Dr A Chowdhury v Dr Fernandes and Partners and Others: 2300942/2023
EMPLOYMENT TRIBUNALS
Case No 2300942/2023
Between
Dr A ChowdhuryClaimantDr Fernandes and Partners and OthersRespondent
Before
Employment Judge ReaMr C. Ilangarantne (instructed by counsel) for claimantDate 27 March 2025
JUDGMENT
[1]The complaint of failure to make reasonable adjustments is not wellfounded and does not succeed.[2]The complaint of unfavourable treatment because of something arising from disability is not well-founded and does not succeed.[3]The complaint of unauthorised deductions from wages is well-founded. The respondents made an unauthorised deduction from the claimant’s wages in her September 2022 pay. The respondents shall pay the claimant £815.01 which is the gross sum deducted. The claimant is responsible for any income tax or National Insurance.
REASONS
[4]The claimant was employed by the respondents as a salaried GP from 3rd August 2022 until 20th September 2022.[5]An early conciliation notification was made on 16th December 2022 and the certificate was issued by ACAS on 27th January 2023. The claim form was presented on 27th February 2023. There are no limitation issues. Claims and issues[6]By a claim form dated 27th February 2023, the claimant brought the following complaints;a. Failure to make reasonable adjustments s.20/21 Equality Act 2010b. Discrimination arising from disability s.15 Equality Act 2010c. Unlawful deductions from wages s.13 ERA 1996[7]The issues were agreed during the preliminary hearing on 20th November 2023 and are appended to this reserved judgment and written reasons.[8]The claims against the second respondent were dismissed following the claimant’s withdrawal. The name of the third respondent was changed by agreement from Horsmans Place Surgery to Horsmans Place Partnership which is the trading name of the first respondent. However, the Tribunal identified that the first respondent is likely to be the claimant’s employer and is referred to as the respondent hereafter. Procedure, documents and evidence[9]The Tribunal referred to an electronic hearing bundle comprising 185 pages. During the course of the hearing a number of additional documents were provided by the parties which were amalgamated by the respondent into an additional bundle comprising 37 pages.[10]There was a dispute between the parties regarding the admissibility of one document, namely a letter which was obtained by Dr Fernandes from a GP who formerly worked at the GP surgery where the claimant since her dismissal by the respondent has been working on a locum basis. With the Tribunal’s permission, the respondent cross-examined the claimant in relation to her work as a locum GP. It was therefore unnecessary for the Tribunal to make a decision about the admissibility of this letter and so it was disregarded.[11]The Tribunal heard evidence from the claimant and on behalf of the respondent from Dr Fernandes and Mr Bayran. The Law Disability status 24. Section 6 of the Equality Act 2010 (“EA”) says that 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 day-to-day activities. Discrimination for a reason arising as a consequence of disability[27](1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. Duty to make adjustments[28]Section 20 says that The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[29]Section 21 says that A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person. Unauthorised deductions from wages[31]The statutory prohibitions on deductions from wages are contained in Part II of the Employment Rights Act 1996 (ERA). The general prohibition on deductions is set out in s.13. A right arises where monies have not been paid which are “properly payable”. There must be an actual failure to pay and it must relate to money that is due to the individual. 13.— Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. ……………. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.[32]Pension contributions do not fall within the definition of wages. This was confirmed by the EAT in Somerset County Council v Chambers EAT 0417/12, where it held that a tribunal did not have jurisdiction to hear the claimant’s claim that the Council was obliged to make contributions into a superannuation scheme on his behalf. The EAT thought it clear from the wording of S.27(1)(a) that it covers sums payable to the worker in connection with the worker’s employment, not contributions paid to a pension provider on the worker’s behalf. Findings of fact[33]We decided all the findings referred to below on the balance of probability, having considered all of the evidence given by the witnesses during the hearing, together with documents referred to by them. Any failure to mention any specific part of the evidence should not be taken as an indication that we failed to consider it.[34]We have only made those findings of fact necessary to determine the issues. It has not been necessary to determine every fact in dispute where it was not relevant to the issues between the parties.[35]At the time the claimant commenced employment with the respondent there were four partners including Dr Fernandes. Two of those partners had since retired prior to the hearing. Dr Fernandes had been a GP for 22 years.