsection (2) does not apply if A shows that A did not contravene the provision.”

[201]Guidelines were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

regarding the burden of proof (in the context of cases under the then Sex Discrimination Act 1975). They are as follows:(1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word 'could' in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA Case Number: 2204183/2022 50 from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

[202]We bear in mind the guidance of Lord Justice Mummery in Madarassy, where he stated: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’ The ‘something more’ need not be a great deal; in some instances it may be furnished by the context in which the discriminatory act has allegedly occurred: Deman v Commission for Equality and Human Rights and ors

2010 EWCA Civ 1279

, CA.

[203]The tribunal cannot take into account the respondent’s explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others

[2006] IRLR 748

; Madarassy v Nomura International plc

[2007] IRLR 246

, CA.) Case Number: 2204183/2022 51

[204]The distinction between explanations and the facts adduced which may form part of those explanations is not a watertight division: Laing v Manchester City Council and anor

[2006] ICR 1519

, EAT. The fact that inconsistent explanations are given for conduct may be taken into account in considering whether the burden has shifted; the substance and quality of those explanations are taken into account at the second stage: Veolia Environmental Services UK v Gumbs EAT 0487/12.

[205]In Chief Constable of Kent Constabulary v Bowler EAT 0214/16, Mrs Justice Simler said: ‘It is critical in discrimination cases that tribunals avoid a mechanistic approach to the drawing of inferences, which is simply part of the fact-finding process. All explanations identified in the evidence that might realistically explain the reason for the treatment by the alleged discriminator should be considered. These may be explanations relied on by the alleged discriminator, if accepted as genuine by a tribunal; or they may be explanations that arise from a tribunal’s own findings.’

[206]Although unreasonable treatment without more will not cause the burden of proof to shift (Glasgow City Council v Zafar

[1998] ICR 120

, HL), unexplained unreasonable treatment may: Bahl v Law Society

[2003] IRLR 640

, EAT.

[207]We remind ourselves that it is important not to approach the burden of proof in a mechanistic way and that our focus must be on whether we can properly and fairly infer discrimination: Laing v Manchester City Council and anor

[2006] ICR 1519

, EAT. If we can make clear positive findings as to an employer’s motivation, we need not revert to the burden of proof at all: Martin v Devonshires Solicitors

[2011] ICR 352

, EAT.

[208]In some cases, the question of whether there is ‘less favourable treatment’ is so intertwined with ‘the reason why’ that a sequential analysis can give rise to needless problems and should be dispensed with: Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL. Time limits

[209]Under s 123 Equality Act 2010, discrimination complaints should be presented to the Tribunal within three months of the act complained of (subject to the extension of time for Early Conciliation contained in s 140B) or such other period as the Tribunal considers just and equitable. The onus is on a claimant to convince the tribunal that it is just and equitable to extend the time limit: Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, CA.

[210]Under s 123(3), conduct extending over a period is to be treated as done at the end of the period. Case Number: 2204183/2022 52 Submissions

[211]We had written and oral submissions from both parties and we took these carefully into account. We refer to them below only so far as is necessary to explain our conclusions.

Conclusions

[212]We would comment that the representative who assisted the claimant in pleading her case such that every allegation was presented as multiple causes of action did no favours to the Tribunal, which has had to deliberate about dozens of different causes of action, even where some matters obviously did not sensibly fall under a particular head of claim. This wastes Tribunal time and delays the production of judgments. 3. Constructive dismissal3.1 Was the claimant constructively unfairly dismissed within the meaning of section 95(1)(c) of the Employment Rights Act 1996. Issue:

3.2 In the circumstances, did any or all of the following alleged conduct constitute an actual or anticipatory breach of the implied term of trust and confidence by the respondent: 3.2.1 failing to arrange a suitable redeployment opportunity for the claimant on a permanent basis and/or allowing the claimant to continue with her redeployment in the Pre-Assessment Clinic uninterrupted;

[213]The respondent argued that occupational health had not advised that the claimant needed a permanent redeployment opportunity and therefore there could have been no failure by the respondent to provide one.

[214]This was an approach to the case which only arose in submissions. It was not put to the claimant and we did not consider it was properly supported by the evidence. We note that Dr Hampapur’s recommendations were made in a context where he had said: it is possible that her symptoms may improve with some coping strategies and she should be able to undertake physically demanding tasks in the future. However, it is well known that patients with fibromyalgia make little improvement despite various interventions. We did not read this as suggesting that Dr Hampapur believed it was at all likely that the claimant’s symptoms would improve to any great extent.

[215]Ms Doran, the manager who was responsible for the claimant, did not give any evidence to the effect that the respondent took the view that the claimant did not require permanent redeployment. Ms Doran was a line manager who knew the claimant well and also knew the work to be done on the ward well. It Case Number: 2204183/2022 53 was obvious that she took the view that the claimant was not capable of returning to full duties on the ward in any reasonable future time scale and required a permanent redeployment opportunity. The claimant’s consultant, Dr Almahdi, described the problem as being longstanding and it is clear that the respondent understood the suggestion by the occupational health consultant that the claimant might be able to return to ‘less physically demanding ward work’ as not something likely to happen in a period of time which would obviate the need for her to be permanently redeployed, even if ‘less physically demanding ward work’ was something which existed. We heard no evidence to suggest it did.

[216]There was no evidence that there was any suitable permanent redeployment opportunity available prior to November 2021 when the outpatients vacancy was advertised.

[217]The respondent did not seem to have any good system in place for identifying redeployment opportunities for the claimant. There appears to have been no one in HR keeping an eye on the situation and Ms Doran seems to have understandably taken her eye off the ball at this stage. Ms O’Sullivan said that the claimant would be alerted to vacancies which became available in outpatients, but no one followed through on that undertaking. We found that no one told the claimant in terms that it was her responsibility to monitor the vacancy lists. We considered that there was a culpable failure by the respondent from late November 2021 to alert the claimant to the vacancy and consider her suitability for the role.

[218]The further allegation about not allowing the claimant to continue to work in the pre admissions clinic unhindered is considered under the overlapping allegations below. We accepted the respondent’s evidence that there was unlikely to be a permanent role for the claimant in pre admissions but the issue of whether she was effectively forced out of her temporary role by her treatment by other staff is dealt with under other allegations below. Issue 3.2.2 failing to respond to or acknowledging the claimant’s enquiries and alleviating her concerns about the future of her employment and the unreasonable conduct of her colleagues directed at her;

[219]There were two failures to respond to the claimant’s emails in 2021. The email of 27 November 2021 to HR was about the claimant’s pay and grade. The 7 December 2021 email to Mr Kennedy was about pay but also about the future of the claimant’s employment.

[220]By the time the claimant sent this email, there was a permanent redeployment opportunity the claimant should have been considered for. Case Number: 2204183/2022 54

[221]The respondent suggested in submissions that the claimant was addressing her enquiries to the wrong people, however we could see nothing wrong with her escalating the issue to Mr Kennedy. He could have referred her back to Ms Doran and /or asked Ms Doran to investigate the situation. He did neither of those things. We considered that the failure to engage with the claimant’s situation at this point was unreasonable. These were failures which we did not conclude on their own would have amounted to a breach of the implied term of trust and confidence, however we had to weigh them up with other matters.

[222]In terms of whether the respondent failed to engage with the claimant about the unreasonable conduct of her colleagues towards her:a. In terms of the claimant raising concerns about Ms Gerona’s behaviour in October 2021, we considered that the feedback by Mr Polines was inadequate. He did not tell the claimant that he had spoken to Ms Gerona and he simply told the claimant not to take her behaviour personally;

b. In relation to the incident with Jocelyn in November 2021, Mr Polines seems to have dealt with the matter in a way which prevented further incidents with Jocelyn. We did not have sufficient evidence to conclude that there was a material failure by Mr Polines to deal properly with this matter;

c. The behaviour of Ms Gerona on 11 January 2022 seems to have been reported after the incident on 23 January 2023;

d. So far as the 23 January 2023 incident is concerned, it seemed to us that although Ms Doran promptly sought to arrange a meeting, so far as the claimant was concerned there was simply no response at all from Mr Polines.

[223]The claimant then came up with a plan to stop working Sundays to avoid Ms Gerona. When she spoke with Mr Polines about that plan on 1 February 2022, his response was to say that she should leave the clinic to be safe. He had effectively minimised what was going on by describing it as ‘arguments’ despite the fact that he was aware of Ms Gerona’s behaviour. He did nothing at all to alleviate her concerns; he simply suggested she would have to leave in circumstances where she was not fit to return to ward work and no one had drawn to her attention any other redeployment opportunity.

[224]We concluded that there were culpable failures by the respondent under this head. Issue 3.2.3 failing to take any action to prevent the claimant from being bullied and harassed by her colleagues, in particular Ms Gerona, and did this create an intolerable work environment for her; Case Number: 2204183/2022 55

[225]As we have discussed under the previous allegation, we did not consider that enough action was taken to deal with Ms Gerona’s treatment of the claimant In January / February 2022. In circumstances where Mr Polines considered that the claimant was ‘unsafe’ due to the treatment of Ms Gerona, he took no disciplinary or other action to prevent Ms Gerona from behaving in that way or to remove her from the claimant’s workplace whilst the matter was investigated. Issue 3.2.4 failing to take any action to prevent the claimant from being subjected to Ms Gerona’s unreasonable conduct, in particular her micro-management of the claimant;

[226]The only ‘micro management’ which was raised in evidence was Ms Gerona’s injunctions to the claimant to speed up. Mr Polines did tell Ms Gerona in October 2021 that there was no need for speed and that patients could wait if necessary. Ms Gerona told the Tribunal that she continued to take the view that the HCAs should hurry up if the service was busy and so would continue to tell them to speed up.

