Ms J Stacey v MSI Reproductive Choices and others: 2204622/2022 and others

EMPLOYMENT TRIBUNALS

Case No 2204622/2022

Between

Ms J StaceyClaimant

MSI Reproductive Choices and othersRespondent

Before

Tribunal Judge Plowright

Mr A Philpott (instructed by Counsel) for claimant

Mr S Keen (instructed by Counsel) for respondent

Date 6 April 2025

REASONS

[1]By a first claim presented on 14 July 2022, the claimant brought complaints of disability discrimination, whistleblowing and health and safety detriment, and other payments. By a second claim presented on 14 October 2022, the claimant brought a further complaint of victimisation. By a third claim presented on 23 January 2023, the claimant brought a complaint of unfair dismissal and automatic unfair dismissal (whistleblowing) and further complaints of disability discrimination. The respondents resist these claims.

[2]Preliminary hearings have been heard on 01 and 08 June 2023 and 25 July 2023. At the hearing on 25 July 2023, the claimant withdrew the complaints of health and safety detriment and indirect discrimination.

[3]At the hearing on 25 July 2023, the Judge also listed the case for a preliminary hearing in public to determine the following issue: “Whether the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 at the relevant times, by reason of Long COVID?” Procedure, documents and evidence heard

[4]In terms of documentation, I had before me the following documents:• Preliminary Hearing Bundle of 432 pages and Index

• Witness Statement of Julie Stacey dated 31/10/23

• Witness Statement of Nichola Dowell dated 30/10/23

• Authorities of Chacon Navas v Eurest SA (ECJ) [2007] ICR, Boyle v SCA Packaging Ltd [2009] ICR, The Guinness Partnership v Mr P Szymoniak

UKEAT/0065/17/DA

• Employment Tribunal decision of Burke v Turning Point Scotland

• Letter from the claimant to Simon Cooke dated 01/04/23

• Email from the claimant to the respondent’s solicitor dated 27/10/23

• Skeleton Argument for the Claimant

• Skeleton Argument for the Respondent

[5]I heard evidence from the claimant and Ms N Dowell. After their evidence both Counsel made submissions.

[6]At the end of the hearing, I reserved my decision. In reaching my findings, I have taken account of all the evidence before me and the submissions made by both Counsel.

The Facts

[7]The claimant’s employment with the first respondent commenced on 4 June 2007 until she was dismissed on 28 October 2022. She was most recently engaged as Head of Ultrasound Services and Assessor.

[8]On 02 November 2020, the claimant contracted COVID. On the same date the claimant was issued with a fit note which made reference to ‘cough’.

[9]On 09 November 2020, the claimant was admitted to hospital as a consequence of contracting COVID and was discharged on 16 November 2020.

[10]On 13 November 2020, the claimant was issued with a fit note which made reference to ‘Lower respiratory tract infection – COVID 19’.

[11]On 23 November 2020, the claimant was issued with a fit note which made reference to ‘Coronavirus infection’.

[12]The claimant’s GP records show that throughout November 2020 and December 2020, she was suffering from the effects of COVID. In particular, she was struggling with fatigue. She also went for various medical tests.

[13]On 04 January 2021, the claimant returned to work.

[14]On 13 May 2021, the claimant’s GP records identify the problem as ‘Post-COVID19 syndrome’. The history is recorded as ‘Long COVID symptoms since November’. At this point in time the claimant is referred to the Long COVID clinic. In the referral form, under the heading ‘Presenting Problem’, the following is written: ‘Recurrent pneumonia (3rd episode this year), Hair loss, tiredness and breathlessness’

[15]On 25 October 2021, following her appointment at a Long COVID clinic, the claimant, was issued with a letter which stated the following: “I reviewed this patient in a BLIS clinic appointment with my GP colleague Dr Collins. She had a one week hospital admission in November 2020 due to COVID. She was treated with CPAP and her main symptoms include shortness of breath, lethargy, reduced appetite and nausea. She has since been followed up in our 12 week COVID clinic where she completed normal lung function. She had a 6 minute walk test which showed ongoing exertional desaturation. She has since had a repeat CT scan and her chest shows no PE and an improvement in her inflammatory changes. She reports current symptoms of ongoing fatigue, brain fog, shortness of breath mostly on exertion and joint pain. She does not have any joint swelling or morning stiffness in her joints. She does acknowledge previous spinal injury that contributes to some of her pain. Overall she feels her symptoms have improved since November last year. She takes over the counter medication to improve her vitamin D levels. She has returned to working full time in a private ultrasound department as a manager, and does some of this from home. She is living with her daughter who she supports with her learning disabilities. She manages to walk her dog regularly. Today we discussed the following: 1. Information regarding long COVID. 2. Fatigue management advice. 3. The long COVID workbook and Pain Speaks podcast particularly around the topic of brain fog. 4. Utilising the charitable partnership with Nirvana Spa …”

[16]On 03 February 2022, the second respondent (Nicola Moore) emailed the claimant stating the following: “…As shared by you today, you continue to suffer from long COVID, which has left you with ongoing tiredness, cough, and breathlessness.”

[17]On 08 March 2022 the claimant was absent from work until 15 March 2022 due to a chest infection.

[18]On 15 March 2022, the second respondent (Nicola Moore) had a meeting with the claimant and noticed that she was breathless and unable to speak. The second respondent asked her not to speak, rather to sit calmly for a few minutes to catch her breath. The claimant did this and the second respondent then asked her how she was . She stated that she was tired and that she gets home exhausted.

[19]On or about 16 March 2022, the claimant took sick leave until 04 July 2022.

[20]On 18 March 2022, the claimant was issued with a fit note which made reference to ‘Stress’.

[21]On 23 March 2022, the claimant emailed the second respondent (Nicola Moore) in which she stated the following: “…Tuesday 15th March was the first time we had a face-to-face conversation around my Long COVID… … I returned to work on Monday 4th January 2023, informing Betty Njugina of my long COVID diagnosis – explaining to her that I can become tired and breathless on exertion… … To date I have not been off sick with anything related to long COVID, although I have had 4 days sick with a chest infection from 8 – 11th March, returning to work in Hillingdon on 14th March 2022. … On 15th March 2022 you invited me to speak with you whereupon we discussed my diagnosis for long-COVID – I was open and honest with you, informing you that I get breathless and tired, this wasn’t something that I could hide as I’d just walked up several flights of stairs to get to the office where you were working that day…”

[22]On 04 April 2022, the claimant was issued with a fit note which made reference to ‘Stress-related problem’.

[23]On 31 May 2022, the claimant was issued with a fit note which made reference to ‘Stress-related problem’.

[24]On 06 June 2022, the claimant had a telephone assessment with an Occupational Health Physician who wrote a letter on 09 June 2022 stating the following: “… Ms Stacey states that she suffers from work-related stress. She tells me that in March 2022, the management told her to take time off from work due to long COVID symptoms. She states that she had a COVID infection in November 2020 and has suffered from tiredness and shortness of breath. She has had several investigations, including lung scans which are all normal. Despite having long COVID symptoms, she worked and continued to perform for 15 months until March 2022. She states that she does not understand why the management has deemed her unfit to work suddenly. She states that she worked full-time without any adjustments despite having long COVID symptoms. She tells me that she has suffered from work-related stress since March and was signed off by her GP. … In terms of functionality, she lives with her daughter and manages her day-to-day routine without any problems. She has been driving without having any problems recently. She states that she feels slightly short of breath on exertion and tired at the end of the day. The above is reported by Ms Stacey, and I cannot confirm the veracity or otherwise of the comments made. Long COVID can have unusual patterns, relapses, phases with new, sometimes bizarre symptoms, and can last for a long time. However, most people with long COVID symptoms have returned to work with adjustments and support. Opinion and Outcome In my opinion, based on the assessment and the information given to me by Ms Stacey, the barrier to a return to work in her case seems to be more related to perceived workplace concerns rather than a primary medical problem. She has stated a number of workplace issues that she feels have contributed to the development of stress. If such concerns can be resolved through constructive dialogue, then the prognosis for a successful return to work will be greater. Answers to Specific Questions … 4. Are they likely to be covered by the Equality Act? The decision as to whether disability legislation applies is essentially a decision for an employment tribunal; however, in my opinion, the Equality Act 2010 is likely to apply. …”

[25]On 24 August 2023, the claimant spoke with Dr Catherine Yeo, who wrote a letter stating the following: “…It is obvious from our conversation today, that as a result of COVID infection, Miss Stacey continues to suffer with symptoms of Long-COVID and it is the overwhelming fatigue which has undermined both her quality of life and her ability to pursue the activities she was enjoying pre-COVID. She also suffers with joint pain and brain fog which are attributed to her COVID infection/Long-COVID.”

[26]The claimant gave evidence regarding her claimed disability of long COVID. She relied upon her disability impact witness statement dated 29 August 2023 and a further witness statement dated 31 October 2023.

[27]In her disability impact statement, the claimant describes the effect of the impairment on her day to day activities as follows:• Walking the dog shortened considerably whereas she would take the dog on long walks previously;

• Taking a chair to sit down when going to craft and antique fayres owing to the debilitating effects of the fatigue;

• Unable to enjoy time with her friends as she once did owing to tiredness;

• Daily routines such as washing and dressing taking longer;

• Reading and writing done in short bursts because of reduced concentration levels;

• Inability to drive herself around the country;

• Getting tired and having to rest when gardening;

• Suffering from brain fog and an inability to function some days;

• Having to write everything down at work owing to brain fog;

• Whilst at work, having to rest in her car or find a quiet place to sleep in the clinic;

• Significant hair loss;

• No longer able to do general household cleaning owing to fatigue.

[28]The claimant was cross-examined about these effects. It was suggested to her that the extent of these symptoms was not consistent with the medical evidence that had been provided and that she was exaggerating her claims. It was pointed out that she returned to work in January 2021 and although she was off sick with chest infections and stress, she never took any time off owing to long COVID. It was also pointed out to her that although she had consulted her GP over numerous issues, she had not made further complaints relating to long COVID. The claimant’s evidence was that she had been diagnosed with long COVID, there was nothing that the doctors could do and that she had to learn to live with it. She selfmanaged the effects of COVID, namely fatigue and brain fog, predominantly by taking naps whilst at work and note taking.

[29]Nichola Dowell gave evidence. She was based at the Central London clinic from June 2022 and the claimant was there approximately twice a week from September 2022. Ms Dowell stated that that she did not see the claimant sleeping or taking notes at work. However, Ms Dowell agreed that she was only in the same building as the claimant on approximately six occasions and she acknowledged that she was not monitoring the claimant at all times when she was at work.

[30]I find that the claimant’s evidence is consistent with the documentary evidence before me, both in terms of the medical documentation and the email correspondence. The documentation shows a history of the claimant self-reporting the effects of long COVID.

[31]The claimant contracted COVID in November 2020 and on 13 May 2021 she was referred to the long COVID clinic when she was displaying the effects of long COVID, hair loss tiredness and breathless. There was some discussion as to whether hair loss was a symptom of long COVID. I find that it is a symptom of long COVID. In the ‘Worker’s experiences of long COVID – A TUC report’, hair loss is identified as a symptom of long COVID. Furthermore, the document ‘NHS inform – Long-term effects of COVID- 19 (long COVID)’ identifies hair loss as a symptom of long COVID.

[32]On 25 October 2021, the claimant went to the long COVID clinic and her main symptoms included shortness of breath, lethargy, reduced appetite and nausea.

[33]Between February 2022 and March 2022, there was email correspondence between the claimant and the second respondent (Nicola Moore) in which the claimant’s long COVID and the impact it was having on the claimant was discussed.

[34]In June 2022, the claimant was seen by an Occupational Health Physician when she reported that she had long COVID.

[35]On 24 August 2023, the claimant had a conversation with Dr Catherine Yeo, who then wrote a letter stating that the claimant continues to suffer with symptoms of Long-COVID. Although it was pointed out that the doctor’s opinion was based on the self-reporting symptoms of the claimant, these are symptoms that the claimant has been self-reporting since November 2020.

[36]I had the benefit of hearing oral evidence from the claimant and I found her to be an honest and reliable witness. She gave measured evidence and was not prone to exaggeration in her answers. Her oral evidence is consistent with the documentary evidence and I find that she has accurately reported her symptoms and the effects that her symptoms have had on her day to day to day activities. The Law Disability

The Law

[37]Section 6(1) of the Equality Act 2010 read as follows: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities…

[38]Section 212 Equality Act 2010 defines “substantial” as being more than minor or trivial.

[39]Para. 12 of Schedule 1 of the Equality Act 2010 provides that when determining whether a person is disabled, the Tribunal “must take account of such guidance as it thinks is relevant.” The “Equality Act 2010 Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability” (May 2011) (the “Guidance”) was issued by the Secretary of State pursuant to s. 6(5) of the EA 2010.

[40]The Guidance sets out a number of factors to consider including: the time taken by the person to carry out an activity [paragraph B2]; the way a person carries out an activity [B3] and the cumulative effects of an impairment [B4].

[41]The Guidance provides the following examples of what is meant by “normal day to day activities” at [D3]: “In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities…”

[42]Schedule 1, part 1, para. 2 of the Equality Act 2010 defines “long-term” as follows: (1) The effect of an impairment is long-term if - (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

[43]In Goodwin v Patent Office [1999] I.C.R. 302, Morison J (President), provided some guidance on the proper approach for the Tribunal to adopt when applying the provisions of the Disability Discrimination Act 1995. Morison J set out four questions to be answered by the Tribunal in order. This four-stage approach was approved more recently by the Court of Appeal in Sullivan v Bury Street Capital Limited

[2021] EWCA Civ 1694

, where Singh LJ listed the questions as:• Was there an impairment? (the ‘impairment condition’);

• What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’);

• Were they more than minor or trivial? (the ‘substantial condition’);

• Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).

[44]Singh LJ emphasised that these are questions for the Tribunal; although it may be assisted by medical evidence, it is not bound by any opinion expressed.

[45]Underhill J (President) in J v DLA Piper UK LLP 2010 WL 2131720 suggested (para [40]) that although it was still good practice for the Tribunal to state a conclusion separately on the question of impairment, as recommended in Goodwin, there will generally be no need to actually consider the ‘impairment condition’ in detail: “In many or most cases it will be easier (and is entirely legitimate) for the tribunal to ask first whether the claimant's ability to carry out normal dayto-day activities has been adversely affected on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from an impairment which has produced that adverse effect. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve the difficult medical issues.”

[46]In Goodwin Morison J warned of the risk of “disaggregating” the 4 questions – i.e. whilst they can be addressed separately, it is important not to forget the purpose of the legislation, and to look at the overall picture. This warning was emphasised by HHJ Tayler more recently in Mr A Elliot v Dorset County Council,

UKEAT/0197/20/LA

. He also held that the focus is on what a disabled person cannot do or can only do with difficulty, rather than on the things that the person can do.