[36]From August 2022 the respondent was under special measures from the CQC. This related to the respondent’s policies not being up to date and some practices not being robust enough especially relating to recruitment checks and records. The respondent’s practice manager had left 6 months before without warning and this had led to some lapses before the role was filled by Mr Bayran a few days after the claimant’s employment commenced. During the covid pandemic, two of the partners had been shielding and so this had been a particularly difficult time. In 2023 the CQC lifted the special measures as the respondent had resolved the issues causing concern.[37]The claimant initially saw the role with the respondent advertised with an agency, Prospect Health, who put forward her application. The claimant attended an interview with Dr Rani Seehra on or about 21 July 2022 and was given a brief tour of the surgery. Dr Fernandes also had a conversation with the claimant. The claimant was offered the role and started on 3 August 2022.[38]The claimant completed her induction on 3 and 4 August with her first clinic on 5 August 2022. The claimant worked part-time on Wednesdays, Thursdays and a half-day on Fridays.[39]On 11 August 2022, the claimant says she first informed Dr Fernandes that she was experiencing symptoms of RSI. This was after working two sessions on Friday, two on Wednesday and one on Thursday. Dr Fernandes’ evidence was that he did not recall this. The Tribunal finds that on the balance of probabilities the claimant spoke to Dr Fernandes on 11 August 2022 but that it was a conversation in passing and that he did not take in or appreciate the significance of what she was telling him. The evidence from Mr Bayran was that several members of staff in the admin team had been made aware that the claimant had requested changes to the set up in her room. Capri gave her own padded mouse pad to the claimant to use in the interim.[40]On 15 August 2022, Mr Bayran had a meeting with all staff during which he mentioned having DSE assessments. The claimant approached Mr Bayran and asked for the form which he emailed to her on 17 August 2022. The claimant completed this form and sent it back to Mr Bayran asking for an urgent workstation assessment. Mr Bayran spoke to the claimant the same day about what changes she needed and what was already in progress.[41]There were a number of emails from and to the claimant about the changes she was seeking. The Tribunal finds that Mr Bayran did take actions to resolve things for the claimant where he could and that these were often not detailed in emails as they worked in close proximity to each other.[42]The claimant was then on bereavement leave for 3 days. As both the claimant and Mr Bayran worked part-time there were not that many days when they were both in the surgery at the same time.[43]A meeting took place between the claimant, Mr Bayran and Dr Fernandes on 1 September 2022 to discuss the adjustments the claimant needed and these were all agreed. A follow up meeting was intended to take place two weeks later.[44]Dr Fernandes’ recollection of that meeting was that the claimant was abrasive and hostile and she did not show him respect. The Tribunal finds this was a key factor which led to him discussing with the partners whether the claimant’s employment should continue. Mr Bayran’s evidence was that the claimant was impatient throughout their interactions and that her emails came across as if she was hostile to the respondent but that he found her manner was different when meeting her in person.[45]Mr Bayran felt that the claimant’s requests were not necessarily unreasonable but that her expectations of how quickly they could be implemented were not realistic when the respondent was in special measures and he was working hard to bring it back up to standard. He thought the claimant was simply not a good fit at that time.[46]The respondent invited the claimant to a Teams meeting on 20 September 2022 during which the claimant was informed that her employment was being terminated.[61]Was the claimant a disabled person at the relevant time, that is August/September 2022?[62]The claimant relies on the condition repetitive strain injury/cervicalgia. The Tribunal accepts that the claimant was suffering from repetitive strain injury (RSI) which is a physical impairment. The Tribunal is satisfied that the evidence, specifically a letter from the claimant’s former employer and the claimant’s own evidence, was sufficient to demonstrate that RSI had an adverse impact on the claimant’s ability to carry out day to day activities during the period January and February 2022, prior to her employment with the respondent. The Tribunal accepts that this adverse impact was substantial, that is more than trivial, at that time.[63]However, the Tribunal does not accept that the effects of this impairment were long-term. They had not lasted at least 12 months by August/September 2022. The symptoms had largely if not completely resolved after February 2022 and there was insufficient evidence that the claimant was taking any measures to minimise or prevent symptoms of RSI in that period or to prevent a potential reoccurrence. The claimant did not attend any medical appointments about RSI symptoms in this time period.