[227]Ultimately, in January / February 2022, Mr Polines seems to have thrown up his hands about addressing Ms Gerona’s behaviour and to that extent we considered there was a failure under this head. Issue: 3.2.5 failing to address the claimant’s request to change her shift patterns to Tuesdays, Wednesdays and Saturdays and/or accommodating any requests to swap shifts;

[228]The issue that arose in January / February 2022 was fundamentally about whether the claimant could tolerate working with Ms Gerona. Although the solution the claimant came up with was to switch to a Wednesday shift, we accepted that there was no useful role for her to perform on a Wednesday in the pre admissions clinic. We did not consider that it was culpable of the respondent not to accommodate this request, The failure was the failure to properly address Ms Gerona’s treatment of the claimant. Issue: 3.2.6: placing unreasonable demands on the claimant by expecting her to carry out additional tasks, such as phlebotomy, without additional pay and support on Saturdays and Sundays, days of heavier than usual workload; Case Number: 2204183/2022 56

[229]The evidence we had was that the claimant had chosen those shifts as the shifts which suited her out of the days the pre admissions clinic required an HCA. Working those shifts fell within the terms of her contract. We had no evidence that performing phlebotomy, which had always formed part of the claimant’s job description, entitled the claimant to be paid at a higher rate. The documents we had did not suggest that there were different bandings for HCAs with different pay entitlements.

[230]The claimant pointed to the fact that bank staff were paid more for working weekends, however that is characteristic of bank working. Permanent staff have other benefits.

[231]We did not consider that the demands were unreasonable or that this matter contributed to a breach of the implied term of trust and confidence. Issue: 3.2.7 subjecting the claimant to the events of 1 February 2022 by Mr Polines, which the claimant will allege left her feeling distressed and humiliated to the extent she was unable to remain at work and complete her shift;

[232]We considered that Mr Polines had culpably mishandled the situation on 1 February 2022 for the reasons we have outlined above. Issue: 3.2.8 subjecting the claimant to repeated remarks from colleagues, in particular Ms Gerona and Mr Polines, asking her to return to the Oncology Ward;

[233]We concluded that both Ms Gerona and Mr Polines had suggested that the claimant should or would have to go back to the oncology ward and that this behaviour towards the claimant was blameworthy. 3.2.9 removing the claimant from her scheduled shifts without any explanation or discussion with her, and whether this left her to consider herself dismissed from her employment;

[234]The situation after the claimant left work on 1 February 2022 was, we found, somewhat confused. The claimant had said that she was not coming back and there would have been a need to make sure her shifts were covered. Although Mr Polines and Ms Gerona did not inform the claimant of what they were doing, Ms Doran was seeking to have a conversation with the claimant but the claimant was too upset to speak with her.

[235]It seemed to us that although the claimant was upset and confused, Ms Doran was doing what she reasonably could to try and tell her that she was not dismissed. Ms Doran was the right person to attempt to speak to the claimant given that the claimant was upset with Mr Polines and Ms Gerona because of their behaviour. It was reasonable for the respondent to engage Case Number: 2204183/2022 57 bank staff to cover the claimant’s shifts. Looked at from another angle, they had reasonable and proper cause to do so. Issue: 3.2.10 failing to investigate and address the claimant’s concerns in a timely manner despite asking her to retract her resignation on more than one occasion;

[236]Although we were not concerned with the delay after the claimant’s second resignation, we note that it was extensive and not explained to the claimant or to the Tribunal.

[237]We considered that the delay in telling the claimant that there would have to be a new investigator because Mr Kennedy was leaving the respondent’s employment was very poor. It must have been fairly obvious by the time Mr Kennedy contacted the claimant that he would not be available to see the investigation through. No one contacted the claimant to tell her that was the situation and she only found out because she chased Mr Kennedy when she heard nothing from him.

[238]The failures are hard to understand in circumstances where the respondent had persuaded the claimant to retract her resignation but it would have been obvious that her trust in the respondent had been significantly damaged. Issue: 3.2.11 assigning Mr Kennedy to investigate her grievance in the full knowledge that he was leaving his employment within a short period and failing to inform the Claimant of this fact.

[239]As we have observed under the previous head, this was a significant and damaging failure. Issue: 3.3 Were the following 3 terms breached? (i) The implied term of mutual trust and confidence;

[240]Looking at the matters we found made out in the round, we considered that they were likely to destroy or seriously damage the relationship of trust and confidence.

[241]We bore in mind that the claimant was a disabled employee in a precarious position. She did not have a permanent role and had been told that she faced dismissal if a permanent role was not found for her. She faced hostile behaviour from Ms Gerona in her role in the pre admissions clinic which was not properly addressed by Mr Polines, who ultimately left the claimant in the position of having to leave the pre admissions clinic to be ‘safe’. The respondent then entirely dropped the ball in the way it dealt with the claimant’s concerns after she retracted her resignation. Case Number: 2204183/2022 58

[242]We could see no reasonable or proper cause for this behaviour. Issue: (ii) The duty to provide a safe working environment;

[243]Although arguably, the environment was ‘unsafe’ for the claimant because of the hostile behaviour of Ms Gerona, this seemed to us a less good fit for the facts we have found than breach of the implied term of trust and confidence. We did not have any clear evidence that the respondent would or should have been aware of the likelihood of harm to the claimant’s health and were not persuaded there was any breach of this implied term. Issue: (iii) The duty to provide reasonable support.

[244]We agreed with the respondent’s submission that there is no such implied term in the authorities. It seemed to us to be too vague and, insofar as such a duty exists, it is properly to be regarded as a facet of the implied term of trust and confidence. Issue: 3.4 Were any of the alleged repudiatory breach(es) the reason why the claimant decided to terminate her employment?

[245]We concluded that the matters which we have identified as being a breach of the implied term of trust and confidence were also the primary reasons for the claimant’s resignation. We accept that the claimant was not aware at the time she resigned that the respondent had failed to redeploy her to the outpatients role in November 2021 so this could not have formed part of her reasons for resigning, but the other matters together were a breach of the implied term of trust and confidence which the claimant did know about and which were a substantial cause of her resignation. Issue: 3.5 If so, did the claimant delay in resigning and thereby affirm her contract of employment?

[246]We concluded that nothing the claimant did could properly be regarded as affirming her contract. In the period when she retracted her resignation, she brought a grievance about the matters for complaint and made it very plain that she was not waiving the breach.

[247]It follows that we found the claimant was constructively dismissed. Issues 4. Ordinary unfair dismissal – section 98 ERA 19964.1 If the claimant was dismissed, what was the reason for the dismissal? Case Number: 2204183/2022 59

4.2 Is the reason a potentially fair reason within the meaning of sections 98(1) and (2) ERA 1996?

[248]There was no potentially fair reason for the dismissal and we therefore concluded that the dismissal was unfair. 5. Disability related harassment (section 26 EqA) Issues5.1 Did any of the following amount to unwanted conducted by the respondent?5.1.1 The matters listed at 3.2 above.

5.1.2 The alleged constructive dismissal.

5.2 If so, was the conducted related to the claimant’s disability?

5.3 If so, did the conduct have the purpose of violating the claimant's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for her?

5.4 If not, did the conduct have the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her?

[249]We considered each of the factual allegations in turn. Issue: failing to arrange a suitable redeployment opportunity for the claimant on a permanent basis and/or allowing the claimant to continue with her redeployment in the Pre-Assessment Clinic uninterrupted;

[250]We considered that this was unwanted conduct. We did not consider that it had the proscribed purpose. We had no evidence that anyone in management or HR had anything other than benign intentions. Nor did we conclude that the conduct had the proscribed effect, although we accepted that these were matters of significant concern to the claimant and that the lack of job security caused her great anxiety.

[251]We considered the issue about the claimant not remaining in the pre assessment clinic under other overlapping allegations of harassment below. Issue: failing to respond to or acknowledging the claimant’s enquiries and alleviating her concerns about the future of her employment and the unreasonable conduct of her colleagues directed at her;

[252]We accepted that all of this treatment was unwanted by the claimant. Case Number: 2204183/2022 60

[253]So far as the failures by Mr Kennedy and HR to respond to correspondence in late 2021 were concerned, we had no evidence at all that would lead us to conclude that there was a proscribed purpose. The more natural inference to draw was that people were busy and the failure to respond was an oversight.

[254]Although we understood that the failure to respond would have caused the claimant to be concerned, it seemed to us it would cheapen the words of the section to suggest that failures of this sort could reasonably have the proscribed effect, at least in these circumstances.

[255]We considered whether failures by Mr Polines to feed back to the claimant had the proscribed purpose or effect. We accepted that Mr Polines’ intentions towards the claimant were not to subject her to the prohibited environment or to violate her dignity. We accepted that what Ms Gerona said in October 2021 and January 2022 created a hostile and humiliating environment for the claimant (and that it was reasonable for it to have that effect) and that Mr Polines failed to ameliorate that situation rather than creating the environment himself.

[256]We were not persuaded that Mr Polines’ treatment of the claimant was related to her disability. We considered that Mr Polines was to a degree simply taking the path of least resistance; he did not feel able to manage Ms Gerona’s behaviour or was unwilling to do when she was otherwise a useful member of staff and someone with whom he had had a long working relationship. We formed the impression that he was not someone who liked conflict.