[47]The relevant point in time to be looked at by the Tribunal when evaluating whether the claimant is disabled under s. 6 is not the date of the hearing, but the time of the alleged discriminatory act: Cruickshank v Vaw Motorcast Ltd [2002] I.C.R. 729. Conclusions Does the claimant have a physical impairment

Conclusions

[48]The respondent submits that although the claimant suffered from a sickness, namely COVID in November 2020 and that the effects may have lingered for a time, she is not suffering from long COVID and further or alternatively does not have any physical impairment as a result of long COVID. Any issues that she may have such as shortness of breath cannot be attributed to long COVID. However, as I have already found, the claimant is not exaggerating her symptoms and she is suffering from long COVID. Whilst the claimant has experiences a variety of symptoms, I find that she has, in particular, been suffering from fatigue, breathlessness and brain fog and these do amount to physical impairments. Do the impairments have an adverse effect on the Claimant’s ability to carry out normal day-to-day activities?15. The respondent submits that even if she does have any impairments, these have not affected her day-to-day activities. The respondent argues that many of the claimant’s complaints, such as long walks of 17 miles or driving around the country, do not amount to normal day-to-day activities.

16. However, on the findings I have made, I conclude that the claimant’s impairments have had an adverse effect on her ability to carry out normal day-to-day activities. She cannot walk as far as she used, she gets more tired, she regularly gets breathless, she gets brain fog and cannot remember things, she cannot socialise as much as she used to and she cannot do her own housework. Walking, socialising, remembering things and housework are normal day-to-day activities and as a result of long COVID, the claimant cannot do these things in the way that she used to. Is that effect substantial?

17. The effect of her impairments is substantial, in that it is more than minor or trivial. As I have already found, the claimant has not been exaggerating her complaints. She is unable to do the things that she used to and has had to adjust her lifestyle to manage the effects of long COVID. She is no longer able to walk in the way she used to, socialise in the way she used to, clean her house in the way she used to or work in the way that she used to. The claimant has had to significantly readjust her life to take into account the effects of long COVID and I conclude that the effect of her impairments on her life has been a substantial one. Is the effect long-term

18. The claimant began experiencing fatigue and breathlessness when she first contracted COVID in November 2020. Whilst her condition in November 2020 was far more serious then that it is now, and her health has improved, she has continued to suffer from the effects of COVID and continued to experience breathlessness, fatigue along with other symptoms. It is difficult to identify when the claimant first began to have long COVID as opposed to COVID itself but she has continued to have physical impairments, namely fatigue and breathlessness since November 2020 and then additional impairments since then. Although she was not referred to the long COVID clinic until May 2021, I find that she had been suffering from physical impairments long before that and at least from January 2021. She continues to suffer from physical impairments and I conclude that these impairments have lasted significantly longer than 12 months. These are long-term impairments. Conclusion

19. I conclude, looking at all the evidence in the round, and having reminded myself that whilst it is helpful to address each of the Goodwin questions not take my eye off the whole picture, that the claimant has shown that she was suffering from a disability at the material time, namely between January 2021 and October 2022. Date: 20/11/23 Tribunal Judge J E Plowright acting as an

The issues

[49]If the employer is able to show that there was a genuine redundancy situation so that it had a potentially fair reason for the dismissal the general test for fairness under section 98(4) ERA must then be applied. This provides: 16 of 60 Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

[50]The overriding consideration for the tribunal under section 98(4) ERA is one of fairness and whether the decision to dismiss, including the procedure followed by the employer that culminates in dismissal are within the band of reasonable responses which a reasonable employer might have adopted (see Iceland Frozen Foods v Jones

1982 IRLR 439

; Sainsbury’s Supermarkets Ltd v Hitt

2003 ICR 111

[51]In the context of a redundancy dismissal the EAT set out guidelines in Williams and others v Compare Maxim

1982 ICR 156

for assessing fairness. These guidelines, transposed to circumstances in which there is no involvement of a trade union, can be summarised as follows:(1) Was the employee warned and consulted about the redundancy?

(2) Were the selection criteria objectively chosen and fairly applied?

(3) Was there consideration of any alternative available work? This list should not be treated as absolute and a Tribunal must consider the particular circumstances of each case.

[52]Consultation should take place at a time when it can potentially make a difference to the proposal, and in such a way that responses to a proposal are considered and reﬂected upon, prior to a decision being made.

[53]Where there is no customary arrangement or agreed procedure, employers have a good deal of flexibility in defining the pool from which they will select employees for dismissal (see Thomas and Betts Manufacturing Co v Harding

[1980] IRLR 255

). They need only show that they have applied their minds to the problem and acted from genuine motives. A relevant factor will be whether there are other employees doing similar work and / or other jobs which are interchangeable. The overarching question is whether the employer’s choice of pool fell within the range of reasonable responses available in the circumstances. Unfair dismissal – adjustments to the compensatory award

[54]A tribunal will be expected to consider making a reduction of any compensatory award under section 123(1) ERA where there is evidence that the employee might have been dismissed if the employer had acted fairly (see Polkey v AE Dayton Services

[1988] ICR 142

, HL; King and ors v Eaton (No.2)

[1998] IRLR 686

, Ct Sess (Inner House); and also Software 200 Ltd v Andrews and ors

[2007] ICR 825

). 17 of 60 The evidence and procedure

[55]The claimant gave evidence herself.

[56]For the respondents, we heard from:• Nicola Moore (Executive Director of Quality and Governance, the claimant’s line manager, and the second respondent);

• Richard Bentley (UK Managing Director and the third respondent);

• Michele Baxendale Nichols (Head of Nursing and Midwifery);

• Amanda Couper (Global Director of Legal, Safeguarding and Donor Compliance); and

• Terri Springford (Clinical Excellence Lead for Infection and Control, formerly titled Infection and Control Nurse Specialist).

[57]There was a hearing bundle of 1401 pages. Additional documents were added by agreement. We read the pages to which we were referred.

[58]During the hearing, the respondents disclosed additional documents relating to the claimant’s grievance, which the parties agreed would not be admitted to the evidence, for the reasons discussed.

[59]We also considered the parties’ written and oral closing submissions.

[60]References below to [ ] and [X/ ] are to the hearing bundle and witness statements, respectively.

[61]On the first day of the hearing, the respondents applied for the claimant’s witness statement to be struck out or for it to be admitted but given little weight or for it to redrafted. This application was considered on the second day of the hearing when the claimant agreed to remove parts of the statement, the claimant confirmed the parts of the statement which amounted to her contemporaneous evidence and we decided that no weight would be given to any parts of the statement which were agreed or which we found amounted to commentary, opinion, argument or submissions.

[62]We refused the claimant’s application on the second day of the hearing to adduce expert evidence, for the reasons we gave.

The facts

[63]Having considered all the evidence, we make the following findings of fact on the balance of probabilities. These findings are limited to points that are relevant to the legal issues.

[64]The first respondent is a registered charity. It provides abortion, vasectomy and contraception services to patients throughout the UK and world. The UK division of the first respondent, the part of the business in which the claimant was employed, has approximately 700 employees across 65 sites. It is regulated by the Care Quality Commission (“CQC”). In the UK, 99% of these services are delivered for and behalf of the NHS. 18 of 60

[65]The claimant was employed by the first respondent from 4 June 2007 until her dismissal on 28 October 2022. She was initially employed as a Health Care Assistant (“HCA”) and was promoted to the role of Head of Ultrasound Service Assessor (“HUSA”) on 18 July 2016.

[66]She was initially line managed in this role by Betty Njuguna, Associate Director of Nursing and Head of Quality, until the end of August 2021 when Nicola Moore, Executive Director of Quality and Governance, and the second respondent, took over this responsibility. Richard Bentley, the third respondent, was the Managing Director of the first respondent at all material times.

[67]The claimant was employed throughout the three lockdowns imposed by the UK Government in response to the Covid-19 pandemic: from 23 March – 4 July 2020 (the first lockdown); 5 November – 2 December 2020 (the second lockdown); and 6 January 2021 – 6 April 2021 (the third lockdown). A three-tier system of restrictions was introduced on 2 December 2020, with London placed initially in tier three, before it was moved to a new, stricter, tier four, on 21 December 2020.

[68]The first respondent circulated Covid risk assessments to all staff with its business update bulletins dated 2 July and 7 September 2020. The September 2020 bulletin included the following entry from Terri Springford, Infection Prevention Control Nurse Specialist, [953-954] (our emphasis added): “Covid-19 Risk Assessment A Covid-19 Risk Assessment document as attached was included within the Business Update Bulletin on 2nd July, however, it has come to light that not all colleagues who consider they are within the Vulnerable and BAME groups have completed the risk assessment with their manager. ALL TEAM MEMBERS Please ensure you complete the attached risk assessment as you may be at a higher risk if coronavirus is contracted, which means the virus is likely to have a more serious impact on your health. We ask that should any colleague identify within any of the high risk categories, which are detailed within the health condition/other factors section, please speak directly with your line manager to arrange an individual risk assessment…”

[69]It is evident from this bulletin that the first respondent was concerned that those staff who were, or who self-identified as being, at a greater risk of harm from Covid had failed to respond to the previous bulletin in July. They were being implored to complete the attached risk assessment themselves or to contact their line manager so that one could be completed. The claimant took no action at this stage. She did not complete a risk assessment form. The claimant’s oral evidence was that she had discussions with Ms Njugana about her health, something which her witness statement omitted. The claimant did not give any specific details about what she discussed and when. In any event, there is no evidence that the claimant asked Ms Njugana to complete a risk assessment 19 of 60 with her. In one sense, the claimant’s inaction is at odds with her stated concern about the risk of Covid to herself and her daughter, which made it incumbent on her to ensure that a risk assessment was completed. The claimant’s evidence that she may not have seen the July and September bulletins is not credible. We find that the most likely explanation for the claimant’s inaction was that she was working from home and was not therefore concerned about the risk of exposure to Covid through work.

[70]A further bulletin was sent out to staff on 8 October 2020 [971] reminding staff who identified as being in a high-risk category to complete a risk assessment.

[71]In mid-2020, Ms Njugana spearheaded the formulation of the Nursing and Midwifery Strategy 2020-2023 [1298-1313]. This strategy identified the need for the claimant to lead on making improvements to ultrasound scanning practice [1305] which included:• Improving opportunities for nurses and midwives to learn how to scan and to scan up to legal limit gestation.

• Reviewing ultrasound scanning training every 6-8 weeks instead of quarterly.

• Increasing iLearn training compliance for ultrasound scanning from the current figure of 75%.

• Increasing individual scanning practitioner yearly audits to 95%.

• Commencing quarterly compliance audits for each centre. This underlined the need to increase the number of nurses and midwives who were trained and assessed as being competent to scan. The strategy envisaged that this action would be taken between September 2020 and June 2021. As Mr Bentley explained in his witness statement [RB/8], ultrasound scanning was identified as a key area for development in the Nursing and Midwifery Strategy because of the need to improve the numbers of staff who could o scan to respond to client demand.

[72]We also accept Mr Bentley’s oral evidence that Covid had created significant operational difficulties for other abortion service providers which placed a greater pressure on the first respondent to provide this essential and timedependent service in respect of which the ultrasound service was a vital part.

[73]We therefore accept that there was a legitimate business need for the claimant to visit clinics because it was imperative for the organisation to increase the numbers of staff who were able to carry out scans. Remote working had been necessary to deal with the novel and unforeseen circumstances of the Covidpandemic but the claimant was required to attend clinics to lead, ensure compliance with training competencies and manage client relationships. She was also required, as she agreed in oral evidence, to train mentors as well as to monitor, assess and audit trainees.

[74]Consequently, by October 2020 there was a greater emphasis on the claimant visiting the centres to meet this key objective. In a progress update report dated 2 October 2020 [1308-1313] Ms Njuguna identified the additional need to 20 of 60 identify more trainers and support for trainees. Her report also recorded that the claimant had visited three centres that week and she would be provided with additional administrative support so that she “can be more visible within the centres” [1309].

[75]In the claimant’s personal diary she wrote the following entry on 27 October 2020 [251-252] (our emphasis added): “*Notes * 27/10/20• 2/10/20 – Betty very aggressive on phone [.] I repeated that if they want me out going down performance managing is wrong & they do the right thing – pay me out, Betty’s response shall I do that for you

• Admin taken away from me

• Must be visible in centres 4 days a week” We infer from this entry that the claimant understood that her performance was being questioned and we find that it is likely that this related to the requirement for greater visibility through attendance at the clinics and her resistance to this instruction. Whilst we accept that part of this reluctance arose from the claimant’s concerns about the increased risk of contacting Covid and the attendant risk to her vulnerable daughter, another factor was that the claimant felt that her work could be done remotely without the need to visit clinics. What is also clear from this entry is that faced with the prospect of performance management, the claimant’s immediate response was to seek a negotiated exit. The claimant agreed when giving evidence that that was her preference if given the choice between those two options.

[76]On 15 October 2020 the UK Government announced local Covid19 alerts. At the end of that month, new national restrictions were announced with the second lockdown coming into effect from 5 November 2020.

[77]Returning to the claimant’s diary entry dated 27 October 2020, she referred to a discussion with Ms Njugana and Ms Clayton-Smith on 15 October 2020 [251- 252]: “*Notes * 27/10/20 …• 15/10/20 Betty / Pippa – more noise around USS/ very pointed towards JS – PCS commented after the call…

• Disabled daughter not appropriate …

• Betty said, Richard is gunning for me – but why?? What have I done wrong as only a few weeks ago you were calling me a star!” The claimant made no reference to a risk assessment.

[78]The date of this diary entry coincided with the third meeting between the claimant and Ms Njuguna that month, on 27 October 2020, when Holly Kingswood, UK HR Manager, was in attendance. This meeting is referred to in 21 of 60 the grievance investigation report [646] completed into the complaints made by the claimant in April 2022 (to which she shall return). Although the claimant’s evidence was that Ms Njugana had told her that she needed to attend clinics five days a week and Ms Kingswood repeated this proposal at the meeting on 27 October 2020, there is no contemporaneous evidence to substantiate this. Nor does it tally with the claimant’s diary note that she was told that she would need to be “visible” at the clinics for four days a week [251]. In any event, it was agreed at the meeting on 27 October 2020 that the claimant would visit clinics three days each week. According to the investigation report, Ms Kingswood recalled that this meeting had been convened because the claimant “was unhappy there had been comments made about her daughter” and during that meeting the claimant “raised comments about her daughter” [641]. There is a lack of clarity about what those comments were. What is clear is that the claimant, Ms Njugana and Ms Kingswood each failed to consider whether a risk assessment should be completed before the claimant was required to increase the frequency of visits at a time when national restrictions had been announced and their implementation was imminent. Ms Kingswood had also recalled (as the investigation report noted) that during this meeting the claimant raised “other issues she was unhappy about including that “the organisation didn’t want me there”” [643].