[64]On the question of whether the effects were likely to last more than 12 months, the Tribunal was not satisfied from the evidence provided that this was the case. Although, the claimant did go on to develop a long-term condition in 2023, it is not made out that this was likely to happen, that is ‘could well happen’ in August/September 2022. Similarly, the Tribunal was not satisfied that the medical evidence at the relevant time showed the effects were likely to reoccur. When the claimant’s employment with the respondent ended, the claimant initially carried out some locum work for another GP surgery. The claimant accepted in cross-examination that she did not request any reasonable adjustments from that employer and that any equipment she wanted to use, such as a padded mouse pad and headset, she brought from home. This contradicts the claimant’s evidence in her impact statement about the severity of her symptoms in this period. The Tribunal’s decision is therefore that the claimant was not a disabled person at the relevant time, that is in August/September 2022.[65]If the Tribunal is wrong on the issue of disability, we have gone on to consider each of the disability allegations in turn. Discrimination arising from disability[66]Did the respondent treat the claimant unfavourably by dismissing her? It is well established that dismissal is capable of being an act of unfavourable treatment.[67]Did the claimant’s need and/or request for workplace adjustments arise from her disability? The Tribunal has determined that the claimant was not disabled but if we are wrong on that point, we have concluded that her need and/or request for some of the workplace adjustments arose in consequence of her condition, RSI. Some of the claimant’s requests for workplace adjustments were more general in nature and would be helpful to many employees, not specifically those sharing the claimant’s condition.[68]Was the claimant dismissed because of her need/request for workplace adjustments? The Tribunal very carefully considered what the conscious or unconscious thought process was of the decision maker when deciding to dismiss the claimant. We considered whether the fact the claimant had sent various emails requesting workplace adjustments did play more than a trivial part in the decision reached. We noted that Dr Fernandes felt the claimant was ‘overly demanding’. However, we also took note of the fact that the timing of the claimant’s dismissal did not fit with this explanation. On 1 September 2022, Dr Fernandes met with the claimant to explore and ultimately agree essentially all of the adjustments which had been requested by the claimant. Nothing further was requested by the claimant after that meeting and so it is difficult to see how the claimant’s requests for workplace adjustments which had been accommodated could be the trigger for the respondent deciding to dismiss her.[69]The claimant’s representative spent a lot of time cross-examining Dr Fernandes about the reference made in the respondent’s ET3 Response to the fact that the claimant self-referred herself for an appointment with the respondent’s onsite NHS physiotherapist. Dr Fernandes and the claimant had very different views about whether the claimant was correct to do so. However, ultimately, the Tribunal determined that this was an irrelevant distraction as it was something that was raised after the event and therefore was not a factor which led to the respondent dismissing the claimant.[70]The Tribunal concluded on the balance of probabilities that it was the wider issue of the manner in which the claimant interacted with the partners that led to them feeling she was not the right fit for the practice as it came across to them that she was negative and critical of them personally and the practice as a whole. The claimant’s criticisms were about a range of things including the medical equipment in the room and not solely relating to her need for workplace adjustments. We determined the conflict was not about the claimant having a bad attitude, it was just a clash of personalities and expectations as to how a practice should be run. There were also hints of the claimant not showing Dr Fernandes the respect he was used to from others. Ultimately, the Tribunal was satisfied that the claimant’s dismissal did not arise from her request or need for reasonable adjustments. Reasonable adjustments[71]Did the respondent have the following PCPs? The requirement to undertake patient appointments as scheduled within the working day. Yes, this PCP is not disputed by the respondent. Did the PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that tasks such as lifting the phone, carrying out paperwork, typing and examining patients resulted in pressure on her left hand/arm? The Tribunal concluded that in relation to carrying out telephone consultations this did put the claimant at a substantial disadvantage but this did not apply in relation to her seeing patients face to face. Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage? Yes, but not until 17 August 2024 when the respondent accepts it had knowledge. The Tribunal is satisfied the respondent couldn’t have been expected to have knowledge before that. What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests: o Offering the Claimant suitable gaps and rest breaks between appointments. The Tribunal accepts that this would have been helpful to the claimant. The claimant didn’t raise this in the DSE form as that was about breaks from looking at the computer screen, not breaks from work. It was not included in her email sent on 28 August. The email sent on 30 April (p105) suggests it may have been raised verbally to Mr Bayram in between. It was requested and agreed with the respondent at the 1 Sept meeting. Was it actioned? Evidence from the respondent’s witnesses is that it was, but it couldn’t be done straight away as appointments were already booked in. The Tribunal is satisfied this adjustment would have been applied to future appointments had her employment not been terminated. o Providing the claimant with physiotherapy. The claimant acquired physio through the NHS, so there was no need for her employer to pay for it. The claimant had a physio appointment back in January or February to advise on an exercise programme and there was no evidence before the Tribunal that this would need to be repeated as it was not an appointment for physical therapy to be administered. The claimant was recommended to have a follow up appointment in 4 weeks which would have been after her employment ended with the respondent. o Allowing the claimant to undertake longer appointments. The claimant’s witness statement at para 23 says she asked for longer appointments for the mother and baby clinic, that was for their benefit not as a reasonable adjustment for her. The Tribunal concludes this was not pursued by the claimant as a reasonable adjustment as it was not covered in the notes of the meeting on 1 September notes, and we don’t believe it would have removed the substantial adverse impact. This would not in our view have been reasonable in any case given the need to deliver service to the community and the stretched NHS resources. o Reducing the administration tasks to be done by the claimant. Lexicon was there for the claimant to use which would have sent her dictations to admin to type. Dragon software was also used by some doctors including Dr Fernandes but the claimant never asked for this which would have been a speak to type option. The Tribunal did take into account that the claimant was not required to type out long documents, only brief summaries of telephone appointments.[72]Did the lack of the following auxiliary aids put the claimant at a substantial disadvantage compared to someone without the claimant’s disability? A headset/ hands free phone. The Tribunal concluded that there was a speaker function on the telephone in the claimant’s consultation room. It was not the case that it didn’t work but the claimant found it was not as clear to hear some patients when using the speaker function. When we questioned the claimant, she acknowledged there were headsets in most of the rooms. The claimant couldn’t explain why she didn’t ask for access to one or why she didn’t try to use one from home. The Tribunal felt this was an example of the claimant not having a ‘can do’ attitude. A dictaphone and/or training to use it. The claimant accepted that the Lexicon system was installed on the computer in her room. The claimant says she wasn’t given training on it. Dr Fernandes says she would have had this covered during her induction and that even if this did not happen it would have taken no more than a few minutes to show the claimant how to use Lexicon. The Tribunal concluded that admin would have shown the claimant how to use Lexicon if the claimant had requested this. An ergonomic keyboard. The parties agree that an ergonomic keyboard was given to the claimant at some point. This was not raised in the claimant’s DSE assessment but must have been communicated verbally later on. The claimant sent a link to one she thought would be suitable on 28 August. The respondent provided the claimant with an ergonomic keyboard that had already been purchased previously. The claimant maintains that the one provided was not the right one for her but the respondent did not appreciate that. In the Tribunal’s assessment it was perfectly reasonable for the respondent to test whether an ergonomic keyboard it already had would be suitable for the claimant before using NHS resources to purchase a different one. There is nothing to suggest that the respondent would have refused to purchase a different one once it became aware this was required by the claimant.[73]The Tribunal therefore determined that even if the claimant was a disabled person at the relevant times, there was not a failure by the respondent to consider and make reasonable adjustments or to provide auxiliary aids to her. Unauthorised deductions from wages[74]The claimant complains that the respondent made unauthorised deductions from her wages in respect of arrears of pay, holiday pay and pension contributions.