[257]We did not conclude that Mr Polines would have managed the situation differently or better if the claimant had not had a disability. We noted that part of his explanation for his treatment of the claimant on 1 February 2022 (encouraging her to go somewhere where she would be ‘safe’) was that that would avoid her working with Ms Gerona and suffering stress which could exacerbate the symptoms of her disability. If we had accepted that that consideration had played a material role in his handling of Ms Gerona’s behaviour, that could have established the necessary relationship with disability, however, we concluded that what was really at work was his apparent helplessness to address Ms Gerona’s behaviour. The professed concerns about the effects on the claimant due to her disability were, we think, cosmetic and ex post facto. Issue: failing to take any action to prevent the claimant from being bullied and harassed by her colleagues, in particular Ms Gerona, and did this create an intolerable work environment for her;

[258]This issue is essentially the same as the second part of the previous complaint and we have concluded that the harassment claim is not made out for the reasons set out above. Case Number: 2204183/2022 61 Issue: failing to take any action to prevent the claimant from being subjected to Ms Gerona’s unreasonable conduct, in particular her micro-management of the claimant;

[259]This again is essentially the same complaint as we have dealt with above about how Mr Polines handled Ms Gerona’s treatment of the claimant. We have rejected the harassment complaint for the reasons set out above. Issue: failing to address the claimant’s request to change her shift patterns to Tuesdays, Wednesdays and Saturdays and/or accommodating any requests to swap shifts;

[260]We did not consider that not allowing the claimant to work on a day when the pre admissions clinic did not require an HCA had either the proscribed purpose or the proscribed effect and we did not uphold this claim of harassment. Issue: placing unreasonable demands on the claimant by expecting her to carry out additional tasks, such as phlebotomy, without additional pay and support on Saturdays and Sundays, days of heavier than usual workload;

[261]We noted that all of these features of her placement in the pre admissions clinic were subject to the claimant’s agreement in the first instance, although she subsequently felt she should have been paid more. We had no evidence that she could have had a reasonable expectation that she would receive any enhanced pay and we did not consider that there was a proscribed purpose or that this treatment could reasonably be regarded as having the proscribed effect.

[262]The only relationship with disability was that the claimant required redeployment in the first place because of her disability.

[263]For those reasons we did not uphold this complaint of harassment. Issue: subjecting the claimant to the events of 1 February 2022 by Mr Polines, which the claimant will allege left her feeling distressed and humiliated to the extent she was unable to remain at work and complete her shift;

[264]This was clearly treatment which was unwanted by the claimant. We concluded that Mr Polines did not have a proscribed purpose but the effect of his failure on the day was to continue a hostile and humiliating environment for the claimant.

[265]As we have indicated above, however, we did not conclude that his behaviour was materially influenced by / related to the claimant’s disability.

[266]We did not uphold this complaint of harassment. Case Number: 2204183/2022 62 Issue: subjecting the claimant to repeated remarks from colleagues, in particular Ms Gerona and Mr Polines, asking her to return to the Oncology Ward;

[267]Although this conduct was unwanted and did have the proscribed effect, we did not conclude for reasons we have set out above that it was related to the claimant’s disability. Ms Gerona was annoyed about the claimant’s speed of work and her requests to change shifts; Mr Polines had failed for reasons of competence or personality to find an appropriate way of resolving the situation which had arisen because of Ms Gerona’s treatment of the claimant. We did not uphold this harassment claim. Issue: removing the claimant from her scheduled shifts without any explanation or discussion with her, and whether this left her to consider herself dismissed from her employment;

[268]We did not consider that this had the proscribed purpose or effect. Ms Doran was trying to get hold of the claimant to discuss the situation. Ms Gerona and Mr Polines were separately trying to make sure that the shifts were covered. We did not consider that the claimant could reasonably have believed these matters violated her dignity or created the prohibited environment. She knew that Ms Doran was trying to discuss the matter with her; she would also have been aware that the shifts needed to be covered.

[269]We did not conclude in any event that there was a relationship with disability. Mr Polines and Ms Gerona were acting to cover the shifts because they needed someone to do the work and the claimant was indicating that she was not coming back to the pre admissions ward.

[270]We accordingly did not uphold this claim of harassment. Issue: failing to investigate and address the claimant’s concerns in a timely manner despite asking her to retract her resignation on more than one occasion;

[271]Our overwhelming impression about the handling of the claimant’s complaints was that they were not dealt with with sufficient care or competence. We had no evidence that anyone involved had the proscribed purpose. As to effect, whilst we accepted that the treatment would have been frustrating and probably baffling to the claimant, we did not consider it could reasonably have been said to violate her dignity or to create the prohibited environment. We did not conclude that there was any evidence from which we could properly infer the requisite relationship with disability.

[272]We accordingly did not uphold this claim of harassment. Case Number: 2204183/2022 63 Issue: assigning Mr Kennedy to investigate her grievance in the full knowledge that he was leaving his employment within a short period and failing to inform the Claimant of this fact.

[273]For very much the same reasons as in respect of the previous complaint, we did not uphold this complaint of harassment. 6. Direct disability discrimination (section 13 EqA) Issue:6.1 Did any or all of the following matters constitute less favourable treatment of the claimant by the respondent in comparison to a comparator because of the claimant’s disability?6.1.1 any or all of the matters listed at 3.2 above.

6.1.2 the alleged constructive dismissal.

6.2 The claimant relies on a hypothetical comparator.

[274]In the absence of an actual comparator, we took a Shamoon approach of considering whether there was evidence from which we could reasonably conclude that the claimant had been treated less favourably than a non disabled hypothetical comparator because of disability.

[275]So far as the failure to consider the claimant for the outpatients vacancy is concerned, we concluded that the respondent behaved unreasonably and failed to have appropriate systems in place.

[276]We could see no evidence however, that the respondent would have had better systems in place or would have behaved more reasonably in respect of a non disabled employee who required redeployment. Ms Doran, we considered, was extremely supportive of the claimant but did not get the structured support she needed from HR. It seemed to us that whenever the claimant had the attention of Ms Doran or others in management, there was a desire to help. Ultimately it seemed to us that the natural inference to draw was not that the claimant was treated unreasonably for a reason related to her disability but that she was treated unreasonably because of inadequacies in the respondent’s systems.

[277]So far as the failure to respond to the two items of correspondence in 2021 was concerned, again that seemed to us to be unreasonable, however again there was nothing from which we could properly infer that the unreasonableness was materially caused by the claimant’s disability. 277. So far as Mr Polines’ failures were concerned we have made findings above that these were not related to the claimant’s disability. We similarly did not find evidence from which we could reasonably conclude that he treated the claimant less favourably than he would have treated a non-disabled comparator because of disability. Case Number: 2204183/2022 64

[278]In respect of treatment by Ms Gerona, the evidence we had was that she behaved in ways that were felt to be harsh / rude / hostile by other non-disabled members of staff including Mr Polines. Although the claimant’s disability put her in the vulnerable position where Ms Gerona’s suggestions she return to the ward were particularly upsetting to her, we did not conclude that the evidence pointed to the claimant’s disability as a part of Ms Gerona’s reasons for treating the claimant as she did. Ms Gerona wanted things done in her own way and with speed and she was irritated when the claimant was seeking to change her shifts.

[279]So far as the requirement to carry out phlebotomy tasks and to work without additional pay on Saturday and Sunday, we have found that these aspects of her redeployment were by agreement with the claimant and in accordance with her contract. There was simply no evidence which could shift the burden of proof.

[280]We could find no evidence that the removal of the claimant’s shifts after she left the ward on 1 February 2022 was because of her disability. If the burden had shifted, we were satisfied by the respondent’s explanation that it needed to cover shifts in the pre admissions clinic in order to provide a service.

[281]There were issues in relation to the grievance which we found to have been handled unreasonably. There was, however, nothing beyond unreasonableness from which we could infer that disability played a role. Again the natural inference to draw from the evidence we had, which included the respondent making spurts of concerted effort to address the claimant’s issues and then failing for periods of time, was a lack of resources, systems or sustained effort. We could see no evidence that this was connected with the claimant’s disability, particularly in circumstances where the respondent repeatedly encouraged the claimant to retract her resignation.

[282]For these reasons we did not uphold the claims of direct disability discrimination. Issue: 6.3 Was the claimant dismissed within the meaning of sections 39(2)(c) and 39(7)(b) EqA. Was the claimant entitled, because of the respondent’s conduct, to terminate her employment without notice? The claimant relies on the actions listed at paragraph 3.2 above as establishing her entitlement to termination.

[283]Because we did not find that any of the matters which led to the constructive dismissal constituted direct discrimination, we also did not find that the constructive dismissal was directly discriminatory. 7. Discrimination arising from disability (section 15 EqA) Issue: 7.1 Did the following arise in consequence of the claimant’s disability? 7.1.1 her inability to carry out all the duties of her substantive role due to her fibromyalgia and central pain sensitisation. Case Number: 2204183/2022 65

[284]It was clear from the medical evidence, and the claimant’s own evidence and it was clearly accepted by the claimant’s managers that she could not carry out all the duties of her substantive role, in particular heavy lifting, due to her disability. Issue: 7.1.2 her requirement for reasonable adjustments to her role.