[79]The claimant’s oral evidence was that work felt very difficult and she felt isolated. She felt that there was a movement towards the team being led by Ms Clayton-Smith because the latter was a qualified nurse and sonographer whereas she had neither of these professional qualifications. It is likely that the claimant felt that this was related to the Nursing and Midwifery Strategy. Additionally, the claimant felt that she was not being included in some meetings and Ms Clayton-Smith would come and tell her about changes which she should have been known about first, as she was Ms Clayton-Smith’s line manager.

[80]Pausing here, we observe that by late October 2022, the claimant felt her performance had been questioned, her stated preference was a termination payment instead of performance management, and she apprehended that the implementation of the Nursing and Midwifery Strategy would lead to her replacement by Pippa Clayton-Smith, Lead Ultrasound Sonographer (“LUS”) (whom the claimant line-managed) because of the need for the Ultrasound Team to be led by a qualified clinician. It is also notable that the claimant had been asked to visit the clinics for four days a week with the aim of improving compliance by increasing the number of ultrasound-trained clinicians and she had agreed to carry out visits for three days a week. These issues therefore preceded Ms Moore’s line-management of the claimant as well as the claimant’s disability.

[81]We accept Mr Bentley’s evidence that he was not involved in the decision concerning the number of days the claimant visited clinics, although it is likely that he was supportive of a return to in person attendance at clinics because of the pressure on the organisation to meet client demand. He had no obvious reason to be involved to that degree. This was an operational decision for Ms Njuguna to take in conjunction with the claimant. 22 of 60

[82]The claimant tested Covid-positive on 2 November 2020. She was admitted to hospital on 9 November 2020 where she was treated in the High Dependency Unit (“HDU”) and discharged one week later. She remained on sickness absence until she returned to work on 4 January 2021. During this period she sent fit notes dated 2, 13 and 23 November 2020 which referred, respectively, to “Cough”, “Lower respiratory tract infection COVID 19” and “Coronavirus infection” [745,746, 750].

[83]Although the claimant met with Ms Njugana on her first day back at work, on 4 January 2021, it is agreed that her manager failed to conduct a return to work meeting or make an Occupational Heath (“OH”) referral. During the hearing, the claimant withdrew her allegations that these omissions amounted to discrimination arising from her disability.

[84]The claimant claims that as a result of their discussion on 4 January 2021 she put Ms Njuguna on notice that she had the disability of Long Covid. We reject that assertion. The claimant’s evidence was that she told Ms Njuguna that she thought she had Long Covid, she had ongoing symptoms of tiredness and breathlessness on exertion, and lethargy [C/35], and further investigations were planned. It is from this date that the claimant has been found to have been disabled. However, we find that having contracted Covid a little more than two months previously the information which the claimant maintains she conveyed to Ms Njugana was insufficient to fix her manager with actual or constructive knowledge of disability i.e. that the symptoms she reported were likely to last for 12 months.

[85]We accept the claimant’s evidence that at her appraisal meeting later that month Ms Njugana suggested that she contacted another colleague to explore a different role within the organisation. This is consistent with an email the claimant sent to that colleague on 22 January 2021 [256]. The claimant claims that this suggestion came from Nicola Moore, on the basis that the claimant told Ms Njugana that she had Long Covid earlier that month, and was the genesis of Ms Moore’s alleged decision to demote her. The claimant agreed that she had no evidence to substantiate this allegation. She told the Tribunal it was just something she believed. However, in closing submission, Mr Philpott conceded that Ms Moore did not have knowledge of the claimant’s medical history and disability until February 2022, so that allegation is unsustainable.

[86]Although we were not taken to any record of that appraisal meeting, the claimant’s objectives which Ms Njugana set were reviewed at her end of year review meeting with Ms Moore in February 2022 and included objective 3 [885]: “To align with the Nursing Strategy and to complete 50% of training of nominated RN/RMs by Q1, 75% trained by Q2, 3 & 4. To ensure that 2 team members from each centre are 2nd Trimester trained 50% by end of Q1 to be maintained in Q3 & 4.”

[87]The claimant was appointed Speaking Up Guardian on 17 August 2021.

[88]Ms Moore took over as the claimant’s line manager in September 2021. 23 of 60

[89]The claimant was diagnosed with Long Covid on 25 October 2021.

[90]We accept Ms Moore’s evidence [NM/9] that after taking over responsibility for nursing and midwifery, she became concerned about the lack of progress in relation to the delivery of ultrasound training which was impacting on implementation of the Nursing and Midwifery Strategy, and compliance with training KPIs.

[91]The claimant was aware of this concern because this issue was discussed at a meeting between Ms Moore, the claimant and Jason McShane, Head of Operations, on 28 January 2022. Significant improvements were required. It was agreed that many of the issues arose from the challenges posed by Covid and no direct criticism of the claimant was made at this meeting. However, the nature of the claimant’s role meant that she was central to delivering the improvements required and we find that Ms Moore held that the claimant was responsible to some extent for the lack of progress to date; as became clear at the claimant’s review meeting the following week, when she identified issues with the claimant’s performance which needed to be addressed. In oral evidence, the claimant agreed that they discussed Ms Moore’s concern about the number of staff being trained and her managers sought her reassurance that she would achieve the improvements that were needed. Ms Moore subsequently referred to this meeting in her without prejudice (“WP”) letter dated 28 March 2022 (the “WP letter”) when she explained that it had been convened [273] “after I had become concerned regarding the progress that was being made in the delivery of ultrasound training to support the Nursing and Midwifery Strategy…You agreed to formulate targeted plans with those centres that required more support to ensure their team members were trained…” The claimant made no reference to Long Covid during this meeting. End of year review meeting on 3 February 2022

[92]The claimant’s end of year review meeting with Ms Moore took place the following week, on 3 February 2022. As is evident from the record of this meeting, dated 6 April 2022 [885-886], which Ms Moore sent to the claimant around that date, there were several areas of performance which she identified as requiring improvement. In that document, Ms Moore confirmed that the claimant had met two of her four objectives and concluded [886]: “In summary, Julie requires to be more proactive and engaged with me in order that we can deliver an upward trajectory in organisational performance. Julie requires to be more visible across all our centres as the Head of Ultrasound and adopt a more strategic approach to ensure the right centres have the right competencies to provide a full range of services where ultrasound is concerned.” Notably, the objectives which the claimant had not achieved or only partially related to the provision of training. This included objective 3, which the claimant had not met (see paragraph 85). Although Ms Moore acknowledged that this 24 of 60 was an organisational objective for which the claimant was “not solely responsible” [885] and she recognised that there were other factors outside the claimant’s control such as local managers (CSMs) not identifying and releasing staff for training, staff turnover and sickness, she noted: “However, it was discussed that there is a requirement for Julie to work more proactively in ensuring training resource is prioritised…Also, there is an ongoing need for Julie to identify and escalate concerns that prevent the organisation making progress…We also discussed the need for Julie to be more visible and get out more to centres. I stated that Julie had not been out enough. Julie agreed that she had not been out much as she knows she should have been and was nervous about the risk of Covid. However, it was stressed that this was a face-to-face role and fundamental in training our RN/RMs to deliver care so necessary.” We find that it is clear from this document that criticisms had been raised concerning the claimant’s performance and about the improvements she was required to make during this meeting. The claimant does not say that Ms Moore’s summary of the appraisal meeting was materially inaccurate and we do not, in any event, find that Ms Moore misrepresented their discussion. These improvements included that the claimant needed to take a more strategic approach, work more proactively and to increase her visibility by getting out more to the clinics (the latter being an issue which Ms Njugana has apparently raised with the claimant in October 2020). The corollary of this was that the claimant’s performance had been lacking in these qualities and this had impacted on the training numbers. Given the proximity of these meetings, we find that it is likely that these performance issues had already become apparent to Ms Moore before the meeting on 28 January 2022 and had prompted that earlier meeting, to some degree. It follows that Ms Moore was concerned about the claimant’s performance before she knew about the claimant’s disability.

[93]In oral evidence, the claimant agreed that she discussed her disability for the first time when Ms Moore raised her concern that she was not visiting centres as much as was required. It is agreed that the claimant referred to Long Covid and her related symptoms of ongoing tiredness, a cough and breathlessness, and to her hospital admission and sickness absence in late 2020. The claimant also accepted that she was in effect telling Ms Moore that her disability was impacting on her ability to carry out this aspect of her role. Ms Moore also referred to this in her WP letter [274]: “I had not been aware you were finding elements of the role challenging at this point although I was concerned that you had not been visiting centres as much as was needed to properly fulfil the requirements of your role and audit objectives. I did raise this with you at the time, whereupon you admitted to me that you had not been out as much as you should have been. You assured me that you are now going out more but had not been able as you are suffering from Long Covid which made you very tired. I was surprised to hear this since I had not been made aware until then…” The claimant’s assertion to the contrary, in her letter dated 23 February 2022 (which we refer to in greater detail below), i.e. that they had not on this occasion discussed “any concerns around my long covid” [271] was therefore incorrect. 25 of 60

[94]During this meeting, the claimant also complained that Ms Njugana had failed to hold a return to work interview and make an OH referral in early January 2021. Ms Moore referred to this in the appraisal document when she noted [886]: “To date, she has not had an occupational health review but we discussed the opportunity to take advantage of this service so any reasonable adjustments can be made (I followed this up in writing…)” The claimant did not also complain about the failure to complete a risk assessment in October 2020.

[95]Following their meeting on 3 February 2022 Ms Moore sent the claimant a supportive email [259] in which she wrote: “I was sorry to learn…in January 2021 after significant illness and a spell in HDU following Covid infection…As shared by you today, you continue to suffer from long covid, which has left you with ongoing tiredness, cough and breathlessness. I want you to be assured that you will still receive my ongoing support and that an occupational health referral offer still stands if you feel this is needed. If you are struggling to cope with the demands of your role, particularly the travel involved, please raise this with me proactively so I am aware and can agree on an appropriate plan moving forward.” The claimant does not say and we do not find that this was anything other than a genuine offer made to establish whether there were any adjustments that could be made to support the claimant.

[96]We find that Ms Moore had actual, or at the very least, constructive knowledge of the claimant’s disability from this date. The claimant had explained that she continued to suffer with Long Covid and the symptoms of tiredness and breathlessness, in addition to a cough, since late 2020. Ms Moore was or should have been cognisant that the claimant had a physical impairment which had had a substantial adverse and long-term impact on the claimant in that she had been hospitalised with Covid in late 2020, and continued to suffer with tiredness and breathlessness which would self-evidently have impacted on her daily activities.

[97]As part of this review meeting, Ms Moore set the claimant new objectives for 2022 which included [886]: “2. Working with CSMs, to ensure that all ultrasound training courses are filled to run at full capacity… 3. To ensure that there is a sustained improvement in the number of colleagues who can perform post treatment ultrasound, achieving 80% compliance by year end… 4. To work clinically across the organisation in our centres/clinics averaging no less than three times a week to ensure team members are trained, assessed and audited in a timely manner.” 26 of 60

[98]The claimant was absent from work for four days from 8 March 2022 with a chest infection / respiratory issue. This was not related to her disability.

[99]In the meantime, and despite her complaint about Ms Njugana’s failure to make an OH referral in January 2021, the claimant did not respond to Ms Moore’s offer of an OH review or to highlight that any part of her work, including visiting centres, that she was finding difficult to manage. The claimant agreed in evidence that this was a deliberate omission.

[100]We would add that, as is plain from the terms of the first respondent’s Absence Policy [660], an OH referral could be not made without the claimant’s consent. Mr Philpott’s submission to the contrary was misconceived. The claimant’s interactions with Ms Moore on 15 and 16 March 2022 (issues 1.1 (c) & (d))

[101]The claimant returned to work on 15 March 2022 when she visited the West London clinic. When the claimant came into the building she was directed to go up to the first floor office to meet Ms Moore. This was an unscheduled meeting.

[102]The claimant alleges that during this meeting Ms Moore told her that she was too ill to work because she had Long Covid and she offered the claimant a payment in return for her resignation. Notably, the claimant’s oral evidence was that this was how she felt which appeared to be a concession that Ms Moore did not actually tell her she was too ill to work because of her disability. We do not find, in any event, that this was what Ms Moore told the claimant nor that she offered the claimant a termination payment, as alleged.

[103]It is agreed that the claimant and Ms Moore had a protected conversation. Ms Moore’s evidence was that this was not premeditated. The claimant agreed, she claims that it was an opportunistic attempt by Ms Moore to engineer her exit, because of her disability and / or because of a disability-related assumption held by Ms Moore that she was unfit to carry out her job because she had Long Covid.

[104]As it had not been Ms Moore’s intention to have a protected conversation with the claimant, she had intended to speak to the claimant about something else. We accept her evidence that she remained concerned that the claimant was not visiting the centres as frequently as required, as they had recently discussed at the review meeting and the claimant had not taken up her offer of an OH referral. Ms Moore had reviewed the claimant’s expenses and calculated that she had visited the centres on average for 1.7 days each week since early 2019. We find that it is likely that Ms Moore therefore wanted to explore this issue with the claimant. As Ms Moore said in oral evidence, she needed to understand whether there were any impediments to the claimant visiting offices with greater frequency and if these were related to Long Covid, to obtain OH advice so that the claimant could be supported to achieve this important business objective. 27 of 60

[105]Having climbed the stairs, the claimant was breathless, had to sit and took several minutes to recover. The claimant was still recovering from her recent chest infection and remained on antibiotics. We find that Ms Moore had actual knowledge of the claimant’s disability from this date, if not from the earlier date of 3 February 2022, because the effect on the claimant’s daily activities was now apparent to Ms Moore, as she explained in her witness statement [NM/15] (underlined for emphasis) “I was immediately concerned and could see the impact her long covid was having on her and asked her not to talk, but just sit calmly and catch her breath. She said she was tired, saying it’s not easy, and that she gets home exhausted.”

[106]We accept the claimant’s evidence that the initial discussion centred on her visits to clinics when Ms Moore referred to the claimant’s expenses, which is consistent with Ms Moore’s evidence that she had recently reviewed these expenses. It is agreed that Ms Moore asked the claimant why she had not taken up her offer of an OH referral and the claimant explained that she was concerned that she would be assessed as being unfit to perform her role. We prefer Ms Moore’s evidence over the claimant’s that the claimant also told her that she felt that she should only be working three days a week instead of five but this would not financially viable. The claimant’s evidence that this was a reference to the number of days visiting clinics did not make sense in the context in which she was also explaining to Ms Moore that she could not afford to go down to three days a week, and she agreed that she told Ms Moore that she would have liked ideally to work three days a week. Ms Moore also referred to this in her WP letter. We therefore find that the claimant was conveying to Ms Moore that she was concerned about her fitness to perform her role, particularly because of the requirement to visit clinics more regularly.