[75]The respondent conceded that there had been an inadvertent failure to pay the claimant the correct basic salary to which she was entitled and it was not in dispute that this was wages properly payable to the claimant.[76]The Tribunal concludes that the respondent did not make unauthorised deductions in respect of the claimant’s holiday pay (p157).[77]In relation to pension contributions, it was clear to the Tribunal that the deductions made from the claimant’s pay were authorised by the contract for this purpose. What was less straightforward was why the amounts deducted had not in fact been paid into the claimant’s pension. It appeared to the Tribunal having heard from both parties that the respondent intended to make these payments into the claimant’s pension but that it encountered difficulties in doing so as a result of an administrative issue. Both the respondent and the claimant would need to cooperate to overcome this obstacle which unfortunately they had been unable to do so by the time of the hearing.[78]The claimant’s representative submitted that pension contributions can be unauthorised deductions from wages and relied on two first instance employment tribunal decisions. However, the EAT’s decision in Somerset County Council v Chambers EAT 0417/12, is binding on the Tribunal. The EAT held in this case that a tribunal did not have jurisdiction to hear the claimant’s claim that the Council was obliged to make contributions into a superannuation scheme on his behalf. The EAT thought it was clear from the wording of S.27(1)(a) that it covers sums payable to the worker in connection with the worker’s employment, not contributions paid to a pension provider on the worker’s behalf. Applying the law to the facts the Tribunal determines that the respondent did not make unauthorised deductions from the claimant’s wages in respect of pension contributions.
Remedy
[79]The parties did not agree as to the calculation of the amount owing to the claimant in respect of unauthorised deduction from wages. Based on the information provided by the parties, the Tribunal has calculated that the claimant is owed £815.01 in respect of arrears of pay. This is based on the fact the claimant was paid £7538.06 gross in total during her employment but that she should have been paid £8,353.07 (£50.64 x 86.51 hours in August and 78.44 hours in September). Appendix: List of Issues[1]Disability 1.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:1.1.1 Whether the Claimant had a physical impairment namely repetitive strain injury/ cervicalgia.1.1.2 Did it have a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities?1.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?1.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?1.1.5 Were the effects of the impairment long-term? The Tribunal will decide:1.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?1.1.5.2 if not, were they likely to recur?[2]Discrimination arising from disability (Equality Act 2010 section 15)2.1 Did the Respondent treat the Claimant unfavourably by: 2.1.1 Dismissing her?2.2 Did the following things arise in consequence of the Claimant’s disability? Her need and/or request for workplace adjustments.2.3 Was the unfavourable treatment because of any of that thing?2.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?[3]Reasonable Adjustments (Equality Act 2010 ss. 20 & 21)3.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? Section 20(3) PCP3.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs: 3.2.1 The requirement to undertake patient appointments as scheduled within the working day.3.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that tasks such as lifting the phone, carrying out paperwork, typing and examining patients resulted in pressure on her left hand/arm.3.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?3.5 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests:3.5.1 Offering the Claimant suitable gaps and rest breaks between appointments.3.5.2 Providing the Claimant with physiotherapy.3.5.3 Allowing the Claimant to undertake longer appointments.3.5.4 Reducing the administration tasks to be undertaken by the Claimant.[4]Section 20(5) Auxiliary Aid4.1 Did the lack of an auxiliary aid, namely4.1.1 A headset/ hands free phone4.1.2 A dictaphone and/or training to use it4.1.3 An ergonomic keyboard put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability?4.2 Did the Respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?4.3 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests: 4.3.1 Actioning or fully implementing the above auxiliary aids.4.4 Was it reasonable for the Respondent to have to take those steps and when?4.5 Did the Respondent fail to take those steps?[5]Unauthorised deductions (Part II of the Employment Rights Act 1996) 5.1 Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted?[6]Remedy Discrimination or victimisation6.1 What financial losses has the discrimination caused the Claimant?6.2 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?6.3 If not, for what period of loss should the Claimant be compensated for?6.4 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?6.5 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%?6.7 Should interest be awarded? How much? Authorised by: