Mrs C Thorp v Kent Community Health NHS Foundation Trust: 2301692/2023 and 2306301/2023
EMPLOYMENT TRIBUNALS
Case No 2301692/2023, 2306301/2023
Between
Mrs C ThorpClaimantKent Community Health NHS Foundation TrustRespondent
Before
Employment Judge BurgeIn person for claimantDate 16 June 2025
JUDGMENT
It is the unanimous Judgment of the Tribunal that:[1]The Claimant’s complaints of direct disability discrimination and a failure to make reasonable adjustments fail and are dismissed; and[2]The Claimant’s complaint of unfair dismissal fails and is dismissed.
REASONS
[1]The Claimant was a band 6 Health Visitor and complains of direct disability discrimination, failure to make reasonable adjustments and unfair dismissal. The Respondent accepts that hearing loss and Postural tachycardia syndrome ('POTS') are "disabilities" under s.6 Equality Act 2010 but defends the claim and says that the Claimant was dismissed fairly for capability by reason of ill health.
The hearing
[2]At the start of the hearing the Claimant stated that she had not received a full paper copy of the bundle until the previous week, although she had received the draft bundle in September 2024 (without the Respondent’s additional disclosure and without her additional disclosure) and had received the electronic bundle in good time. She did not want to make an application to postpone the hearing. It was agreed that where she was not sure about the pages, she would raise it and she could have more time to find the page during the hearing.[3]As an adjustment, the Claimant was permitted to use an automatic transcription service so that she could read the words as they were spoken. However, she was not permitted to retain a copy of the automatic transcription, the Tribunal made it clear that if she wanted to do that she would need to make an additional application to do so.[4]Over the course of the hearing both sides disclosed documents late. The Claimant disclosed copies of her personal diary, the Respondent disclosed a consultation document from 2017. Neither side objected to the documents being before the Tribunal but noted frustration and said that they had been put to some prejudice with the late disclosure. Both sides were given time to digest the new information. The Respondent was allowed to recall the Claimant and the Claimant was allowed to recall Ms Clover. The disclosure over the course of the hearing, recalling witnesses, and some technical difficulties from the Claimant on the fourth morning delayed matters. Judgment was therefore reserved. There has been a delay in the promulgation of this Judgment, the Tribunal apologies for that.
The Evidence
[5]The Claimant gave evidence on her own behalf.[6]The following people gave evidence on behalf of the Respondent: 1) Rhona Clover (Head of Operational Services for Health Visiting in the South and East of Kent) 2) Anne Ford (Deputy Director for East Kent Health and Care Partnership) 3) Sharon Thompson (Senior Practitioner Health Visitor) 4) Jinny Robinson-Bright (Assistant Director for Prevention and Public Health Services); and 5) Ali Carruth (Executive Director for Health Inequalities and Prevention).[7]The Tribunal was referred during the hearing to documents in a hearing bundle of 1072 pages. The parties were informed that due to the length of the bundle, the Tribunal would not read all of the documents, the documents would be read by the Tribunal if witnesses referred to them or were asked about them. There were 23 additional pages from the Claimant’s diary entries and the Respondent produced a 9 page consultation document from 2017.[8]Both the Claimant and Ms Stroud provided written closing submissions and also gave oral closing submissions. Issues for the Tribunal to decide[9]The issues were agreed at a Preliminary Hearing before EJ G Phillips on 24 April 2024. The Issues were discussed at the start of the hearing. In particular the Tribunal raised that EJ Phillips had mentioned discrimination arising from disability in the case summary but the only complaints of disability discrimination were direct and a failure to make reasonable adjustments. The Claimant’s second claim form was very brief, she had ticked the boxes for unfair dismissal and disability discrimination. The Tribunal asked her to explain why she thought her dismissal was discriminatory and she said that she thought she was treated badly and dismissed because of her hearing loss and POTS. The parties agreed the issues were correctly captured in the List of Issues.[10]The parties agreed with the Tribunal that it was a good idea to re order the alleged acts of less favourable treatment so that they were chronological. The Claimant said there was a mistake in the date of one, it should have been 2021, not 2022. This was therefore amended.[11]The Issues for the Tribunal to decide were agreed to be those set out in the Annex.