[107]We find that Ms Moore did not suggest a protected conversation until after the claimant had explained her reluctance to have an OH assessment, contrary to Ms Moore’s witness evidence [NM/19], because that is consistent with what Ms Moore told the grievance investigation in May 2022 [650] and what she wrote in her WP letter (although in that letter, Ms Moore erroneously stated that she offered the claimant a protected conversation on 16 March 2022, having reflected overnight on what the claimant had told her). We accept the claimant’s evidence that Ms Moore referred to her duty of care towards her as this is consistent with Ms Moore’s oral evidence that the organisation needed the claimant to be able to meet the demands of increased activity and she could see that the claimant was struggling and was unwell, but she was concerned about asking the claimant to do something which could be detrimental to her health. This is also consistent with what Ms Moore wrote in her WP letter [274]: “It was clear you were suffering and knowing how much I needed you to be out visiting centres, to increase the training and audit compliance, I was concerned that without an occupational health referral confirming you fit to work, you would suffer further and I did not want to be responsible for contributing to a potential deterioration of your health. I explained I had a duty of care to you as your line manager. It was at this point that knowing that you did not wish to go through 28 of 60 an occupational health referral, I offered you a without prejudice conversation which you accepted…”

[108]We also accept Ms Moore’s oral evidence that she did not explain why she wanted to have a protected conversation. Her evidence was that this was the first time she had initiated or conducted such a discussion. We also accept her evidence that she suggested this protected conversation with the claimant on her own initiative and without input from Mr Bentley and, conversely, we accept his evidence that they did not discuss this until after it had taken place.

[109]We also accept Ms Moore’s oral evidence that as soon she suggested a protected conversation, the claimant seized the opportunity and said “Let’s do it” and proceeded to ask “How much can you offer me?”, that Ms Moore told the claimant that this was not how it worked, she asked the claimant what she wanted and the claimant asked for a year’s salary. This evidence was detailed, plausible, consistent with what Ms Moore told the grievance investigation [650] and consistent with the claimant’s stance in October 2020 when she felt that her performance was being questioned and her stated preference for a termination payment over potential performance management. It was clear she felt that her performance was being questioned by reference to her ability or willingness to visits clinics (as we have found to be the case in October 2020). We also accept Ms Moore’s evidence that she told the claimant that she would need to take advice before responding and she suggested that in a redundancy situation, which she said this was not, the claimant would receive around £25,000. The claimant was disappointed and upset by this figure. We therefore find that Ms Moore did not make an offer but was responding to the claimant’s focus on a termination payment and proposal of a year’s salary.

[110]We have accepted that this conversation was not premeditated. Nor do we find that Ms Moore had a particular outcome in mind, although we find that one potential outcome was a negotiated exit, as is consistent with the purpose of the protected conversation or an “off the record” discussion which Ms Moore had suggested. We do not therefore accept Ms Moore’s evidence that her suggestion of a protected conversation was solely to give the claimant a safe space to discuss her health. Her oral evidence was that the £25,000 redundancy payment she cited was a “ball-park” figure which she had not prepared in advance, as this had not been a premeditated conversation. Although we have accepted her evidence that the conversation was not premeditated, this “ball-park” figure was close to the £24,198.00 payment that the claimant was offered the next morning and also to the sum paid to the claimant when she was dismissed later that year, which included a statutory redundancy payment and a payment in lieu of notice, and we do not find that this can plausibly explained as a simple coincidence. Rather, this suggests to us that Ms Moore had already looked into the claimant’s length of service, salary, the first respondent’s Redundancy Policy and her notice period. We infer from this that because of the performance concerns Ms Moore had she had begun to consider the cost of a negotiated exit. As we have found, those misgivings preceded Ms Moore’s knowledge of the claimant’s disability. We are satisfied that Ms Moore would not have suggested a protected conversation at this juncture but for the claimant’s frank admission about her capacity to carry out her role. 29 of 60

[111]We have found that Ms Moore had actual knowledge of the claimant’s disability on this date, if not before. We would add that although we find that Ms Moore was now also concerned about the claimant’s capacity, on health grounds, in addition to the performance concerns she already had, we do not find that she had made any assumptions about the claimant’s health capacity. It was not unreasonable or discriminatory for her to take what the claimant had told her at face value. As Ms Moore said in evidence, there remained a lack of clarity about what impact, if any, the claimant’s disability had on her ability to perform any aspects of her role which required input from OH, which was something she had already offered the claimant and was one of the options she came back with the next day. In these circumstances, we do not find that Ms Moore was acting improperly or oppressively in seeking an off the record discussion with the claimant. We also find that Ms Moore would have taken the same approach to a hypothetical comparator in the same circumstances as the claimant, who did not have Long Covid.

[112]The claimant therefore correctly understood that a negotiated exit was a potential option and she seized the opportunity to explore a termination payment.

[113]The claimant and Ms Moore spoke twice the next day, in advance of which Ms Moore conferred with Mr Bentley as she required his authority to make an offer to the claimant. Without being able to recall the specific details of this discussion, Mr Bentley’s evidence was that Ms Moore conveyed that her primary concern about the claimant was her health and welfare, and he referred Ms Moore to HR and Legal, and delegated any final decision to Ms Moore. Ms Moore then took advice from HR before reverting to the claimant.

[114]The first of these calls took place in the morning when the claimant was visiting the Bristol clinic. Although Ms Moore could not recall this conversation and the claimant made no reference to it in her witness statement, the claimant referred to it in her email to Ms Moore dated 19 March 2022 [266]. During this call, Ms Moore presented the claimant with three options: a negotiated exit with a termination payment of £24,198.00; an OH review with the claimant’s agreement; or to take and remain on sick leave and be subject to ill-health capability under the Absence Policy.

[115]They spoke again in the afternoon by phone. The claimant recorded this discussion covertly. The claimant’s evidence is that this was necessary because she was driving her car, however, she did not inform Ms Moore that she was recording their conversation. According to the transcript [261-263], the contents of which are agreed, Ms Moore confirmed an increased offer of £30,000 which she explained “I have had to really push for…equivalent to eight or nine months salary I think given as I said earlier on given that we are not obliged that is probably a really good offer…”

[116]We reject the claimant’s allegation that Ms Moore told her to take sick leave during either of these calls on 16 March 2022. As is clear from the transcript of the second call, Ms Moore asked the claimant “What are you going to do in the 30 of 60 meantime?" and “You gonna work? What are you gonna do so that I know?” which shows that the claimant had the option of remaining at work instead of taking sick leave, as the claimant agreed when giving oral evidence. Taking sick leave was one of the options on the table. The claimant also agreed that the transcript of their second call on 16 March 202 did not show that Ms Moore told her that she was too ill to work and we do not accept her unsubstantiated assertion that this is what Ms Moore told her during their first call as it does not correspond with their discussion that afternoon.

[117]What is also clear from this transcript is that Ms Moore understood the claimant was unwell, the claimant told Ms Moore that she felt stressed and Ms Moore encouraged the claimant to take some time out to obtain advice and consider her options “[JS] – Like we spoke earlier about like perhaps take some time out with the doctor and ask the doctor to sign me off for a bit to…I’m all over the place at the moment if that’s okay… [NM] – Yeah, that’s absolutely fine so that I kinda feel that would be a good thing for you to do so then because you have got that on your record say you are not able to work its as simple as that it is probably the easiest thing for you to do[.] I was even thinking after I finished talking to you I think given the fact that this is covid related so that you could actually make the argument I can’t work at all and then they can pay you more because I think you get something like ESP [ESA]…you need to go and take some advice as to what your benefits package could look like maybe you’d be better off… …I just want to do the right thing by you and make sure you’re well covered but go and take that advice… [JS] – Yeah yeah I’ll sort something out I’ll just take some time out for the time being because it’s very stressful… [NM] – It is…you’re already not well that’s the point that was the reason for the suggestion you took time out…that you properly go away and… [JS] – Think about it all…”

[118]The claimant decided to take sick leave and it was agreed that Ms Moore would tell Lauren, her Executive Assistant, and Ms Clayton-Smith that the claimant was “sick again I’m not going to say anything else…”

[119]A striking feature of the foregoing exchange was Ms Moore’s reference to benefits. We accept Ms Moore’s oral evidence that this was a response to the claimant telling her she couldn’t work more than three days a week because of Long Covid. Again, we do not find that this was indicative of any assumption being made by Ms Moore but rather she was acting out of genuine concern because of what the claimant had told her the day before.

[120]The claimant claims that on 16 March 2022 (and on 28 March 2022 which we deal with below) Ms Moore, under Mr Bentley’s direction, threatened her with a performance improvement plan (“PIP”) and the Absence Policy if she did not 31 of 60 accept the offer of a negotiated exit. We do not find that Ms Moore threatened the claimant with either of these steps on 16 March 2022 as is clear from the transcript of their second call and from the terms of Ms Moore’s subsequent email on 19 March 2022. Whilst reference was made to the Absence Policy, there is no evidence that Ms Moore made any reference to performance management on 16 March 2022. The claimant’s oral evidence was that she could not remember whether Ms Moore had threatened her with a PIP on that date, it was not referred to in the 19 March 2022 email nor the claimant’s letter dated 23 March 2022.

[121]The claimant commenced a period of sickness absence on 17 March 2022. She obtained a fit note the following day in which she was signed off work until 4 April 2022 because of stress [802]. We do not find that this sickness absence was caused by Ms Moore’s alleged disability-related conduct on 15 and 16 March 2022 because we have concluded that this alleged conduct did not take place.

[122]The claimant then wrote to Ms Moore on 19 March 2022 [266]: “Would you mind letting me know my choices again, I know the final offer is £30,000 the (compromised route), but I cannot find the notes I took on Wednesday when I was in Bristol which were my other options…”

[123]Ms Moore replied on the same date [264-265]: “The other options would be to go down the occupational health route with your consent. Or Remain off sick until you exhaust company sick pay and then we would go down the health capability route. I can’t say what the outcome would be without going down either of those processes but may be a risk in not providing you with the financial benefit of a compromise agreement hence the offer. There is nothing lost going down the compromise route as you receive independent legal advice and upon receiving that advice you can decide not to proceed. We would then go down one of the other options as though the conversation never happened.” We find that in setting out the claimant’s options in this way, Ms Moore was not seeking to coerce the claimant into agreeing to a termination payment or threatening her with any adverse consequences if she refused. The claimant agreed, in oral evidence, Ms Moore was conveying that the choice was hers to make. The claimant’s letter dated 23 March 2022 (issue 7.1 (a) (PA1))

[124]The claimant wrote to Ms Moore on 23 March 2022 [270-272]. She relies on part of this letter as a protected act for the purposes of section 27 EqA. The 32 of 60 claimant complained that the meeting on 15 March 2022 was the first time they had discussed “my Long Covid & your concerns for my health in relation to my employment – this both confused me and blindsided me as this topic hadn’t ever been discussed with you…before last week…” This was factually incorrect. As the claimant agreed when giving evidence, and as Ms Moore’s record of the February review meeting showed, the claimant raised the issue of her health at that earlier meeting in the context of her performance and specifically her concern about visiting clinics more often when Ms Moore had extended the offer of an OH referral and invited the claimant to clarify whether this was something she was “struggling to cope with” [259]. The claimant also stated that her 2020 objectives had been “signed off as achieved” and “no issues were discussed at the meeting of my performance”. Again, this was not correct. Although the claimant had not yet received Ms Moore’s record of their meeting, as it made clear, the claimant was told that she had met or only partially met two of her four objectives and performance concerns had been raised which the claimant was required to address. The claimant’s assertion that there had been no prior performance-related issues was also misplaced because, as we have found, in addition to the performance issues discussed in February 2022, the claimant had clearly understood that her performance had been questioned by Ms Njuguna in October 2020 and Ms Njuguna had suggested that she considered a different role within the organisation at the appraisal meeting in January 2021 which is indicative of ongoing performance issues.

[125]The claimant relies on the following as being a protected act on the basis that she was making an allegation, whether expressly or impliedly, of unfavourable treatment based on something arising from her disability i.e. the assumption that she could no longer carry out her role [271]: “I am therefore struggling on what basis MSI now considers that I am unable to satisfactorily carry out my role because of my diagnosis of long-term covid. I would appreciate if you could provide me with the supporting evidence or reasons why you believe this to be the case”. The claimant requested “the supporting evidence or reasons why you believe that to be the case”.

[126]We do not find that this was a protected act nor that Ms Moore believed this was a protected act or that because of this letter, the claimant might do a protected act. This is because the claimant was not complaining that the EqA had been contravened, she was requesting or rather challenging Ms Moore to provide an explanation for what she understood to be her assumption (which is relied on as being something arising in consequence of her disability as opposed to an allegation of unfavourable treatment). As will be seen, in her WP letter written in response to this letter, Ms Moore emphasised that it had been the claimant who had raised concerns about her capability on health grounds. 33 of 60 Ms Moore’s WP letter dated 28 March 2022 (issue 1.1 (d))

[127]Ms Moore responded on 28 March 2022 with a WP letter [273-275] to provide “clarity on your current options at work”. She set out the background to their protected conversion, which included the meetings on 28 January and 3 February 2022. Noting that the deadline for accepting the offer had lapsed, she agreed to extend it to 1 April 2022 and explained that if the claimant failed to respond by that deadline (our emphasis added) “I will assume that you do not want to accept the offer and I will be in touch to discuss our next steps in line with the Absence Policy. This offer was made in recognition of your long and valued service and in response to the concerns you raised about your own capability to fulfil the role currently, however, there is no obligation on you to accept such an offer and we are very happy to explore ways we can work with you to provide the support needed. The offer of an Occupational Therapy referral still stands, and it would enable us to look more closely at your current condition, what you can do and cannot do and any reasonable adjustments we can make to your role and/or workplace to assist you in performing your duties. The purpose of an Occupational Health report is primarily to look at ways we can provide you with additional support and assistance to enable you to fulfil your duties without affecting and damaging your health and what reasonable adjustments may assist in doing so. You are a valued member of staff, and we have a duty and desire to protect your wellbeing, especially in light of some of your comments around your current capabilities…I would strongly encourage you to accept the occupational health referral so that I can consider any reasonable adjustments that may be required to your role. Upon your return to work, we will agree on an action plan and continue with an informal performance plan regarding the training percentage and other compliance audit concerns, presented to me since your absence. We will look at ways we can assist you in improving these training percentages and we can also look to implement any reasonable adjustments as may be suggested in an Occupational Health report should you consent to this.” As her letter made clear, and as Ms Moore agreed when giving evidence, the claimant was being told that if this offer was not accepted the first respondent would follow its internal procedures in line with the Absence Policy or the Performance and Capability Policy with a PIP. In oral evidence, the claimant agreed that this letter threatened neither. For completeness, we do not find that the claimant was threatened with the imposition of a PIP or management under the Absence Policy if the termination payment was not accepted. Ms Moore was confirming the consequences to the claimant if she remained employed. Either the claimant would remain on sickness absence which would at some stage trigger management intervention under the Absence Policy or, if she returned to work, there would be an action plan and an informal PIP to address training and audit concerns. We do not find that either amounted to a threat or an attempt to coerce the claimant into accepting a negotiated exit.

[128]Although we have not found it amounted to a threat, Ms Moore referred to the continuation of an informal PIP when one was not already in place, as Ms Moore agreed when giving evidence. The first respondent’s Performance and 34 of 60 Capability Policy provided materially that: any concerns regarding performance or capability must be discussed with the employee at the earliest possible stage (paragraph 7.2); and where there are any concerns that a performance issue may be related to an underlying health issue or disability OH advice should be obtained before any action taken (paragraph 7.3). The policy also provides for informal performance management which involves an informal performance review meeting at which the performance concerns are discussed, objectives set, support and timescales for review agreed, and for such a discussion to be recorded in a PIP document (section 8); and underlines that such a step should take place only where “necessary improvement has not been achieved via routine support or the nature of the issues is sufficiently serious to warrant immediate action” (paragraph 8.1). None of these steps had taken place. In the context of this WP letter, we therefore understand why the claimant viewed the reference to a continued PIP as a veiled threat. Indeed, in her oral evidence, Ms Moore appeared to concede the point. However, we find that Ms Moore was expressing her genuinely held view that informal performance management was warranted and would be necessary if the claimant returned to work.

[129]The performance issue related to the following training percentages to which Ms Moore referred in her letter: “…the first trimester ultrasound training compliance is currently at 38% versus the target which is 80%, second trimester is at 30% currently (9/30 colleagues trained) and post treatment is currently at 28% (12 colleagues trained against a 43 target…” When giving evidence in relation to her reference to a PIP in this letter, Ms Moore referred to the meeting on 28 January 2022 when she said that performance issues had been identified which she had followed up at the review meeting in early February 2022. We have found that these concerns about the claimant’s performance and capability, which preceded her knowledge of disability, and it is likely that they had led her to contemplate the cost of a negotiated exit by 15 March 2022. The latest statistics had reinforced these concerns.

[130]The claimant remained on sick leave until her return to work on 4 July 2022. As a goodwill gesture, Ms Moore agreed to extend the claimant’s sick pay which would otherwise have ceased on 25 May 2022. The redistribution of the claimant’s duties (issue 1.1 (f))

[131]The claimant claims that from 16 March 2022 Ms Moore decided to permanently redistribute her duties, in essence, she alleges that Ms Moore decided on this date that the claimant was unfit to undertake her substantive role, that it would be necessary to redistribute her duties permanently and that this culminated in the decision to orchestrate her removal from the organisation by means of a sham redundancy.

[132]We agree with Mr Keen’s submission that this requires a finding that Ms Moore decided on or before this date to remove the claimant from her role. We do not find that Ms Moore had made such a decision by that date for several reasons: 35 of 60 firstly, the negotiations remained ongoing and their outcome was uncertain; secondly, and relatedly, although the claimant had opted to take sick leave, there remained some uncertainty about whether and if so, when, the claimant would return to work; thirdly, one of the options on the table was to obtain OH advice to facilitate any additional support the claimant needed, which Ms Moore continued to offer the claimant after the negotiations had ended; and fourthly, for the reasons set out below, we find that this decision was made by Ms Moore several months later.

[133]The claimant agrees that it was necessary for her duties to be redistributed whilst she remained absent from work. It is agreed that these duties were reallocated to Ms Clayton-Smith, whom the claimant line-managed, and admin staff to cover the claimant’s extended sickness absence; the latter including monitoring training performance, training coordination tasks and ultrasound audits.

[134]Notably, on the same date as the WP letter, in a WhatsApp exchange with the claimant [277-280], Ms Clayton-Smith complained that Ms Moore was “expecting me to do 2 peoples jobs” and was “talking about you like you aren’t in the company any more” and was “saying you’re on long term sick” and she was being required to “delegate to the mentors and change the amount of responsibility they have” and understanding that the claimant would be absent for only two weeks explained “I’m not going to restructure the ultrasound department for the sake of 2 weeks”. Ms Moore’s oral evidence was that she needed to delegate audits to mentors, which would ordinarily be completed by the claimant and Ms Clayton-Smith’s, to free up capacity for Ms Clayton-Smith. Her evidence was also that she could not recall whether she told Ms ClaytonSmith that the claimant was on long-term sick leave and that she probably told the specialist nurses that the claimant was not in the business and would not have said anything more because of the need to maintain confidentiality. As Ms Moore did not deny this, we find that she told Ms Clayton-Smith that the claimant was on long-term sick leave. Although we find that this was envisaged as a temporary reallocation of the claimant’s duties not least because Ms Moore did not know whether the claimant would be returning to work, it is evident that by taking action to make these changes Ms Moore understood that the claimant would be taking an extended period of sickness absence (owing to stress and not the claimant’s disability, nor, as we have found, arising in consequence of it).

[135]When she did not respond to the WP letter by the extended deadline of 1 April 2022, Ms Moore emailed the claimant the next working day, on 4 April 2022 [369-370], to reassure her “Please know that by not accepting the offer, this will not have a detrimental impact on the support I have and will continue to give you”. Noting that the claimant’s latest fit note expired on that date, Ms Moore queried whether the claimant intended to return to work the following day or to remain on sick leave. She explained that this would enable her to “plan for your return and follow up performance improvement plan or arrange cover…” Ms Moore 36 of 60 also underlined the importance of making an OH referral which required the claimant’s consent. The claimant replied on the same date [369] to confirm that she had obtained a further fit note and that she agreed to have an OH review. The ensuing fit note, dated 4 April 2022 [803], confirmed that the claimant remained unfit for work for a further four weeks by reason that she was “[f]eeling stressed”. The claimant’s alleged protected disclosure on 1, 8 and 19 April 2022 (issue 8)

[136]The claimant had in fact written to the first respondent’s CEO, Simon Cooke, on 1 April 2022 [284-287]. She relies on this letter and her letters dated 8 and 19 April 2022 as a composite protected disclosure which crystallised on 19 April

[137]In the first of these letters, the claimant complained that she had been required to continue visiting clinics from late October 2020 which had resulted in her contracting Covid, and she complained about the failure to conduct a risk assessment, for the first time. The claimant also complained that Ms Moore, with Mr Bentley’s approval, had decided to force her out of the organisation because of her diagnosis of Long Covid and / or because she was suffering with symptoms of Long Covid as a result of which she had been signed off work with stress. The claimant asserted her belief that directors, managers and staff had committed or were likely to commit criminal offences under health and safety legislation and were in breach of their obligations under their health and safety, and sickness policies and that the health and safety of an individual, presumably the claimant herself, was being, and was likely to be, endangered.

[138]The claimant wrote to Ms Cooke again on 8 April 2022 [288-289] when she complained about his failure to acknowledge and record her protected disclosure of 1 April 2022, and she threatened to raise her disclosure to one of the external organisations listed in first respondent’s Speaking Up Policy unless Mr Cooked replied by return. She added “Now suddenly I find that without warning I am being threatened with being performance managed by my line manager Nicola Moore”. The claimant forwarded this letter by email sent at 5.10 pm. Mr Cook replied 21 minutes later [290] to confirm that he had instructed Amanda Couper, Global Director of Legal, Safeguarding and Donor Compliance, to investigate the matters she had raised. Ms Couper then emailed the claimant a further 32 minutes later [292] to confirm that the claimant’s complaints – which she summarised as being her concerns about whether there was an adequate risk assessment in place before she contracted Covid and the recent discussions regarding her medical condition and being offered settlement – would be dealt with under the Grievance Policy because they appeared to be personal complaints relating to her employment rather than protected disclosures.

[139]The claimant then wrote to Ms Couper on 19 April 2022 [294-298]. The focus of this letter concerned the requirement to visit centres and the failure to conduct a risk assessment in October / November 2020. 37 of 60

[140]The claimant’s evidence was that the composite protected disclosure was that the organisation had failed to carry out a risk assessment (referred in her letters of 1 and 19 April 2022) and that Ms Moore, with Mr Bentley’s approval, had tried to force her out of the organisation in March 2022 when they engaged in WP discussions (referred to in her letter dated 1 April 2022).

[141]Notably, the claimant’s counsel, Mr Philpott, also wrote to Mr Cooke on 1 April 2022 [869-872], on her behalf, to complain about the decision to visit clinics daily (this was incorrect), the failure to conduct a risk assessment, contrary to regulation 3(1) of the Health and Safety at Work Regulations 1999, and the claimant’s resulting exposure to Covid. Additionally, Mr Philpott complained about the protected conversation and related discussions, and correspondence between the claimant and Ms Moore, and the alleged threat of being performance managed if she did not agree to a termination payment, which he asserted had resulted in the claimant being signed off with stress. He also referred to the fact that the deadline for this offer expired that day. Mr Philpott warned Mr Cooke that the claimant reserved the right to bring Tribunal claims against the organisation and named individuals “that are too numerous to specify” and that she also intended to bring a claim for damages for personal injury against the organisation. He also asserted that Ms Moore had “expressly made reference to the real reason why she is being forced out…namely her age” (which is not a claim the claimant has brought in these proceedings nor consistent with the claimant’s claim or the evidence she has adduced in these proceedings). In conclusion, Mr Philpott invited Mr Cooke to take the following action “In the first instance and before taking this matter any further, I await to hear from you with your admissions of the wrongdoing and malpractices of MSI in connection with this matter and an admission by MSI of liability for my client’s claim for damages arising from the negligence of your director(s), manager(s) and staff, for which MSI is vicariously liable.” Based on the timing and content of this letter, which is not relied on as a protected disclosure, we find that it was part of a two-pronged approach by the claimant and Mr Philpott, and guided by the latter, to threaten legal action to prompt the first respondent to increase its offer of a termination payment.

[142]In respect of the failure to carry out a risk assessment, we do not find that this amounted to a protected disclosure. We find that this was a disclosure of information which the claimant believed tended to show that her health had been put at risk and / harmed by the first respondent and although we have found that the claimant bore some responsibility for the absence of a risk assessment, on balance, we have found that the claimant’s subjective belief was reasonably held. However, we do not find that the claimant had a genuine and / or reasonable belief that she was making this disclosure in the public interest in the circumstances in which she had failed to complain about this issue in the intervening 17 months, including when she returned to work in January 2021 and at her review meeting in February 2022; and she had complained about this for the first time only after the protected conversation with Ms Moore following which had resulted in an offer of a termination payment she felt was derisory, and on the date on which the extended deadline for 38 of 60 accepting the offer expired. We have found that this letter in concert with Mr Philpott’s letter of the same was designed to elicit a more favourable offer. It is also relevant that the claimant subsequently admitted that she had been advised to “go down the whistleblowing route” by Mr Philpott (see paragraph 153); as is our finding below that the claimant subsequently threatened to escalate her disclosure to the CQC in a further attempt to leverage a more favourable offer (see paragraph 151), which we find to be inimical to the holding of a belief that the disclosure was being made in the public interest.

[143]Nor do we find the claimant’s allegation that the respondents had attempted to force her out of the organisation amounted to a protected disclosure. Although we are satisfied that it was a disclosure of information which the claimant believed tended to show her health had been harmed, we do not find that such a belief was reasonably held in the circumstances in which we have found that it was the claimant who initiated a discussion about a termination payment (notwithstanding our finding that Ms Moore had already considered the cost of a negotiated exit). For the same reasons set out in the preceding paragraph, we do not find that the claimant had a genuine and / or reasonable belief that she was making this disclosure in the public interest.

[144]We accept Ms Moore’s evidence [NM/32] that she did not see the claimant’s letters dated 1, 8 and 19 April 2022 and that her only direct involvement in relation to them was when she was interviewed by Ms Couper during the grievance investigation. The grievance investigation and outcome

[145]Ms Couper investigated the following four complaints under the Grievance Policy: 1. That the first respondent had failed in its duty of care to conduct risk assessments in relation to Covid. 2. That the first respondent had put the claimant at unnecessary risk of harm by asking her to return to visit clinics in October 2020. 3. That the first respondent had failed to organise a return to work interview and OH assessment in January 2021. 4. That Ms Moore had attempted to force the claimant to exit the organisation with a payment and her actions had caused her to be signed off work with workplace stress.

[146]In the meantime, an OH review had been scheduled on 17 May 2022. The claimant emailed Ms Kingswood on 13 May 2022 [386] to confirm that whilst she was not withdrawing her consent, the forthcoming appointment “must be postponed” until after she had received the investigation outcome. This was agreed and the OH review was subsequently rearranged to take place on 6 June 2022.

[147]Ms Couper wrote to the claimant on 19 May 2022 [299-300] to confirm the outcome of her grievance investigation. Save for the third complaint which she upheld, Ms Couper concluded that the other complaints were not substantiated, 39 of 60 although she raised some concerns regarding the second complaint. In relation to the second complaint, Ms Couper found: “There appears to have been a legitimate business need for you to go into clinics due to concerns on the numbers of ultrasound competency assessed staff causing a risk to the provision of services. In addition your role does require you to visit clinics on a regular basis. However, I do not believe that it was made clear to you why October 2020 was determined to be the right time to return to regular visits, and also what consideration had been given to whether you were at greater risk (and also a greater risk to others) because of your role travelling between centres…” Notably, in her investigation report [640-652], which was not shared with the claimant at the time, Ms Couper found “this allegation unsubstantiated however on a 60/40 basis” which reflected the concerns she highlighted about the lack of an explanation about the timing of this instruction and assessment of risk because of the requirement to travel. However, she also found that there was an urgent need for these clinical services and the organisation “had to operate as normally as possible which involved staff having to interact with the public”; that Mr Bentley had stated that “there were concerns over the level of ultrasound trained and competency [assessed] staff and whether this was preventing the organisation from meeting demand”; and that the claimant’s role, which involved overseeing the training, auditing and compliance of all staff performing ultrasound and ensuring that there were sufficient numbers of trained and competency assessed staff, meant that it “can only be done with a significant time spent in clinics”.

[148]In relation to the fourth complaint, Ms Couper found that the claimant initiated a discussion about a termination payment not Ms Moore and the claimant had not challenged the veracity of the WP letter in which Ms Moore had summarised the protected conversation.

[149]It is agreed that before the claimant received the grievance outcome letter, a second protected conversation took place between the claimant, Stephanie Canavan, Director of IT, and Sue Lacey, Employee Relations Partner, on 17 May 2022, when the claimant was offered a termination payment of a year’s salary in addition to her accrued holiday pay. The claimant was given 10 days to consider this offer.

[150]The claimant submitted an appeal against the grievance outcome on 26 May 2022 [303-305] in which she took issue with several of Ms Couper’s findings (although she did not challenge the finding that her role required her to visit clinics regularly), when she also complained about the failure to treat her complaints as whistleblowing disclosures under the Speaking Up Policy and confirmed that she would be escalating these disclosures by referring them to the CQC.