[285]The flip side of that coin is that the claimant required adjustments due to her disability if she were going to remain employed by the respondent. 7.2 Did any or all of the following matters constitute unfavourable treatment because of something arising in consequence of the claimant’s disability? 7.2.1 any or all of the matters listed at 3.2 above. Issue: failing to arrange a suitable redeployment opportunity for the claimant on a permanent basis and/or allowing the claimant to continue with her redeployment in the Pre-Assessment Clinic uninterrupted;

[286]The need for a redeployment opportunity was a consequence of the claimant’s disability; the failure to notify the claimant of the vacancy which arose in outpatients was not, on our findings, because she required such an opportunity.

[287]We consider the treatment of the claimant in the pre admissions clinic under other allegations below. Issue: failing to respond to or acknowledging the claimant’s enquiries and alleviating her concerns about the future of her employment and the unreasonable conduct of her colleagues directed at her;

[288]On our findings above, the failure to respond to the claimant’s correspondence in late 2022 was carelessness or incompetence. We did not find any facts from which we could reasonably conclude that it was the somethings arising from disability which caused the failure to respond.

[289]We have made positive findings about the reasons why Mr Polines did not deal differently with the claimant’s concerns about her colleagues which do not include the somethings arising from disability. Case Number: 2204183/2022 66 Issue: failing to take any action to prevent the claimant from being bullied and harassed by her colleagues, in particular Ms Gerona, and did this create an intolerable work environment for her;

[290]This essentially crosses over with the previous allegation and again, our findings as to Mr Polines’ reasons do not include the somethings arising from disability. Issue: failing to take any action to prevent the claimant from being subjected to Ms Gerona’s unreasonable conduct, in particular her micro-management of the claimant;

[291]This also crosses over with the previous allegations and again, our findings as to Mr Polines’ reasons do not include the somethings arising from disability. Issue: failing to address the claimant’s request to change her shift patterns to Tuesdays, Wednesdays and Saturdays and/or accommodating any requests to swap shifts;

[292]We have made positive findings that the claimant’s request to work Wednesdays was rejected because there was no requirement for an HCA in the pre admissions clinic on a Wednesday. Issue: placing unreasonable demands on the claimant by expecting her to carry out additional tasks, such as phlebotomy, without additional pay and support on Saturdays and Sundays, days of heavier than usual workload;

[293]We did not consider that this was unfavourable treatment, since the claimant was being asked to work in accordance with her contract in circumstances where weekend working in the pre admissions clinic suited her and she required redeployment. Redeployment was not itself unfavourable treatment because of something arising in consequence of the claimant’s disability.

[294]So far as the pay was concerned, we had no evidence that any other permanent employee working in the pre admissions clinic at the weekend would have received the enhanced pay available to bank staff so there was no evidence that the failure to increase the claimant’s pay was because of something arising in consequence of her disability. Issue: subjecting the claimant to the events of 1 February 2022 by Mr Polines, which the claimant will allege left her feeling distressed and humiliated to the extent she was unable to remain at work and complete her shift;

[295]Again, our findings as to the reasons for Mr Polines’ inability to manage the situation with Ms Gerona more appropriately do not include the somethings arising from the claimant’s disability. Case Number: 2204183/2022 67 Issue: subjecting the claimant to repeated remarks from colleagues, in particular Ms Gerona and Mr Polines, asking her to return to the Oncology Ward;

[296]This was unfavourable treatment but on our findings the reasons for it were not the somethings arising from the claimant’s disability. We found no evidence from which we could infer that Ms Gerona would have treated an HCA she considered to be working slowly and asking for too many shift changes more pleasantly if that HCA did not have the claimant’s requirements arising from her disability, Similarly, we found no evidence from which we could properly infer that Mr Polines would have managed the situation better had the claimant not had the identified somethings arising in consequence of her disability. Issue: removing the claimant from her scheduled shifts without any explanation or discussion with her, and whether this left her to consider herself dismissed from her employment;

[297]We have made positive findings as to the reason why the claimant’s shifts were cancelled which do not include the something arising in consequence of her disability. Issues: failing to investigate and address the claimant’s concerns in a timely manner despite asking her to retract her resignation on more than one occasion; assigning Mr Kennedy to investigate her grievance in the full knowledge that he was leaving his employment within a short period and failing to inform the Claimant of this fact

[298]Again, we considered that the evidence shows that these matters arose from incompetence / ineptitude not the somethings arising in consequence of the claimant’s disability. Issue 7.2.2 the alleged constructive dismissal. 7.3 Was the claimant dismissed within the meaning of section 39(7)(b) EqA. Was the claimant entitled, because of the respondent’s conduct, to terminate her employment without notice? The claimant relies on the actions listed at paragraph 3.2 above as establishing her entitlement to termination.

[299]We have not found that any of the individual matters amounted to unfavourable treatment because of something arising in consequence of disability so it follows that the constructive dismissal was not itself a breach of section 15. For all of these reasons we have not upheld any of the claims under section15. Case Number: 2204183/2022 68 7.5 If so, can the respondent show that the treatment was a proportionate means of achieving a legitimate aim? In broad terms the legitimate aim is providing a safe place of work for the claimant and a safe environment for patients. The respondent has leave, as set out below and if so advised to give particulars of any other legitimate aim relied upon.

[300]We did not have to consider the issue of whether any unfavourable treatment because of something arising in consequence of disability was justified as we found no such treatment. 8. Reasonable adjustments (sections 20 and 21 EqA)8.1 Did the respondent apply the following PCPs?

[301]For employees working on the oncology ward, there was clearly, absent any adjustment, a requirement to carry out fairly heavy manual handling.

[302]That PCP put the claimant at a substantial disadvantage in comparison with person who are not disabled because she was unable to do those tasks and unable to continue to work on the oncology ward. Issue: 8.1.2 The requirement to consistently work weekend shifts without flexibility.

[303]The practice in pre admissions was that HCAs would have to work shifts on Mondays, Tuesdays, Fridays, Saturdays and Sundays. There could be said to be a practice that an HCA who could only work one of those weekdays would have to work on Saturdays and Sundays, although it was a practice of limited application.

[304]We could not find that the claimant was put at a substantial disadvantage compared with persons who did not share her disability. Anyone who was undertaking study and therefore was limited as to which weekdays they could work, as the claimant was, would have had to work weekend shifts instead. We had no evidence that at the relevant time, the claimant was less able than anyone else to work weekends, because of her disability. She had previously not been working two days in a row but by this point, there was no evidence Case Number: 2204183/2022 69 that she was not able to work two consecutive days and she did not suggest that that was the case. Issue: 8.1.3 The requirement to be paid at the normal rate of pay for weekend work.

[305]Our understanding was that permanent staff employed to work shifts throughout the week would not be paid enhanced rates for working at the weekend but bank staff would.

[306]The claimant was not in this respect at a substantial disadvantage compared with non disabled staff. Any permanent staff in her position would have had to work at weekends without additional pay. Issue: 8.3 If so, was it reasonable for the respondent to have taken the following steps to avoid the disadvantage? Issue: 8.3.1 Allow the claimant to continue in her redeployed role uninterrupted.

[307]The claimant was not herself pressing for this as an adjustment. During the period when she worked on the oncology ward, she was clearly conscious of her limitations whilst working on that ward. She appears to have accepted that what she really required to perform a useful function was redeployment to an area where there was no requirement for heavy manual handling. Issue 8.3.2 Redeploy the claimant into another suitable role or within Pre-Assessment on a permanent basis.

[308]We concluded that redeploying the claimant to the outpatients role would have been a reasonable adjustment. The evidence we had was that there was a role in outpatients which Mrs Doran believed was suitable for the claimant. Although there was some question raised in evidence and submissions over whether the claimant’s hours would have suited a full time role, it was for the respondent to satisfy us that the role did not represent a reasonable adjustment, in circumstances where we were satisfied that there was a PCP that put the claimant at a substantial disadvantage and that there was a prima facie reasonable adjustment which could have been made. The respondent did not call any evidence which established that the claimant’s availability would have ruled her out for this role. The role was available in November 2021. There was no evidence from anyone that the role would not have been appropriate for the claimant to perform or that she would not have happily accepted the role had it been proffered at the time it arose, a time when the claimant was anxious to find a permanent role.

[309]Although there was a suggestion that the claimant failed to look at the vacancy lists, the respondent’s own procedure places the onus on the employer to find a role for the employee. The claimant reasonably believed Case Number: 2204183/2022 70 that is what was going to happen. She was waiting for a vacancy in outpatients and her discussions with Ms Doran would have led her to believe someone would contact her as and when a suitable vacancy became available.

[310]We concluded that the respondent had failed in a duty to make reasonable adjustments in not offering the claimant the vacancy in outpatients. Issues: 8.3.3 Allow the claimant to change her shift pattern to Tuesdays, Wednesdays and Saturdays. 8.3.4 Pay the claimant the enhanced rate of pay for weekend work.

[311]These proposed adjustments related to PCPs which we did not conclude placed the claimant at a substantial disadvantage compared with persons who did not share her disability. They were not adjustments which would have alleviated the disadvantage we identified was caused by the PCP which we considered did place the claimant at such a disadvantage. Preliminary Issues Jurisdiction 2. The claimant contacted ACAS on 29 April 2022 as part of the Early Conciliation Procedure (‘EC’) and was issued with an ACAS Certificate on 10 June 2022. The claimant presented her claim on 24 June 2022. In respect of any act or omission that is alleged to constitute unlawful discrimination that occurred before 30 January 2022:2.1 Do such acts/omissions constitute part of conduct extending over a period for the purposes section123(3)(a) EqA which ended on or after 30 January 2022?

2.2 Alternatively, would it be just and equitable to extend time pursuant to section 123(1)(b) EqA

[312]So far as the failure to make a reasonable adjustment which we found occurred, the adjustment of placing the claimant in the outpatients role should reasonably have been put in train from late November 2021, which would have seen the claimant in the role perhaps in the course of December 2021 but perhaps in January 2022; we did not have any clear evidence as to how long the process would have taken.

[313]We considered that it was just and equitable to extend time for this claim. The claimant did not know the vacancy existed In November 2021 and in fact the respondent did not disclose the information until the final hearing. At the time when she was looking to commence proceedings, the claimant had been Case Number: 2204183/2022 71 informed that the vacancy was available in February 2022, not that it was being readvertised and had been available significantly earlier.

[314]Also relevant to our conclusion was the fact that the claimant had sought for a prolonged period to pursue a grievance about the various matters which formed the subject of these proceedings and had faced prolonged delays by the respondent. The respondent did not point to any prejudice caused to the respondent by the delay in presenting this claim, which if it existed, was very short.

[315]The claimant has been successful in her unfair dismissal claim and in one aspect of her claim for breach of a duty to make reasonable adjustments. There will be short case management preliminary hearing to list a remedy hearing. __________________________________ Employment Judge Joffe London Central Region 09/08/2023 Sent to the parties on: 10/08/2023 For the Tribunals Office Case Number 2204183/2022 1 EMPLOYMENT TRIBUNALS Claimant: Ms A Queiroz Respondent: Medical Services International Limited Heard at: London Central (by Cloud Video Platform) On: 1 and 2 October 2024 Before: Employment Judge Joffe Ms G Carpenter Ms J Marshall Appearances For the claimant: Represented herself For the respondent: Ms Musgrave-Cohen, counsel REMEDY JUDGMENT

[1]The respondent shall pay the claimant the following sums:a. A basic award of £4945.27.

b. Compensation for past financial losses: £13032.54.

c. Interest on compensation for past financial losses calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £1428.37.

d. Compensation for injury to feelings: £15,000.

e. Interest on compensation for injury to feelings calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £3288.

f. Uplift for failure to follow Acas Code of Practice on Disciplinary and Grievance Procedures: £1797.78.

g. Additional sum to reflect tax payable by the claimant on the award:£2372.99. Case Number 2204183/2022 2

[2]The total sum to be paid by the respondent to the claimant is £41,864.95.

[3]The claimant’s application for a preparation time order is refused. RESERVED REASONS Issues

[4]The issues the Tribunal had to decide were broadly as follows:a. The calculation of the basic award;

b. Issues as to whether the claimant had mitigated her loss;

c. What sum should be awarded for compensation for loss of earnings;

d. Whether the claimant had any pension loss, and, if so, in what amount;

e. Whether the claimant had any separate entitlement to holiday pay;

f. Whether the claimant should be compensated for any loss of benefits she enjoyed with the respondent apart from pay: - With respect to private medical insurance; - With respect to bonus’

g. The appropriate sum to be awarded as compensation for loss of statutory rights;

h. Whether the claimant was entitled to compensation for an alleged failure to give written reasons of termination;

i. Whether any uplift is appropriate for unreasonable failure by the respondent to follow the Acas Code;

j. What award for injury to feelings should be made in respect of the Tribunal’s finding of a failure to make reasonable adjustments;

k. Whether any aggravated damages should be awarded;

l. What interest should be awarded under the ETs (Interest on Awards in Discrimination Cases) Regulations 1996;

m. Whether any grossing up of figures is necessary to reflect tax the claimant will be liable to pay on the sums awarded;

n. Whether the claimant should be awarded a preparation time order. Findings

The hearing

[5]We were provided with a remedy bundle running to 406 pages. The claimant produced a new statement for the remedy hearing and gave oral evidence.

[6]We heard helpful submissions from both parties. Findings of fact Case Number 2204183/2022 3

[7]These findings should be read in conjunction with our Liability Judgment.

[8]The claimant’s employment ended on 17 March 2022. The claimant obtained new employment on 16 November 2022. The claimant was working reduced hours at the point when her employment terminated. Her contractual hours were 37.5 per week.

[9]The claimant’s new role as a healthcare assistant from November 2022 was not a full time role and was at a rate of pay lower than what she would have received had she worked full time hours in her role with the respondent. She was working thirty hours per week. This was the first role she was offered. It was a day case ward role involving no heavy manual handling tasks. She was not paid a bonus but did have the benefit of private health insurance which she told us did not cover pre-existing conditions. The claimant said there was not a vacancy for her to do more hours in her existing employment although she offered to do more shifts and had done some further shifts, she thought on two occasions.

[10]The claimant had a period of ill health spanning a period before and after she left the respondent’s employment. The claimant had a statement of fitness of work dated 29 March 2022 which said that she was not fit for work from that date until 28 May 2022 due to neuropathic pain in her feet and low back pain. She was signed off again for the same reasons between 1 June 2022 and 31 July 2022 and then again between 1 August 2022 and 30 September 2022. The claimant told us that her pain from her disability was substantially exacerbated by the stress she was experiencing before and after her employment with the respondent terminated. She was unable to look for a job due to constant pain aggravated by high stress.

[11]The claimant nonetheless applied for some roles during this period. She applied on or about 26 April 2022 for a health care assistant day surgery role. That application was unsuccessful. The claimant told the Tribunal she had one interview in May 2022; she could not answer questions, we understood because of her mental / emotional state, and the interview was embarrassing.

[12]It appeared that the claimant applied for approximately four roles in July, some roles on 17 and 19 August 2022 and numerous roles in September 2022. One of those applications led to the role she obtained.

[13]The claimant’s evidence about the pattern of her job applications was that she felt better and more able to cope once her Tribunal claim was underway. Her stress and pain settled down and she regained some confidence. She identified this point as being around the time of the preliminary hearing, which we note took place on 30 September 2022. She had begun making Case Number 2204183/2022 4 applications before then so it was clear that things had be gun to improve in advance of the case management hearing.

[14]It was common ground between the parties that the claimant was restricted to roles which did not involve extensive lifting / manual handling, which ruled out a large number of ward-based roles.

[15]The claimant gave evidence as to how upset she was by the treatment of Ms Gerona, including in respect of some behaviours which the Tribunal did not hear evidence or make findings about. The claimant’s pain from her underlying physical condition was exacerbated by the stress of the relationship with Ms Gerona and the claimant felt that no one in HR or senior management was helping her. She was very distressed after her meeting with Mr Polines on 1 February 2022, when he failed to indicate that he would take appropriate action in relation to the issues with Ms Gerona. She told us she felt ‘extremely humiliated, embarrassed. Discriminated, unwanted and unappreciated’. There were days subsequent to these events when she was too upset to speak to Ms Doran. We made findings that treatment by Ms Gerona and Mr Polines contributed to the breach of the implied term of trust and confidence which entitled the claimant to resign but we did not find these matters to constitute discrimination. That is relevant to our assessment of injury to feelings.

[16]The claimant also told us about the anxiety and upset she had felt since she first returned to work after her back injury due to the anxiety she felt about her position and her perceptions about how she was treated by other staff. She was especially upset when Ms Doran spoke with her about the possibility of her employment being terminated on medical grounds; at this point she became particularly worried about the security of her employment Again these were not matters for which we found the respondent liable.

[17]It was clear to us also that the claimant was very upset by the events which led to her constructive dismissal. She said that when the phlebotomist role was drawn to her attention on 3 February 2022 (with an expired closing date), she knew that she had not been offered the vacancy as the respondent no longer wanted to employ her, This had made her feel belittled and humiliated. The stress and anxiety led to an aggravation of her back and foot pain and heart palpitations. Her GP performed an ECG on 23 February 2022, the date the claimant sent her first letter of resignation.

[18]After her resignation, the claimant said that she had ongoing anxiety, in part about her lack of employment and her finances but also about her litigation. She described herself as facing ‘a massive broken down’ and said that she had uncontrollable crying and anxiety for two weeks. The delay in the grievance process also played a part. She continued to suffer from exacerbation of her pain and said that she could not sleep properly for four Case Number 2204183/2022 5 months. She felt too unwell to look for work and her physical capacity was limited given her foot and back pain.

[19]The claimant received benefits in the form of Employment Support Allowance from April to July 2022 and she received Universal Credit between July and October 2022. She was very anxious during this period about her finances and lack of money to pay bills. She said that she had counselling from a Disability Employment Advisor at the Jobcentre and burst into tears during a session.

[20]The claimant applied for but was not awarded Disability Living Allowance. It appeared that she scored 0 on an assessment made by the DWP of limitations on the claimant’s ability to work but we had no details of that assessment and it is of course in no way binding on us.

[21]The claimant told us that the events caused her to lose confidence and she did not go out socially and avoided her friends between February and December 2022 due to feelings of ‘shame, loss, stress and embarrassment.’

[22]The claimant had initially had assistance in bringing her claims from the Royal College of Nursing. She had subsequently paid privately for some coaching tp assist her in her claims from a company called Valla Limited. The claimant was at various times charged £180 for a three hour coaching package, £325 for a further coaching package, £420 for a further coaching package and another £225 for another package.

[23]The claimant had not sought full time or better paid employment since she started her new role in November 2022. She said that she would need three years of references to get a new position and that staff at the respondent would not give her a reference. She said that the only reference she could have got would have been from Ms Doran (who had provided her with a reference for her current employment) but Ms Doran had blocked her number, she thought about two weeks after the liability hearing. She had not written to the respondent to get a reference as she did not believe the respondent would give her a good reference because of her Employment Tribunal proceedings.