[151]She then wrote to Mr Cooke on 30 May 2022 [1284-1285] on a WP basis, in which she complained about the “derisory offer” which had been made at the recent protected conversation, she referred to having “many potential Employment Tribunal claims that I intend to commence”, she confirmed that she 40 of 60 was seeking a payment of career loss and proposed formal mediation on a WP basis to facilitate a further negotiation at which both sides would be legally represented. The claimant also complained that her protected disclosure had been treated as a grievance and she reiterated her intention to escalate her disclosure to the CQC. The claimant concluded “I will await to hear from you in reply to my suggestion of Mediation and, in the meantime, for now I will hold off from notifying CQC of my whistleblowing complaints before hearing from you…” This was plainly a threat to contact the CQC which the claimant was using as leverage to achieve a significantly increased termination payment figure. Mr Cooke’s email dated 30 May 2022 (issue 9.1 (a))

[152]Mr Cooke replied on the same date [308-309] when he acknowledged the claimant’s appeal. He confirmed it would be conducted by Annette Laban, an NHS non-executive director and independent advisor to the MS UK Board, subject to Ms Laban’s agreement. Mr Cooke sought to reassure the claimant that whilst the first respondent did not agree that the claimant’s complaints amounted to a protected disclosure, they had been investigated under the Grievance Policy in the same manner as if they had been. Under a separate WP heading, Mr Cooke noted the claimant’s WP letter in which she had rejected the offer made on 17 May 2022 and explained that her proposal of mediation had been rejected as it appeared that its purpose was to obtain a financial settlement rather than to facilitate her return to work. He concluded “Given that you have rejected our offer, we shall consider the matter closed pending the outcome of the appeal, and we will continue management of your employment in the usual way, with a view to facilitating your return to work once you are fit to do so.” In oral evidence, the claimant confirmed that this email was the basis of her allegation that Mr Cooke had treated her detrimentally by informing her that her complaints were closed and had been investigated prior to the outcome of the grievance appeal. This allegation is misconceived. The claimant’s complaints had evidently not been concluded. Mr Cooke had confirmed that steps would now be taken to hear the appeal. This stemmed from the fact that the grievance investigation had been completed, which had already been confirmed to the claimant on 19 May 2022. The only matter that had been closed was the WP offer, for the reasons set out in this email. The appeal hearing and outcome

[153]The claimant’s appeal was heard by Ms Laban on 8 June 2022 (the record of which is at pages 1315-1322 of the bundle). During this hearing, the claimant noted that “We don’t agree with the outcome of the grievance” [1317] by which she confirmed that she was referring to herself and Mr Philpott. She also explained [1318]: 41 of 60 “So my barrister felt that I should go down the whistleblowing route as we felt there have been breaches to the health and safety act…I do believe it is in the public’s interest to make this known. However, I haven’t initiated that yet as I’d like to come to a satisfactory conclusion.” We observe that the claimant not only confirmed that she had been advised by Mr Philpott to “go down the whistleblowing route” but reinforced her threat to escalate her disclosure which she had already made to Mr Cooke on 30 May

[154]The claimant also referred to her recent OH review and noted [1320] “the report will come through that there is no reason why the long covid should affect my work. At the moment because of the stress I am under there is no way I can work effectively now…I think it would be untenable for me to return to MSI UK with everything that’s gone on. I feel I would be targeted one way or another, I personally don’t think I could return now…” When Ms Laban queried what sum the claimant would settle for, the claimant suggested a figure nearer to £100,000 which Ms Laban explained was “an impossibility” [1321]. Clarifying that she did not have authority to agree on a figure with the claimant, Ms Laban suggested that the claimant reflected and reverted with a proposed figure.

[155]Ms Laban wrote to the claimant on 15 June 2022 to confirm that she had not upheld her appeal [319-321]. Ms Laban emphasised that the organisation did not agree that the claimant’s role was untenable, she was able to return to work “in line with medical advice and any reasonable adjustments”, and the claimant was offered mediation to facilitate her return. The claimant’s return to work

[156]The claimant was assessed by Dr Batool, an OH Physician, on 6 June 2022 whose report [805-806] confirmed that the EqA was likely to apply to the claimant and advised that the claimant did not require any reasonable adjustments. Dr Batool also advised, under the heading ‘Opinion and Outcome’, that “the barrier to a return to work in her case seems to be more related to perceived workplace concerns rather than a primary medical problem. She has stated a number of workplace issues that she feels have contributed to the development of stress…” Notably, one of the questions which Dr Batool had been asked by Ms Moore to address was “how long is it likely to be until Julie is able to go out in the centres four days a week?” to which Dr Batool referred back to the ‘Opinion and Outcome’ section of the report.

[157]The claimant’s return to work was discussed at a facilitated conversation between the claimant, Ms Moore, Ms Kingswood and an external facilitator, 42 of 60 Clare Mellor, on 23 June 2022. According to the short record of this meeting, which was in the form of an action plan [403], its objective was “To explain organisational performance changes and establish a positive way of working going forward that will meet the strategic needs of the organisation. To ensure any misunderstandings have been resolved and clear communication established.” At this meeting, it was agreed that the claimant would return to work on 4 July 2022, starting with 2 days that week and increasing her working hours by one day in each successive week until she had resumed her full-time hours at the end of her fourth week; she would have weekly / fortnightly review meetings with Ms Moore during this four-week period culminating in a final review meeting on 26 July 2022. The action plan also referred to the aim that the claimant would “be out in the centres 4 days per week with the 5th day being utilised to complete admin tasks” which was consistent with the OH referral and underlined Ms Moore’s view that this was required. There was no provision in this action plan for the gradual reintroduction of the duties which had been transferred to Ms Clayton-Smith. The requirement to attend in person clinics from 4 July 2022 (issue 6)

[158]Upon the claimant's return to work the claimant was required to visit clinics in person. The claimant agreed that this requirement (or PCP) did not put her at the substantial disadvantage contended for i.e. it did not exacerbate her health. Nor did the claimant say that her health was affected adversely when she was required to attend clinics in person for four days a week from mid-September 2022. As such, the statutory duty to make adjustments to this PCP was not engaged. This was consistent with Dr Bartool’s recent OH advice that the claimant did not require any reasonable adjustments to her role. Demotion, ostracisation and surveillance (issues 1.1 (g) and (h), and 9.1 (c))

[159]The claimant agreed [C/78] that the respondents’ description of her role in its first grounds of resistance (paragraph 7 [38]), which was based on her job framework, was correct: “…to complete all ultrasound assessments on all the First Respondent’s team members in the UK and to be responsible for supporting all biannual ultrasound assessments, biannual practitioner audits, scan reviews for incidents/complaints and coordinating with the First Respondent’s Learning and Development team on central training matrix issues.” As we have already noted, the claimant also agreed that she was required to train mentors and monitor, assess and audit trainees. Her evidence was that she did not return to work in the same role but had been, in effect, demoted to the training role of ultrasound scanning mentor, and had been replaced by Ms Clayton-Smith to whom she was now in a subordinate position. We do not agree with Mr Keen’s submission that this requires the claimant to establish that she was formally demoted. 43 of 60

[160]It is accepted that in the claimant’s absence, Ms Clayton-Smith assumed operational responsibility for the ultrasound service. Separate to that, some of the claimant’s administrative duties had been reallocated permanently to other colleagues. As we have noted, the action plan was silent on the timescale for the reversion of the duties which had transferred to Ms Clayton-Smith. We find that in the interim, as is consistent with the claimant's contemporaneous diary entries, Ms Clayton-Smith continued to be responsible for overseeing the service with the claimant being placed in a subordinate role being deployed to the clinics initially to shadow colleagues and refamiliarise herself with the work being carried out at the centres, and once she had been audited to conduct training. Ms Moore’s evidence [NM/38] was that she wanted to support the claimant’s reintegration whilst remaining focused on increasing training compliance in accordance with the requirements of the Nursing and Midwifery Strategy. The contemporaneous evidence, both the correspondence between the claimant and Ms Moore, and the claimant’s diary entries, shows that the claimant was now expected to visit the clinics to train trainees.

[161]The claimant’s first week back at work began with a meeting with Ms Moore, following which Ms Moore emailed the claimant [405] to confirm her work priorities. These included contacting CSMs in London and Bristol “to offer your support in training their relevant team members in First and Second Trimester ultrasound” and contacting the West London centre, which the claimant was due to visit that week “to identify relevant team members to support with training”. Ms Moore suggested that the claimant also reviewed her training compliance. On the face of it, Ms Moore was directing the claimant to undertake this training of trainees herself whereas the claimant’s substantive role required her to train the training mentors who would then train the trainees.

[162]Ms Moore emailed the claimant and Ms Clayton-Smith two days later [338-339] to clarify that they had had their ultrasound practice audited. As she explained, this was “fundamental to providing assurance of continued competency…particularly as you are leading and training”. Ms Clayton-Smith replied to provide this assurance explaining that this had been done externally because there was no other sonographer at her level within the organisation. The claimant replied on 11 July 2022 [335-336] to explain that since taking on her HUSA role she had been “operational” and had not completed any “direct one-to-one training” since 2016 and had not therefore been audited. She referred to their meeting on 4 July 2022 when “you suggested that I become more strategic than operational going forward” and concluded "my role within the organisation has changed – as I’m now going to be attending clinics 4 times per week to complete training”. She confirmed that she had arranged for Ms Clayton-Smith to audit her. We find it surprising that the claimant had not been audited since 2016 as her duties involved, on her own account auditing competencies; and she also agreed that her role required her to train mentors. The audit of the claimant was long overdue and Ms Clayton-Smith was wellplaced to conduct one. We do not find that this signified a reversal in their relative seniority.

[163]However, we find that such a reversal was signalled by the claimant in an email she sent to Ms Moore at the start of her second week, on 11 July 2022, which 44 of 60 the claimant recited in her diary [325], when she confirmed her movements that week. This began “I can confirm that Pippa has outlined where she wants me to prioritise – Bristol being one of those centres”. This underlined that Ms ClaytonSmith continued to coordinate the training provision and was directing the claimant’s movements.

[164]Two days later, the claimant visited the Bristol clinic but was informed that she was unable to review another colleague scanning because she had not completed her own audit. The claimant emailed Ms Moore on the same date [341] to update her when she wrote: “As you now require me to complete training on a daily basis (4 days per week) I would suggest that we review my JD to accommodate my new role which is more in keeping with a regional mentor and put a training plan in place.”

[165]According to the claimant’s diary [326] she and Ms Moore had a telephone discussion on the same date, 13 July 2022, which she also referred to in an email sent the next day (when she attached her job description) [1323] “we spoke about the interpretation of the job description & how we are potentially not aligned with our thinking…I agree next week we should have a meeting whereupon we can dissect the JD and agree what is expected of me moving forward…” It is agreed that this follow-up meeting did not take place.

[166]Ms Moore’s evidence [NM/41-42] was that the claimant remained in the same HUSA role but “her role had moved away from her job description, and it was clear to me that this needed to be addressed” and this was something she would have addressed, by reviewing the claimant’s job framework, if the claimant’s role had not been made redundant. Her evidence that she “was completely unaware” that the claimant “considered her role different to that of her job framework” is difficult to reconcile with the content of the claimant’s emails on 11 and 13 July 2022 and lacks credibility. Although there was a disjunction between what the claimant believed she was required to do in the HUSA role and what Ms Moore needed the claimant to do in that role, we find that the changes which had been made to the claimant’s role went beyond that.

[167]The claimant submitted her first Tribunal claim on 14 July 2022. It is agreed that this is a protected act. As one of the named respondents, Ms Moore was made aware of this claim once it had been served on the first respondent.

[168]The claimant claims that on / around 8 July 2022, Ms Moore instructed colleagues to closely watch her. The claimant relies on her diary entries on 22 and 25 July 2022 [327]. The claimant had emailed Ms Moore on the first of those two dates to explain that she had been unwell that week and had left work early on the Monday and worked from home on the Wednesday. That email appeared to have been sent after the claimant received a text from Ms Clayton-Smith informing her that Ms Moore had asked about the claimant’s “whereabouts” that week. The claimant’s diary entry for 25 July 2022 recites an email from Ms Moore, written apparently in response to the claimant’s email, 45 of 60 directing her to discuss any requests for working from home with Ms Moore and to report any sickness absences to her secretary, if Ms Moore was unavailable. Neither Ms Clayton-Smith’s text nor Ms Moore’s email substantiate the claimant’s allegation.

[169]At the claimant's 1:1 with Ms Moore on 26 July 2022 it was agreed that now that the claimant had returned to full-time hours they would revert to monthly meetings. Ms Moore’s evidence is that she understood from this date that the claimant would resume her HUSA role in full and operational control of the ultrasound team. However, she did not discuss this with the claimant, nor was it recorded in Ms Moore’s summary of their 1:1 meeting [887] nor did the respondents adduce any evidence that this was discussed with Ms ClaytonSmith. We find that Ms Clayton-Smith retained operational oversight for the department and reject Ms Moore’s evidence to the contrary. Conversely, Ms Moore agreed, when giving evidence, that she had redirected staff from the claimant to Ms Clayton-Smith following the claimant’s sickness absence but she did not direct staff to revert to the claimant when she returned to work nor is there any evidence that she instructed Ms Clayton-Smith to do this.

[170]We accept the claimant's evidence, which is consistent with her diary entry of 26 July 2022 [328], that Ms Clayton-Smith told her that during her mid-year review meeting on the same date, Ms Moore had discussed the need to review both of their job descriptions. We find Ms Moore’s decision to discuss this with Ms Clayton-Smith before the claimant, particularly in the circumstances in which the claimant had been pressing Ms Moore about this issue, underlined the reduction in the claimant’s status relative to Ms Clayton-Smith. Furthermore, the claimant had conducted Ms Clayton-Smith’s mid-year review in each of the last three years. Whilst Ms Moore remained best-placed to conduct this review, because of the claimant’s recent and long-term sickness absence, the fact that the claimant was not invited to this meeting, which we find presented an ideal opportunity to handover line management of Ms Clayton-Smith back to the claimant, underlines that the claimant had not resumed operational control of the team or was managing Ms Clayton-Smith de facto.