[24]It was apparent from looking at the claimant’s payslips in her new employment that, although she was on a lower rate of pay, because of the date when the claimant started the new employment relative to the tax year and the effect of her personal allowance, she was not earning less in the new role between November 2022 and March 2023 than she would have been had she remained in the respondent’s employment at her full time rate.

[25]The claimant agreed with the respondent that she had yearly pay rises of between 1 and 3%. Calculations suggested that there was an increase of 1.56% in 2022. Case Number 2204183/2022 6

[26]The claimant received a discretionary bonus yearly, she said in the amount of one to two weeks’ pay.

[27]The claimant accepted in cross examination that she did not ask for written reasons for her (constructive) dismissal.

[28]The claimant said that she could not get her pain relieving injections easily on the NHS; she would have to wait in a queue and she told the Tribunal that she would not be given the injections unless she was in extreme pain.

[29]We saw other relevant documents: - A receipt dated 25 April 2023 in the amount of £300 from a company called Fortius London Limited; - An invoice dated 28 April 2023 from a Dr Smith of the Fortius Clinic for a total of £420 for a local anaesthetic blockade of a named major nerve or plexus and a trigger point injection; - A table with estimated costs of Bupa cover for 1 July 2021 – 30 June 2022; - Various payslips showing the claimant’s earnings whilst with the respondent; - Payslips from the claimant’s new employer from November 2022. Law Compensation for Unfair Dismissal

[30]Compensation for unfair dismissal is in two parts, a basic award and a compensatory award.

[31]The basic award is calculated in accordance with section 119 of the Employment Rights Act 1996. Gross weekly pay is used in the calculation subject to the relevant maximum cap in place at the date of the dismissal.

[32]The basic award can only be reduced in accordance with section 122 of the Employment Rights ACT 1996.

[33]Section 123 of the Employment Rights Act 1996 provides for the compensatory award to be “such amount as the tribunal think is just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.” It is subject to the relevant maximum cap in place at the date of the dismissal. Compensation for Financial Loss in Discrimination Claims Case Number 2204183/2022 7

[34]The measure of loss is tortious with the effect that a claimant must be put, so far as possible, into the position that she would have been in had the act of discrimination not occurred (Ministry of Defence v Cannock

[1994] IRLR 509

, De Souza v Vinci Construction UK Ltd

[2017] EWCA Civ 879

. Compensation for discrimination is uncapped.

[35]Where the act complained of is a discriminatory dismissal, the tribunal will have to decide whether the complainant would have been dismissed in any event if there had been no discrimination (Abbey National plc v Chagger

[2009] ICR 624

). The duty to mitigate loss applies. Mitigation

[37]In Cooper Contracting Ltd v Lindsey 2016 ICR D3, EAT, Langstaff P summarised a number of principles drawn from the earlier case law that should be used to guide tribunals when considering whether there has been a failure to mitigate loss:(1) The burden of proof is on the wrongdoer; a Claimant does not have to prove that he has mitigated loss.

(2) It is not some broad assessment on which the burden of proof is neutral. I was referred in written submission but not orally to the case of Tandem Bars Ltd v Pilloni

UKEAT/0050/12

, Judgment in which was given on 21 May 2012. It follows from the principle — which itself follows from the cases I have already cited — that the decision in Pilloni itself, which was to the effect that the Employment Tribunal should have investigated the question of mitigation, is to my mind doubtful. If evidence as to mitigation is not put before the Employment Tribunal by the wrongdoer, it has no obligation to find it. That is the way in which the burden of proof generally works: providing the information is the task of the employer.

(3) What has to be proved is that the Claimant acted unreasonably; he does not have to show that what he did was reasonable (see Waterlow, Wilding and Mutton).

(4) There is a difference between acting reasonably and not acting unreasonably (see Wilding).

(5) What is reasonable or unreasonable is a matter of fact.

(6) It is to be determined, taking into account the views and wishes of the Claimant as one of the circumstances, though it is the Tribunal's assessment of reasonableness and not the Claimant's that counts.

(7) The Tribunal is not to apply too demanding a standard to the victim; after all, he is the victim of a wrong. He is not to be put on trial as if the losses were Case Number 2204183/2022 8 his fault when the central cause is the act of the wrongdoer (see Waterlow, Fyfe and Potter LJ's observations in Wilding).

(8) The test may be summarised by saying that it is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate.

(9) In a case in which it may be perfectly reasonable for a Claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that may assist the Tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient. Causation

[38]In some cases a new act which occurs after the original unlawful act causing loss can break the chain of causation between the unlawful act and the ongoing loss; the intervening act is traditionally referred to as a novus actus interveniens.

[39]To break the chain of causation, a novus actus must be the sole effective cause of the loss such that prior wrongdoing has been eclipsed and is not an effective or contributory cause in law. If the act of a third party is a natural and reasonable consequence of the unlawful act, it will not break the chain of causation: McNicholas v Care and Learning Alliance and anor

2023 EAT 127

[40]The employer’s own wrongful act will not break the chain of causation: Prison Service v Beart (No.2)

2005 ICR 1206

, CA. In Beart, the claimant was discriminated against due to disability and then unfairly dismissed. The Court of Appeal upheld the tribunal’s decision that the unlawful dismissal did not break the chain of causation. . Injury to feelings

[41]The Tribunal has the power to award compensation to an employee for injury to feelings resulting from an act of discrimination by virtue of sections 124(5) and 119(4) of the Equality Act 2010.

[42]The purpose of the award is to compensate the complainant for the anger, upset and humiliation caused by the discrimination.

[43]As set out in Prison Service v Johnson

[1997] IRLR 162

: - Awards should be compensatory and just to both parties; - Awards should not be too low as this would diminish respect for the anti-discrimination legislation; - Awards should bear some broad general similarity to the range of awards in personal injury cases; Case Number 2204183/2022 9 - In exercising their discretion tribunals should remind themselves of the value in everyday life of the sum they had in mind by reference to purchasing power or earnings and should bear in mind need for public respect for the level of awards made.

[44]In determining the amount of the award, we are required to follow the Vento guidelines in place at the date of presentation of the claim. These were Lower: £990 – 9900 Middle: £9900 – 29,600 Upper: £29,600 – 49,300

[45]We can have regard to the Judicial College Board guidelines for quantum in personal injury cases in getting a sense of where an award for injury to feelings should fall. In this regard we note the moderate category for psychiatric injury in the JCB guidelines: While there may have been the sort of problems associated with factors (i) to (iv) above there will have been marked improvement by trial and the prognosis will be good. Cases of work-related stress may fall within this category if symptoms are not prolonged. £7150 – £23,270 Aggravated damages

[46]We were much assisted by guidance in Commissioner of Police of the Metropolis v Shaw

UKEAT/0125/11/ZT

: Criteria. The circumstances attracting an award of aggravated damages fall into the three categories helpfully identified by the Law Commission: see para 16(2) above. Reviewing them briefly:(a) The manner in which the wrong was committed. The basic concept here is of course that the distress caused by an act of discrimination may be made worse by it being done in an exceptionally upsetting way. In this context the phrase “high-handed, malicious, insulting or oppressive” is often referred to (as it was by the tribunal in this case). It derives from the speech of Lord Reid in Broome v Cassell & Co Ltd

[1972] AC 1027

(see at p 1087G), though it has its roots in earlier authorities. It is there used to describe conduct which would justify a jury in a defamation case in making an award at ‘the top of the bracket’. It came into the discrimination case law by being referred to by May LJ in Alexander v Home Office

[1988] ICR 685

as an example of the kind of conduct which might attract an award of aggravated damages. It gives a good general idea of the territory we are in, but it should not be treated as an exhaustive definition of the kind of behaviour which may justify an award of Case Number 2204183/2022 10 aggravated damages. As the Law Commission makes clear an award can be made in the case of any exceptional (or contumelious) conduct which has the effect of seriously increasing the claimant’s distress.

(b) Motive. It is unnecessary to say much about this. Discriminatory conduct which is evidently based on prejudice or animosity or which is spiteful or vindictive or intended to wound is, as a matter of common sense and common experience, likely to cause more distress than the same acts would cause if evidently done without such a motive say, as a result of ignorance or insensitivity. That will, however, only of course be the case if the claimant is aware of the motive in question: otherwise it could not be effective to aggravate the injury: see Ministry of Defence v Meredith [1995]IRLR 539, 543, paras 32—33. There is thus in practice a considerable overlap with head (a). c) Subsequent conduct. The practice of awarding aggravated damage for conduct subsequent to the actual act complained of originated, again, in the law of defamation, to cover cases where the defendant conducted his case at trial in an unnecessarily offensive manner. Such cases can arise in the discrimination context: see Zaiwalla & Co v Walia

[2002] IRLR 697

(though NB Maurice Kay J’s warning at para 28 of his judgment (p 702)) and Fletcher

[2010] IRLR 25

. But there can be other kinds of aggravating subsequent conduct, such as where the employer rubs salt in the wound by plainly showing that he does not take the claimant’s complaint of discrimination seriously: examples of this kind can be found in Armitage, Salmon and British Telecommunications plc v Reid

[2004] IRLR 327

. … 23 How to fix the amount of aggravated damages. As Mummery LJ said in Vento v Chief Constable of West Yorkshire Police

[2003] ICR 318

,331—332, paras 50—51,’translating hurt feelings into hard currency is bound to be an artificial exercise’ Quoting from a decision of the Supreme Court of Canada, he said: ‘The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. ’Since there is no sure measure for assessing injury to feelings, choosing the ‘right’ figure within that range cannot be a nicely calibrated exercise’. Those observations apply equally to the assessment of aggravated damages, inevitably so since, as we have sought to show, they are simply a particular aspect of the compensation awarded for injury to feelings; but the artificiality of the exercise is further increased by the difficulty, both conceptual and evidential, of distinguishing between the injury caused by the discriminatory act itself and the injury attributable to the aggravating elements. Because of that artificiality, the dividing line between the award for injury to feelings on the one hand and the award of aggravated damages on the other will always be very blurred, and tribunals must beware of the risk of unwittingly compensating claimants under both heads for what is in fact the same loss. The risk of double-counting of this kind was emphasised by Mummery LJ in Vento; but the fact that his warnings not always heeded is Case Number 2204183/2022 11 illustrated by Fletcher. The ultimate question must be not so much whether the respective awards considered in isolation are acceptable but whether the overall award is proportionate to the totality of the suffering caused to the claimant. 24 Relationship between the seriousness of the conduct and the seriousness of the injury. It is natural for a tribunal, faced with the difficulty of assessing the additional injury specifically attributable to the aggravating conduct, to focus instead on the quality of that conduct, which is inherently easier to assess. This approach is not necessarily illegitimate: as a matter of broad common sense, the more heinous the conduct the greater the impact is likely to have been on the claimant’s feelings. Nevertheless it should be applied with caution, because a focus on the respondent’s conduct can too easily lead a tribunal into fixing compensation by reference to what it thinks is appropriate by way of punishment or in order to give vent to its indignation Tribunals should always bear in mind that the ultimate question is what additional distress was caused to this particular claimant, in the particular circumstances of this case, by the aggravating feature(s) in question, even if in practice the approach to fixing compensation for that distress has to be to some extent arbitrary or conventional Failure to follow 2009 Acas Code of Practice 1 on Disciplinary and Grievance Procedures.

[47]Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 enables an employment tribunal to adjust the compensatory award for an unreasonable failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures. The award can be increased or decreased by up to 25% if it is just and equitable in all the circumstances.

[48]We should ask ourselves the following questions:a. Is the claim one which raises a matter to which the Acas Code applied?

b. Has there been a failure to comply with the Acas Code in relation to that matter?

c. Was the failure to comply with the Acas Code unreasonable? (Rentplus UK Ltd v Coulson

[2022] EAT 81

d. Is it just and equitable to award any Acas uplift?

e. If so, what do we consider a just and equitable percentage, not exceeding 25%?

f. Does the uplift overlap or potentially overlap with other general awards such as injury to feelings; if so, what in our judgment is the appropriate adjustment if any to the percentage of those awards in order to avoid double counting?

g. Applying a final sense check, is the sum of money represented by the application of the percentage uplift disproportionate in absolute terms and, if so, what further adjustment needs to be made? Case Number 2204183/2022 12 (Slade v Biggs [2021] EA-2019-00678) Interest

[49]Interest is payable on any compensation we award for discrimination pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803). It is ordinarily calculated in accordance with those Regulations, although the Tribunal does have a degree of discretion to calculate interest by reference to periods other than those set out in the Regulations in exceptional cases. For injury to feelings awards, the interest is calculated from the date of discrimination. For other awards, interest is calculated from the midpoint between the date of discrimination and the date when compensation is calculated. The current applicable rate of interest is 8% per annum. . Tax

[50]When making an award of compensation, the tribunal must take account of tax payable on the various elements of the award. It may therefore be necessary, in accordance with the principles in British Transport Commission v Gourley

[1955] 3 All ER 796

, once the amount of the award has been calculated using net figures for earnings and pension loss to 'gross up' the award so as to ensure that the claimant is not left out of pocket when any tax required to be paid on the award has been paid. Tax is not payable on general damages for personal injury or injury to feelings awards relating to pre-termination discrimination. Conclusions Basic award

[51]We accepted that the weekly pay for this calculation should be based on the claimant’s actual pay at dismissal rather than the gross pay she would have been earning had she been redeployed to the full time outpatients role. We could not see that the statute gave us any discretion to use a figure other than actual pay. The respondent had calculated a figure for the claimant’s gross weekly pay which was in fact higher than that claimed by the claimant in her schedule and we accepted the respondent’s figure. The correct multiplier, given the claimant’s age and her years of services was 11 and so the basic award was £449.57 x 11 = £4945.27. Compensation for unfair dismissal / financial loss due to discrimination Loss of earnings

[52]The respondent conceded the calculation should be based on the claimant’s full time earnings, as being the sum the claimant would have been earning Case Number 2204183/2022 13 had the respondent not failed to make reasonable adjustments in the way the Tribunal found.

[53]The claimant’s full time weekly net pay had been calculated by the respondent at £429.23 and the claimant did not take issue with that figure Mitigation

[54]The respondent argued that the claimant should have obtained new employment within twelve weeks of her dismissal. Because she had in fact applied for some roles in April onwards, that demonstrated that she was not unfit to look for work. She had been able to pursue her grievance and commence her Tribunal proceedings within that period. There were clearly numerous potentially suitable roles given the roles the claimant had ultimately applied for and the speed with which she obtained new employment once she started looking in earnest.

[55]Furthermore, the respondent said, she had failed to mitigate her loss once she was in the new role by not looking for a better paid job. Period until November 2022

[56]We had to bear in mind that the claimant was signed off sick for the period when the respondent said that she ought to have sought and obtained new employment. We could well understand that due to her considerable concern about her finances, she had nonetheless tried to apply for some roles during the period. We cannot say, however, that we had evidence that she was fit to conduct a more vigourous job search and that she behaved unreasonably by not doing so. All of the evidence we had suggested that the claimant was anxious to achieve the security of stable employment and was very worried about the financial consequences of not being in work.

[57]We concluded that there was no failure to mitigate and the claimant was entitled to her financial losses for the period 17 March 2022 – 16 November 2022. The calculation is 34.86 weeks x 429.23 = £14,962.96. Period after November 2022

[58]We accepted that because of the incidence of tax, there was in fact no loss of net pay in the new role up to March 2023.

[59]Did there come a point in the period when the claimant failed to mitigate her loss by seeking better paid employment? We noted that the claimant had been in this role for nearly two years by the date of the remedy hearing. We considered that it was entirely reasonable for her to spend a period of time in the role before looking to improve her position financially, in order to reestablish her confidence. We could well understand that she had some anxiety about whether she could obtain a good reference from the respondent but it was not reasonable for her not to have investigated that Case Number 2204183/2022 14 issue . We noted also that her new employer was a large one and it might have been possible for her to make an internal move.

[60]We considered that, given that there had been a plethora of jobs which the claimant could apply for in 2022 which did not require her to perform heavy manual handling, the strong likelihood was that there continued to be roles the claimant could perform both in the NHS and in private healthcare.

[61]We considered that it was unreasonable for the claimant not to seek to make up her lost earnings after about nine months in the new role. Had she looked for a role at that point, we considered, based on the claimant’s own experience when she started looking for work in earnest, that she would have been appointed to a new role within three months of starting to apply.

[62]On that basis, we awarded the claimant compensation for the difference in net pay between her new role and her role with the respondent between 6 April 2023 and16 November 2023 This was 32 weeks and the monthly difference in pay was £84.21 per month. The total loss for this period was £621.76. Holiday pay

[63]The claimant was looking to be compensated for holiday pay on top of the pay rate for her full time role over the period for which we awarded compensation.

[64]This was a misunderstanding by the claimant; had she remained in employment, she would of course have been entitled to take annual leave but would not have been paid an additional sum, over and above her salary, whilst on annual leave. Pension loss

[65]There was an agreed weekly figure for pension. The claimant did have a pension with her new employment but she told us, and this appeared to be confirmed by her payslips, that she did not receive pension payments for the first two months of her new role. We accordingly made an award for loss of pension for a total of ten months, a sum of £458.70 Bonus

[66]It is well established that discretionary bonuses can form part of unfair dismissal or discrimination compensation where the employee has a reasonable expectation that she would have received the bonus. There was good evidence that the claimant had received a yearly bonus whilst in the respondent’s employment. For 2021 the figure had been £482.20. The period Case Number 2204183/2022 15 of loss we found recoverable would have included two bonus payment dates so the total sum we calculated under this head was £964.40. Health insurance

[67]Although the respondent accepted a calculation for this loss which was based on what the insurance would have cost for the period the claimant was out of work, that did not seem to us an accurate way of reflecting the claimant’s loss, since she had not expended sums in replacing the insurance.

[68]The appropriate measure of loss, it seemed to us, was the cost of the pain injections which the claimant had paid for. We accepted that she did so at a point when she would have otherwise faced a long wait for treatment.

[69]Given the dates and lack of evidence from the claimant to the contrary, we concluded that the invoice and receipts we saw related to the same treatment occasion and that the total cost of treatment on that occasion was £420; that was the figure which we awarded. Loss of statutory rights

[70]This is of course a notional figure, which has increased over the years, The respondent argued for a figure of £300 and the claimant for a figure of £500. It seemed to us, bearing in mind the claimant’s period of service, a figure of £500 was appropriate. Total financial compensation and whether awarded as discrimination loss or compensation for unfair dismissal

[71]The total figure for financial losses before any state benefits were taken into account was £17927.82.