[171]In her diary overview of July 2022 [328], the claimant wrote, with some justification: “…having been totally stripped of my duties, then being told I am going back to be a mentor training 4 times a week and one day admin. My colleague [Ms Clayton-Smith] will give me direction now – she will complete 3 days training and have 2 days admin working from home…” The claimant concluded: “NM nursing strategy does not include anyone that is not an RN/RM and that is why I am being stripped of my duties and side-lined.” When giving evidence, the claimant was unable to explain why she now resiled from her contemporaneous assessment of the reason she was being sidelined. 46 of 60

[172]At the claimant’s mid-year review with Ms Moore on 5 August 2022 [372-376], it was agreed that the claimant would visit the Central London clinic three days a week and “For the fourth day Julie will be flexible to go to another centre where needed”. In oral evidence, Ms Moore agreed that she instructed the claimant to go out for 4 days a week with the fifth day set aside for admin. Ms Moore explained that this was because there was a requirement to get out to the centres to get the training done. As Ms Moore agreed when giving evidence, there was a requirement to increase the numbers of nurses and midwives who could scan and a corresponding requirement to increase the number of mentors. Although she did not agree that this meant that the claimant was being required to do the training herself, she did not rule this out and her evidence was that if the claimant was training nurses and midwives then that was because she had agreed to do this with Ms Clayton-Smith.

[173]Ms Clayton-Smith was only being required to go out three days a week. We reject Ms Moore’s evidence that she was not cognisant of this disparity because it was her decision to instruct the claimant to go out for four days a week and she had been line-managing Ms Clayton-Smith and had conducted her halfyear review on that date, and it is very unlikely that she would not have been aware of Ms Clayton-Smith’s weekly activities.

[174]We were also taken to a screenshot of an email sent by Ms Clayton-Smith to the claimant on 2 September 2022 [346], copied to Ms Moore, in which Ms Clayton-Smith was self-evidently directing the claimant’s visits for September 2022 which is consistent with Ms Clayton-Smith’s ongoing operational responsibility and to Ms Moore having knowledge of the same. From the week commencing 12 September 2022, the claimant was required to go out four times a week, although owing to annual leave, this happened in the last two weeks of that month only.

[175]We also find that the claimant was excluded or not invited to attend meetings which she would have routinely attended prior to her sickness absence. In her diary, the claimant listed 14 meetings said to be taken from Ms Clayton-Smith’s work diary, which her colleague attended and which she was not invited to [331- 332]. Ms Moore was unable to say either way whether the claimant would have been expected to have attended these meetings in her HUSA role, as it was not something she needed to have oversight of. She posited that if the purpose of any of these meetings was to conclude something which Ms Clayton-Smith had been managing autonomously in her remit as clinical lead, she would not have expected the claimant to have attended them as well. Her evidence was also that if the claimant had felt that she needed to attend any of these meetings, she had access to Ms Clayton-Smith’s diary and could have insisted on joining them. We find that it is likely that the claimant was not invited to these meetings, that the claimant would have been invited to attend some of these meetings prior to her sickness absence, including: the call on 8 July 2022 to discuss a root cause analysis; a meeting on 26 July 2022 to discuss a SharePoint of ultrasound scanning; a complaint review on 3 August 2022; a scrutiny panel review on 11 August 2022; a panel review on 18 August 2022; a panel call on 5 September 2022; and a call on 12 September 2022 to discuss learning agreements. We also find that in the circumstances in which the claimant 47 of 60 understood that her role and position of seniority had changed, she had requested clarity of the same with Ms Moore, she viewed this as further proof of her reduction in status and role.

[176]We therefore find that the claimant did not return to the same role on or after 4 July 2022 because Ms Clayton-Smith retained operational responsibility for the ultrasound department, Ms Clayton-Smith was directing the claimant where she would be required to work each week, the claimant was being required to go out four days a week, whereas Ms Clayton-Smith went out three days a week, the claimant was being required to train trainees and not just mentors, she was excluded from meetings which were now being attended by Ms Clayton-Smith, and the claimant no longer line-managed Ms Clayton-Smith but was subordinate to her, all of which is consistent in a reduction in status and a change to her role. We would add that to the extent that the claimant complains that the requirement to attend any clinics in person represented a substantive change to her role, which Mr Philpott appeared to suggest in his submissions, we reject that because it is clear that this was part of the claimant’s role and as we have found, the claimant had been required by Ms Njugana and Ms Moore to increase her visibility by visiting the clinics more often, and the claimant did not challenge Ms Couper’s finding that this was part of her role. Overall, we find that claimant was now the HUSA in name only.

[177]The claimant also claims that from her return on 4 July 2022, she was ostracised from the rest of the workforce and Ms Moore diverted communications to Ms Clayton-Smith, we do not find that the claimant adduced any evidence that Ms Moore diverted communications to Ms Clayton-Smith on or from that date. However, we have found that such communications had been directed to Ms Clayton-Smith when the claimant went on sick leave but there was no further instruction for this to continue when the claimant returned to work but an omission for communications to be re-routed to the claimant, which had the same effect. We find that it was not an oversight or a mistake but was deliberate because of our finding that the claimant had returned to a substantively different role. Although we have found that the claimant was not invited to meetings, there is no evidence to substantiate the claim that she was deliberately ostracised from the rest of the workforce and we observe that this allegation is difficult to reconcile with the fact that the claimant complained, and we have found, that she was being required to go out to visit the clinics with greater frequency so that she would be interacting more directly with more of her colleagues.

[178]On a page in the claimant’s diary which also refers to dates in September 2022 [332], she provided the following summary, which we give weight to because it is a near-contemporaneous account which is consistent with the other findings we have made (underlined for emphasis): “All instructions of where I have to work is given from my colleague PCS, incidentally she still reports into me, but only if she is off sick, all ultrasound operational needs are now managed by Pippa, so effectively she line manages me…PCS has now informed me of my work schedules for the remainder of September, and October…I am now back fulltime training [in] a role I had 6 years ago, prior to my promotion…My JD specifically states what the role is, my 48 of 60 role now is nothing what that JD states, I have not been in any consultation with HR or with NM regarding my job-role or change in my job description – in fact I have heard nothing [from] NM…” These changes to the claimant’s role were not made inadvertently but deliberately. As we find below, they were the corollary of the decision which Ms Moore had already made that the management of the ultrasound activity needed to be overhauled, involving the deletion of the claimant’s role. There was not only a lack of clarity, but frankness, on the part of Ms Moore in failing to acknowledge and discuss these changes with the claimant. We also find that the respondents failed to consult with the claimant about these changes at the earliest opportunity and certainly at a formative stage. However, we do not find that this would have made any difference to the outcome, for the reasons set out below. Redundancy (allegation (i))

[179]Ms Moore’s evidence [NM/46], which we accept, was that during the claimant’s sickness absence, it became evident that there was a significant overlap between the work performed by the claimant and Ms Clayton-Smith; this duplication needed to be reduced and other work needed to be increased, and the ultrasound service required professional clinical leadership. Notably, her evidence was also that [NM/46]: “It was becoming increasingly evident that given the current structure it was not going to be possible to achieve the improvements in training compliance that were so vital to meet the increased demands of the business and the need for the highest level of support and development to all scan trained colleagues…” and that [NM/47]: “The person leading the ultrasound service needed to be able to effect change.” We accept that Ms Moore was alluding principally to qualities which were related to the professional qualifications and expertise which Ms Clayton-Smith had and the claimant did not, although we find that it is likely that she also felt that the claimant lacked the other qualities required to drive these improvements, such as the need to be more strategic, proactive, visible and more engaged with her, as she had highlighted when reviewing the claimant’s performance in February 2022 and her view, as demonstrated in her WP letter written the following month, that informal performance management of the claimant was warranted.

[180]Ms Moore completed a business case for the reorganisation of the ultrasound team which involved removing the claimant’s role and renaming Ms ClaytonSmith’s role to Clinical Excellence Lead – Ultrasound [353-356]. This document was not dated by Ms Moore either on the document itself or in her witness statement. We accept her oral evidence that she completed the first draft of her business case on 21 September and the final draft, which included the September training statistics, between the end of that month and 6 October 2022. However, we reject her evidence that she first considered the need for 49 of 60 this new role at the same time she wrote the first draft of her business case because we find that she had decided it was necessary to delete the claimant’s role several months earlier.

[181]In this business case, Ms Moore set out the rationale for this proposal. The background was the claimant’s unplanned absence and the need to provide cover for her HUSA duties. Several of the key administrative duties had been permanently absorbed within the current headcount. Notably, Ms Moore included a table showing how training compliance had increased in each month between March and September 2022 (save for June 2022 when there was a slight dip) as a result of the redistribution of administrative duties which had enabled the service “to be more hands on and support additional training”. As Ms Moore observed later in this document “As demonstrated during the four-month period of absence, the HUSA workload was absorbed by the LUS [Ms Clayton-Smith] and other teams with no detrimental impact or additional resource needed. Indeed, the more focused and clinically led approach delivered more positive outcomes by increasing the organisation’s level of ultrasound compliance and training through more informed decision making and prioritisation if needed.”

[182]Referring to the Nursing and Midwifery Strategy, Ms Moore concluded that the claimant’s lack of a professional registration / qualifications meant that she could not provide training on post-treatment scanning which created a clinical risk; reference was also made to the increasing digitisation of scans which the claimant would not be able to fully utilise, for the same reason. In terms of role duplication, Ms Moore highlighted that the claimant and Ms Clayton-Smith were both responsible for delivering training and there was an overlap in relation to the management and development of ultrasound policy, for which the claimant was notionally responsible but which Ms Clayton-Smith wrote and presented to the Policy Committee for ratification, and approval. Similarly, Ms Moore noted that whilst Ms Clayton-Smith’s current job description included providing leadership and delivery in relation to client care, including undiagnosed ectopic pregnancies, this highlighted the “inefficiency of the current structure” and the proposed restructure would also enable the new Clinical Excellence Lead to contribute to the organisational strategy. Additionally, the claimant needed to be audited by Ms Clayton-Smith and she did not benefit from clinical supervision as she was not a registered nurse or midwife. Ms Moore concluded (underlined for emphasis): “The proposed removal of the HUSA role, alongside the reasons listed above has ultimately identified, because the progress towards the Nursing and Midwifery Strategy has been challenging and the temporary organisational changes during the HUSA’s period of absence, demonstrated a more effective outcome and highlighted the inefficiencies. The increased demands on the service over the last 18 months mean more qualified nurse/midwife colleagues need to be trained in ultrasound and it is believed the new structure will more effectively deliver that… A review of the management structure has taken place to ensure it aligns with the clinical and professional requirements to lead such a service…to deliver the service’s future needs, it should be clinically led by a fully qualified sonographer 50 of 60 role with a professional qualification and a suggested job title aligning to the Corporate Nurse Team of Clinical Excellence Lead – Ultrasound. This will ensure that the fundamental standards required for the organisation are identified, led and delivered through an accountable clinically qualified manager…[it] will also assume full autonomy in delivery the expectations for ultrasound against the Nursing and Midwifery Strategy ensuring that 80% of nurses and midwives with over six months’ service are trained as competent to perform First and Second Trimester and Post Treatment ultrasound….As a diminishing need for an employee to carry out work of a particular kind has been identified, it is proposed that a reorganisation and removal of the HUSA role is undertaken for efficiency reasons. The duties of the LUS will still be required, and it is proposed that the role will be renamed Clinical Excellence Lead – Ultrasound and report directly to the Director of Nursing, Midwifery and Quality [Ms Moore].” The business case stated that redundancy bumping had been considered and rejected as the claimant could not move into the new Clinical Excellence Lead role (or Midwife or Nurse Ultra-Sonographer) because she did not have the requisite professional qualifications.

[183]At its core, the business case was that the ultrasound service should be led by a qualified sonographer who was a registered nurse or midwife and correspondingly, there was no longer a requirement for someone in that role who was not clinically qualified. The claimant had foreseen this in October 2020, with the implementation of the Nursing and Midwifery Strategy. It was also the reason she understood that she had been sidelined following her return to work in July 2022. The fact that there was an urgent need to improve ultrasound training compliance was not at issue; and, as was clear from the business case, the claimant’s unplanned absence (which was not because of or related or arose from her disability) had highlighted the benefits of deleting her role and augmenting Ms Clayton-Smith’s role. We find that in these circumstances, the fact that the claimant had returned to work to a substantively adjusted role and in a position of subordination to Ms Clayton-Smith was not only a continuation of the initially temporary arrangements implemented by Ms Moore, to the extent that Ms Clayton-Smith continued to operate as de facto head of department, it prefigured the business case now being made by her. Because of this continuum we find that Ms Moore had already decided that it would be necessary to make this restructure before the claimant returned to work in July 2022 and most likely within a few months of her absence, once it became apparent to her that there was a significant overlap between the HUSA and LUS roles, the temporary arrangements implemented from mid-March 2022 were working well and the ultrasound service required clinical professional leadership to optimise the requirements for improved training, assessment and audit compliance.

[184]We do not find that this was a sham. It was not engineered deliberately by Ms Moore to effect the claimant’s exit but was borne out of a genuine requirement to restructure the management of the ultrasound service for the reasons set out in the business case. 51 of 60

[185]The redundancy consultation exercise was conducted by Michele Baxendale Nichols, Head of Nursing and Midwifery. She had recently joined the organisation in August 2022. She reported to Ms Moore.

[186]The claimant met with Ms Baxendale Nichols on 4 October 2022 when she was informed that she was at risk of redundancy. Ms Baxendale Nichols explained that a consultation meeting had been scheduled the following week and the consultation period would end on 28 October 2022.

[187]This was confirmed by a letter from Ms Baxendale Nichols dated 6 October 2022 which also confirmed that no suitable alternative vacancies had been identified (a link to the first respondent’s current list of vacancies was included) and two further consultation meetings were envisaged. Attached with this letter were the notes of their initial meeting and Ms Moore’s business case. As would have been clear to the claimant, she was in a pool of one.

[188]The next consultation meeting took place on 11 October 2022 (the notes of which are at pages 1286-1290 of the bundle), when Ms Baxendale Nicols explained the purpose of this meeting, which included consideration of any proposals the claimant had for avoiding the proposed loss of her post. She also stated that the first respondent would ensure that the consultation would “enable us to provide you with [a]dequate information and detail on the proposed process at this formative stage…” When the claimant was asked about whether she had considered any ways of avoiding the “job losses involved”, she replied: “I’ve thought about things and it is what it is, I don’t really have anything to say, other than I want the process to carry on.” Ms Baxendale Nichols confirmed that if made redundant, the claimant would receive a statutory redundancy payment of £12,847.50, a payment in lieu of notice of £9,843.85 (12 weeks’ pay) and a payment of any accrued but untaken annual leave. The claimant queried whether the consultation process could be accelerated. It was agreed to bring the final consultation meeting forward to the next available date, on 13 October 2022.

[189]At this final consultation meeting, the claimant confirmed that she had had access to the vacancy list and there were no other roles she was interested in applying for. Ms Baxendale Nicols confirmed that the claimant would be dismissed on the ground of redundancy “due to the company’s restructuring” to take effect on 28 October 2022. At the claimant’s request, it was agreed that she would not be required to return to work.

[190]The claimant’s dismissal was confirmed in writing on 14 October 2022 [362- 363], to take effect on 28 October 2022.

[191]The redundancy consultation exercise was rendered moot because, as was all too clear to the claimant, there could be only one outcome i.e. her dismissal. Ms Moore had produced the business case. Ms Baxendale Nicols understood that 52 of 60 she was required to implement it. As she said when giving evidence, the business case made sense to her, she had no reason to question it and she had been asked to action it. The only means of avoiding redundancy was redeployment, however, as the claimant agreed, there were no suitable alternative vacancies into which she could be redeployed and retained by the organisation. We do not find that there was any degree of direct coordination between Ms Moore and Ms Baxendale Nichols, there did not need to be. Ms Baxendale Nichols was executing the decision which had already been made by Ms Moore.

[192]However, we find that had the consultation been conducted at an earlier and formative stage, the outcome would have been the same. This is because we have accepted that there was a genuine redundancy situation for the reasons set out in the business case and the claimant did not have the requisite qualifications / registration to lead the service and there were no suitable alternative roles into which the claimant could have been redeployed. We therefore find that there is a 100% likelihood that the claimant would have been dismissed had there been a fair consultation exercise. Clinical Excellence Lead – Ultrasound role (issue 1.1 (e))

[193]The claimant complains that Ms Moore did not give her an opportunity to apply for the Clinical Excellence Lead – Ultrasound role. As the business case explained, this was in effect a redesignation of Ms Clayton-Smith’s role which now included the managerial aspects of the HUSA role. Ms Clayton-Smith was therefore assimilated into this role without any recruitment process being conducted. We agree that this was not a suitable role for the claimant as there was a genuine requirement for professional qualifications / registration which the claimant did not have and it would not have been reasonable for the first respondent to have held this position open to enable the claimant to gain the requisite qualifications / registration.

[194]Ms Moore’s oral evidence, which we accept, was that Ms Clayton-Smith’s new job title aligned with two other Clinical Excellence Lead roles which she intended would sit within the Corporate Nurse Team and report to Ms Baxendale Nichols as part of a further organisational restructure. Like Ms Clayton-Smith, the other clinical leads were existing post-holders whose job titles were changed. Timing of redundancy payment (allegation (j))

[195]The claimant complains about the delay to the redundancy payment which she received on 30 November 2022. There is no evidence to show that this payment was delayed deliberately and we accept Ms Moore’s evidence that she was not involved in the timing of the payment. 53 of 60 Conclusions Issue 1.1 (c)

Conclusions

[196]We have found that this allegation failed on the facts. Ms Moore did not tell the claimant that she was too ill to work because she had Long Covid on 15 March 2022. In fact, this was what the claimant conveyed to Ms Moore when she disclosed her anxiety that OH would assess that she was not fit to work and, relatedly, her desire to work for three days a week. Nor have we found that Ms Moore offered the claimant a termination payment on this date. We have found that the claimant seized the opportunity to have a protected conversation and asked for a termination payment of a year’s salary. The complaints of direct discrimination, harassment and discrimination arising in consequence of disability are not well-founded. Issue 1.1 (d)

[197]We have found that this allegation failed on the facts. Ms Moore did not threaten the claimant with the implementation of a PIP and / or management intervention under the Absence Policy on 16 or 28 March 2022. The complaints of direct discrimination, harassment, discrimination arising in consequence of disability and victimisation are not well- founded. Issue 1.1 (e)

[198]We have found that the respondents provided a cogent non-discriminatory reason for this conduct. The Clinical Excellence Lead – Ultrasound role was not suitable for the claimant because there was a genuine requirement for the postholder to have professional qualifications / registration which the claimant did not have and keeping this post vacant to enable the claimant to obtain the requisite qualifications / registration was not a viable option. The complaints of direct discrimination, harassment and discrimination arising in consequence of disability are not well-founded. Issue 1.1 (f)

[199]We have found that this allegation failed on the facts. Ms Moore did not permanently redistribute the claimant’s role to other colleagues from 16 March 2022. We agreed with Mr Keen that this required us to find that Ms Moore had the impugned intention on or before that date. It is agreed that the claimant’s duties had to be reallocated when she commenced sick leave on 17 March 2022. It is also agreed that some of the claimant’s administrative duties were permanently reassigned and although that is not what the claimant complains we find, for completeness, that this reassignment on its own would not have constituted a redistribution of the claimant’s role. 54 of 60 The complaints of direct discrimination, harassment and discrimination arising in consequence of disability are not well-founded. Issue 1.1 (g)

[200]We have found that the claimant returned to work on 4 July 2022 in a substantively adjusted role in which she was subordinate to Ms Clayton-Smith who continued to be the de facto head of department. This was not a mistake or accident, or attributable to the claimant’s failure to wrest back control of the department, as Mr Keen submitted. We have found that this was deliberate. It was the corollary of a decision which had already been made by Ms Moore during the claimant’s sickness absence to restructure the management of the department.

[201]Although we find that this was unwanted conduct, we do not find that it was related to the claimant’s disability. There was a genuine need to restructure the management of the ultrasound department, involving the deletion of the claimant’s role and the requirement for the department to be led by a trained sonographer who was also a registered nurse or midwife, as set out in the business case. We would also refer to our reasons set out below at paragraph 208. The complaint of harassment is not well-founded.

[202]We have found that the part of the claimant’s letter dated 23 March 2022 which is relied on (PA1) was not a protected act or resulted in Ms Moore believing that the claimant had done or might do a protected act. For completeness, had we been required to make a finding, we would not have found that PA1 was causative of this treatment for the same reasons set out below at paragraph 208. The complaint of victimisation is not well-founded. Issue 1.1 (h)

[203]We have found that part of this allegation failed on the facts. The claimant was not ostracised from the rest of the workforce but was in fact being required to interact with colleagues more directly and frequently.

[204]In respect of the remaining part of this allegation, we have found that there was a cogent non-discriminatory explanation for the impugned treatment. We have found that, out of necessity, communications were diverted to Ms Clayton-Smith when the claimant went on sick leave. However, these communications were not redirected to the claimant either immediately upon her return to work on 4 July 2022 or following the meeting with Ms Moore on 26 July 2022. Although from that later date, the claimant was notionally restored to her HUSA role, we have found that Ms Clayton-Smith continued to lead the department. In the circumstances in which the claimant understood, correctly, that her role and relative position of seniority within the department had changed and she had written to Ms Moore to discuss an amended job description, it was incumbent 55 of 60 on Ms Moore not the claimant to ensure that this was clarified. It was not. The reason that the communications were not redirected to the claimant was because a decision had been made that Ms Clayton-Smith would retain oversight of the department. We have found that Ms Moore had already decided that the claimant’s role would be amalgamated with the LUS role in a redesignated role for Ms Clayton-Smith and before this restructure. We do not find that this was done because the claimant had Long Covid but because Ms Moore had identified the business need for the department to be led by a qualified sonographer who was also a registered nurse or midwife. The complaint of direct discrimination is not well-founded. Issue 1.1 (i)

[205]We have found that there was a genuine redundancy situation. The allegation of a sham redundancy therefore failed on the facts.

[206]In respect of the claimant’s dismissal, we find that the respondents have established a cogent and non-discriminatory reason for this treatment. The first respondent had a genuine need to restructure the management of the ultrasound department, involving the deletion of the claimant’s role, and the requirement for the department to be led by a trained sonographer who was also a registered nurse or midwife; and there were no suitable alternative roles into which the claimant could be redeployed. The claimant foresaw this outcome some two years earlier in October 2020 and, as is clear from her diary entry in July 2022 [328], she understood that she had been sidelined because she was not a registered nurse or midwife.

[207]For completeness, we deal with each of the complaints the claimant has brought under the EqA in relation to her dismissal.

[208]We do not find that this amounted to less favourable treatment. We have found that the respondent has established a cogent non-discriminatory reason for the claimant’s dismissal in respect of which we do not find that the claimant’s disability was a substantial or effective cause. We considered the following findings: Ms Moore was concerned about the claimant’s performance from late January 2022 (before she was cognisant of the claimant’s disability); she highlighted these concerns at the review meeting on 3 February 2022 (when she had actual or constructive knowledge of the claimant’s disability) as set out in the document dated 6 April 2022; at that review meeting, the claimant acknowledged that she had not visited clinics as often as required because she was anxious about the risk of Covid; the claimant told Ms Moore during their discussion on 15 March 2022 (when she had actual knowledge of the claimant’s disability) that she had avoided an OH referral because she feared that she would be deemed to be unfit for her role and that ideally she wanted to work three days a week; by the date of her WP letter on 28 March 2022 Ms Moore had formed the view that informal performance management of the claimant was warranted; these concerns were essentially about the claimant's ability to drive the required improvements in ultrasound training, assessment and auditing compliance which required her to adopt a more strategic approach, 56 of 60 work more proactively and increase her visibility by getting out more to the clinics; we have also found that Ms Moore had already considered the cost of a negotiated exit for the claimant before the protected conversation on 15 March 2022. To the extent that the decision to delete the HUSA role could have been because of the claimant's reluctance to visit clinics more frequently, or any other perceived performance issues, we find that Ms Moore would have made the same decision in relation to a hypothetical comparator in respect of whom the same issues has arisen but who did not have the disability of Long Covid. In relation to Ms Clayton-Smith, we find that the difference in treatment is explained by the fact that she was a qualified sonographer and registered nurse. We do not find that Ms Clayton-Smith’s qualifications / registration were incidental and used opportunistically by Ms Moore to mask the real reason for her business case, we find that they were genuinely integral to the rationale for her business case. The complaint of direct discrimination is not well-founded.

[209]We find that this was unwanted conduct. We do not find that it was related to the claimant’s disability but to the genuine need to restructure the management of the ultrasound department as set out above. The complaint of harassment is not well-founded.

[210]We find that this amounted to unfavourable treatment. However, we do not find that it arose in consequence of the claimant’s disability. To the extent that this decision was connected with the claimant's sickness absence, we have found that this absence was not related to the claimant's disability as is contended. Nor have we found that Ms Moore held an assumption that the claimant could not do her job because of her disability. The complaint of discrimination arising in consequence of disability is not well-founded.

[211]We have found that PA1 was not a protected act. In respect of PA2, which was a protected act, we find that this was not causative of the decision to go through a redundancy process and to dismiss the claimant by reason of redundancy because Ms Moore had already decided that such a restructure was necessary when the claimant remained on sickness absence, which preceded PA2. The complaint of victimisation is not well-founded. Issue 1.1 (j)

[212]We have found that this allegation failed on the facts. We have not found that this payment was deliberately delayed. Nor have found that Ms Moore had any involvement in the timing of the redundancy payment. The complaint of victimisation is not well-founded. 57 of 60 Issue 6

[213]We have found that this allegation failed on the facts. The claimant conceded that neither the requirement to attend clinics in person from 4 July 2022 nor the requirement to visit four clinics each week, which was applied to her in the second half of September 2022, exacerbated her health. The complaint of a failure to make adjustments is not well-founded. Issue 8

[214]We have found that the claimant did not make any protected disclosures. The complaints of whistleblowing detriment and dismissal are not well- founded.

[215]For completeness, we address each of these complaints below. Issue 9.1 (a)

[216]We have found that this allegation failed on the facts. This allegation is wholly misconceived as it is plainly contradicted by the content of Mr Cooke’s letter dated 30 May 2022. Issue 9.1 (b)

[217]The claimant relies on the alleged conduct enumerated at issue 1.1 (g). The reason for this conduct is set out above at paragraph 201. For completeness, we would add that we do not therefore find that anything the claimant wrote in her letters dated 1, 8 and 19 April 2022 had any material influence on the impugned conduct. Issue 9.1 (c)

[218]We have found that this allegation failed on the facts. We have not found that Ms Moore instructed colleagues to closely watch the claimant. Issue 10

[219]We have found that the reason for the claimant’s dismissal was redundancy. Issue 11

[220]We have found that there was a genuine redundancy situation which stemmed from the need to reorganise the management of the ultrasound department. This need was identified by Ms Moore during the period when the claimant was on sick leave. She completed her business case in late September / early October 2022. Although it is accepted that the decision to dismiss the claimant was made by Ms Baxendale Nichols, we have found that she executed Ms Moore’s business case, the only outcome for which being the claimant’s dismissal. 58 of 60

[221]We have not therefore found that it was a sham. For the reasons set out in her business case, Ms Moore had decided that it was necessary to amalgamate the managerial elements of the HUSA role with Ms Clayton-Smith’s role and there was a genuine need for department to be led by a qualified sonographer and registered nurse or midwife. This meant that there was no longer the needed for the HUSA role which amounted to a reduction in the requirement of the business for work of a particular kind to be performed. The claimant foresaw this outcome. We also find that this was part of a wider organisational restructure in which Ms Moore created two other Clinical Excellence Lead posts.

[222]We therefore find that there was a genuine redundancy situation and that redundancy was the reason for the claimant’s dismissal. The effect of Ms Moore’s business case was that the HUSA role would be deleted and as the claimant agreed there were no suitable alternative vacancies; and, as we have found, the claimant was not eligible to be appointed into the new Clinical Excellence Lead – Ultrasound.

[223]However, we find that the decision to dismiss the claimant was unfair.

[224]The consultation did not take place at a formative stage of the redundancy process. By the time that the business case had been produced, there was only one outcome. The need to consult with the claimant at an earlier stage was more critical in the circumstances in which she was the only person being placed at risk of redundancy. The redundancy consultation process was in effect predetermined and was conducted in bad faith because the decision to delete the claimant’s role had been made by Ms Moore several months earlier, during the period of the claimant’s extended sickness absence.

[225]But for that determination we would have found that the choice of pool was within the band of reasonable responses. This was predicated on Ms Moore’s business case. The claimant did not say and we do not find that the claimant’s role was the same or similar to Ms Clayton-Smith’s role, although there was evidently a degree of overlap. Nor did the claimant say, and nor do we find, that these roles were interchangeable.

[226]We would also have found that there were no potentially suitable alternative vacancies, for the reasons set out above, so that there was no unreasonable failure to consider redeployment.

[227]As set out above, we have concluded that the claimant would have been dismissed in any event. Had there been a fair consultation i.e. at an earlier and formative stage it is more likely that the claimant would have been dismissed on an earlier date and certainly no later than the date on which she was dismissed because we have found that Ms Moore had decided that it was necessary to delete the HUSA role several months before the redundancy consultation exercise took place whilst the claimant remained on sickness absence. The complaint of unfair dismissal is well-founded. 59 of 60

Remedy

[228]We are able to dispose of remedy as follows. Basic award

[229]As the claimant received a statutory redundancy payment from the first respondent no basic award is payable under section 119 ERA. Compensatory award

[230]We have found that there is a 100% likelihood that the claimant would have been fairly dismissed on / before 28 October 2022 had the first respondent applied a fair consultation process. Accordingly, we would apply a 100% reduction to the compensatory award under section 123(1) ERA.

[231]For these reasons, we make no order for compensation.