[72]These losses flowed separately from the unfair dismissal and from the failure to make reasonable adjustments. Had the adjustments been made, the claimant would have been in alternative employment with the respondent and not gone on to suffer the problems in the pre admissions department which led to her constructive dismissal. We could see no evidence that she would have left that new employment had the adjustment been made.

[73]We considered that the case of Beart was authority for the proposition that the intervening unfair dismissal could not be regarded as cutting off the flow of losses from the failure to make reasonable adjustments and the claimant remained entitled to calculation of her compensation on the more favourable basis under the Equality Act 2010. Looked at another way, the claimant’s resignation was materially caused by the failure to make reasonable Case Number 2204183/2022 16 adjustment . In circumstances where the same loss is caused by unfair dismissal and discrimination, the EAT has said that the compensation should be awarded under the discrimination legislation:: D’Souza v London Borough of Lambeth

1997 IRLR 677

, EAT.

[74]Because we did not award the financial losses as unfair dismissal compensation, there was no recoupment of state benefits. Instead these fell to be deducted from the sum calculated. The claimant’s evidence was that she received benefits in the sum of £4895.28. Deducting these from the loss of earnings and other benefits gave a figure for financial loss of £13,032.54 before any increase for interest or Acas uplift. Injury to feelings

[75]The respondent argued that the Tribunal needed to look carefully at which injured feelings flowed from the discrimination which we found. There was considerable upset prior to the failure to make reasonable adjustments, particularly after 13 June 2021 when Ms Doran explained to the claimant that her contract could be terminated on medical grounds

[76]We had not found behaviour by Ms Gerona and Mr Polines to be discriminatory and it was that behaviour which led to the claimant leaving the respondent’s employment, with all of the upset which flowed from that.

[77]We bore in mind that the difficulties in the pre admissions clinic started in October 2021. The role in outpatients was available from November 2021. If the claimant had been in the process of being redeployed, even if that process had taken until January 2022 to complete, we considered that the effect on her of Ms Gerona’s treatment would have been quite different.

[78]Furthermore a very large part of the claimant’s upset was caused by the anxiety of being without work and the difficult financial circumstances that created. We bore in mind the extent of the upset we have described above and the fact that it certainly continued at a relatively significant level until the claimant obtained new employment in November 2022.

[79]Discounting earlier causes of the claimant’s upset but not treating her constructive dismissal as a novus actus, it seemed to us that this was a middle band case somewhat below the middle of that band and that an award of £15,000 was appropriate under this head. Aggravated damages Case Number 2204183/2022 17

[80]The claimant did not address us on this head of loss but in any event there was nothing to suggest the failure to make adjustments was highhanded or malicious rather than simply inadvertent or that there were other aggravating features. It was not appropriate to make an award under this head. Failure to follow 2009 Acas Code of Practice 1 on Disciplinary and Grievance Procedures.

[81]There could be no failure in respect of the Code on disciplinary procedures as no disciplinary procedure was applied to the claimant.

[82]The respondent argued that no adjustment should be made in respect of any failure to follow the Code on grievance procedures as the grievance related to the conduct which occurred in the pre admissions clinic rather than the failure to redeploy.

[83]Even if it had been fair to disentangle the issues from one another in that way, the grievance brought by the claimant covered the matters which were the subject of her constructive unfair dismissal so an uplift for failure to follow the Code would apply to the awards in respect of that cause of action.

[84]The respondent argued that there was no breach of the Acas Code but delay can itself be a breach.

[85]Some relevant passages from our Liability Judgment and Reasons are as follows: On 28 February 2022, Mr Kennedy obtained a mobile phone number for the claimant and they had a phone conversation in which the claimant agreed to retract her resignation whilst Mr Kennedy investigated the situation. The claimant put in a grievance statement. 153. On 10 March 2023, the claimant emailed Mr Kennedy, having not heard anything further in the intervening period. As it happened this was the date Mr Kennedy’s employment with the respondent ended, he having previously given notice. The following day, 11 March 2022 (a Friday), the claimant received an automatic reply message when she emailed Mr Kennedy. That message informed her that Mr Kennedy had left the organisation.

[86]The claimant then resigned again on the morning of 17 March 2022..

[87]We found:237. We considered that the delay in telling the claimant that there would have to be a new investigator because Mr Kennedy was leaving the respondent’s employment was very poor. It must have been fairly obvious by the time Mr Kennedy contacted the claimant that he would not be available to see the investigation through. No one contacted the claimant to tell her that was the situation and she only found out because she chased Mr Kennedy when she heard nothing from him. Case Number 2204183/2022 18

238. The failures are hard to understand in circumstances where the respondent had persuaded the claimant to retract her resignation but it would have been obvious that her trust in the respondent had been significantly damaged. Issue: 3.2.11 assigning Mr Kennedy to investigate her grievance in the full knowledge that he was leaving his employment within a short period and failing to inform the Claimant of this fact.

239. As we have observed under the previous head, this was a significant and damaging failure.

[88]On the subject of further delay in respect of the claimant’s grievance: No one from the respondent then contacted the claimant until she wrote to ask about the report on 26 April 2022. On 27 April 2022, she contacted Mr Rahunoks and he replied. Ms McGarvie wrote to say that the report was with HR and was being reviewed.164. On 7 June 2022, Ms McGarvie wrote to the claimant to say that the report was finalised and with an HR colleague; she was hoping to share the final report that week.

165. The claimant’s RCN representative chased for the report on 15 and 20 June 2022 and it was finally sent to the claimant by email on 21 June 2022. We note that in her interview for the grievance, Ms Doran had said that it was clear by August 2021 that the claimant would not be fit to return to the ward.

[89]We note that the earlier delay created by appointing Mr Kennedy and then not advising the claimant he was leaving and promptly replacing him had a significant impact and caused the claimant to reinstate her resignation. At this point timely adherence to the Code might have made a real difference to the claimant and the future of her employment. We also rejected a suggestion from the respondent that the fact that it was the respondent which identified the claimant’s correspondence as a grievance somehow obviated the need for the respondent to comply with the Code.

[90]We also bore in mind that although this was a significant failure, particularly bearing in mind its consequences, it was far from being a wholesale failure by the respondent to follow the Code. It seemed to us that the uplift which appropriately reflected the failure we found was 10%. We applied that to the unfair dismissal awards.

[91]Applying a 10% uplift to the basic award and the compensatory award produced a figure of £1797.78. Failure to give written reasons for dismissal

[92]No request for written reasons was made by the claimant under section 92(2) ERA so no award is due under this head. Case Number 2204183/2022 19 Interest

[93]The respondent said that because there had been significant delays in the remedy hearing being convened which were due to the Tribunal and not any fault on the part of the respondent, we should awarded interest for a shorter period.

[94]We were not satisfied that there would be serious injustice to the respondent if we awarded interest for the longer period. The delay was not exceptional and the respondent has had the use of the money during the period when interest has been accruing. Applying the appropriate midpoint date for the loss of earnings, the calculation was £1428.37 for interest on the loss of earnings and £3288 for interest on injury to feelings. Preparation Time Order

[95]Under Rule 76(1) a tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that: a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or b) any claim or response had no reasonable prospect of success.

[96]The claimant did not draw our attention to any unreasonable conduct by the respondent and we were satisfied that the response had had reasonable prospects of success, although in a number of respects the respondent had not ultimately succeeded. It was therefore not appropriate to make a preparation time order. Had we found the test for a preparation time order met, we would not have been able to award the sums requested for legal coaching. We did not hear any argument as to whether they could have been awarded as costs. Grossing up for tax

[97]We grossed up the sum by which the total awarded exceeded the tax free component of £30,000. There was £9491.96 to gross up at the rate of 20% to reflect the tax the claimant would pay on it. That grossed up to £11,864.95. Adding back in the £30,000 gave a total award of £41,864.95 Employment Judge Joffe 21 November 2024 Case Number 2204183/2022 20 Sent to the parties on: 26 November 2024 ……………………………. For the Tribunal Office: ……...…………………….. Case Number 2204183/2022 EMPLOYMENT TRIBUNALS Claimant: Ms A Queiroz Respondent: Medical Services International Limited

Conclusions

[1]The claimant submits that these costs should have been awarded by the Tribunal as expenses under section 123 Employment Rights Act 1996 rather than considered as a preparation time order.

[2]The Tribunal understood the claimant to be seeking a preparation time order in respect of these sums; she had included the claim in the section of her Schedule of Loss entitled ‘Preparation Time Order’. Even had the Tribunal understood that the claimant was seeking to pursue this claim as a type of expenses, the result would not have been any different. Expenses awarded under section 123(2)(a) do not include any fees which might be subject to a costs or preparation time order, orders which are only made in accordance Case Number 2204183/2022 with the tests set out in the Employment Tribunals Rules of Procedure 2013. See Nohar v Granitstone (Galloway) Ltd

1974 ICR 273

, NIRC. Sums spent on medical care

[3]The claimant seeks to give further evidence about the receipt and invoice which we had in the bundle. We did not have that evidence at the time although it would have been open to the claimant to have provided it and we made a decision based on the evidence which was in front of the Tribunal at the hearing. It would not be in the interests of justice or proportionate for the claimant to have the opportunity to present further evidence and argument which could have been presented at the remedy hearing. Interest

Issues

[4]The claimant has written: “The total award missed is applied interest as per Tribunal findings at para 49 and (para 94) ‘We were not satisfied that there would be serious injustice to the respondent if we awarded interest for the longer period. The delay was not exceptional and the respondent has had the use of the money during the period when interest has been accruing.’’’

The hearing

[5]The basis on which she seeks reconsideration of the award of interest is entirely unclear.