Findings of Fact
[12]There were many points of contention over the course of the hearing. As explained to the parties, the Tribunal only finds facts and makes decisions that are relevant to the claims pursued by the Claimant as set out in the List of Issues. The Tribunal finds that, on the balance of probabilities, the following facts occurred.[13]On 9 April 2018 the Claimant started working with Kent Community Health NHS Foundation Trust as a Band 6 Health Visitor. The Claimant’s contract of employment provided “the Trust reserves the right to pay salary in lieu of notice for the whole or part of the notice period…”.[14]The Respondent had a Managing Sickness Absence policy which provides: “REDEPLOYMENT6.1 Where there is an underlying medical condition and the employee is deemed medically incapable of fulfilling the requirements of their substantive role, the line manager in conjunction with Employee Relations and Occupational Health, should explore the possibility of a suitable alternative post within the Trust.6.2 Where an employee is redeployed to a post on a lower band or is working fewer hours, there will be no protection of salary or other conditions. The implications of this should be explored fully with the employee.6.3 Where no suitable employment can be found an ill-health capability hearing will be convened to consider terminating the employee’s contract on the grounds of capability due to ill-health. … 18.8 When employment is ended by the Trust on grounds of capability due to ill health, the colleague will be entitled to a period of full pay in lieu of contractual notice. This will apply whether or not the provision of full or half pay under sick pay arrangements has expired.”[15]The Respondent also had a Flexible working policy: “3.3 Reduced Hours/ Part-Time Working3.3.1 This is where a person works to a pattern and number of hours by mutual agreement. There is no standard definition of part time working; the European Directive refers to ‘less than the normal hours of work of a full time worker.’3.3.2 Employees will not be permitted to work less than 15 hours per week as this is stipulated as the Trust minimum requirement. …. 4.2 This policy does not provide for an automatic right to work in a specific flexible way. There may be circumstances where the Trust is unable to accommodate an employee’s desired work pattern. The needs of the service remain paramount in all situations and employees are required to remain flexible to urgent need and/or respond to changing models of care. … 6.0 DECLINING REQUESTS 6.1 Managers will promote flexibility within teams for their employees; however there may be times when flexible working requests need to be declined. This may be due to a variety of legitimate business reasons which may include, but not be limited to, the following• Detrimental effect on the department’s ability to meet service needs• Contrary to other Trust policies or legislation i.e. Working Time Directive, Health and Safety etc.• Inability to re-organise work among other existing staff within the team• Inability to recruit additional staff to cover vacant hours• Detrimental effect on quality or delivery of the service• Insufficiency of work during the periods the individual proposes to work• Any planned changes to organisational structures• Disproportionate burden of additional costs• The effect on other staffs’ working lives• Whether the change negatively impacts on the interest of the team as a whole”[16]The evidence of Ms Clover was accepted that the Respondent has a policy that Health Visitors and Community Public Health Nurses cannot work under 22.5 hours per week because the requirements of training, supervision, team meetings, duty work and leadership responsibilities would leave very little client contact time if less than 22.5 hours was worked. A consultation document from 2017 (disclosed during the final hearing) showed that a consultation had taken place in 2017. The evidence of Ms Clover is accepted that those who worked under 22.5 hours had one to one meetings with Ms Clover where she asked affected individuals if they would increase their hours to the 22.5. The evidence of Ms Clover is accepted that she does not recall that anybody stayed on hours lower than 22.5 in a Health Visitor role. This policy was reviewed in 2023 because of retention and recruitment difficulties but it was decided that the policy requirement to work a minimum of 22.5 hours was to remain in place for the same reasons as in 2017. The 2023 review stated “In July 2017, the HV and FPP services undertook a flexible working consultation with colleagues, which at the time identified that it was difficult to achieve effective outputs with clinicians working less than 22.5 hours per week, subsequently HV and FPP clinicians recruited in to the service have contracts of not less than 22.5 hours per week 0.6 whole time equivalent (WTE). … In reviewing the findings and understanding the complexities of the role and work undertaken within the HV service we propose to continue the current arrangements for clinicians with substantive contracts. Working hours for all clinical staff with substantive contracts within the 451 HV and FPP services will be not less than 22.5 hours a week 0.60 (WTE)”[17]Analysis of the mandatory parts of the role was carried out and it was reported that “Continuity of care is impacted the less hours a clinician spends client facing increasing the risk for both families and the service, clinicians working less than 0.60 WTE will be challenged to fully deliver all elements of their role in particular safeguarding meetings are more unlikely to be covered by the named practitioner putting an additional burden on colleagues and increasing the likelihood that safeguarding meetings will be represented by the provision of a service report rather than clinician attendance.”[18]The evidence of Ms Clover and Ms Ford is accepted that while the flexible working policy does state a minimum of 15 hours, in health visiting the Respondent was not able to support any contract below 22.5 hours, due to the requirements of the role.[19]On 2 May 2018 an Occupational Health (“OH”) report described difficulties the Claimant was having with hearing particularly in noisy environments. She was under the care of the ENT clinic.[20]On 25 July 2018 an Access to Work Assessment was undertaken and equipment ordered.[21]The Claimant was absent from work from December 2018 to 30 January 2019. On 13 February 2019 an OH assessment took place.[22]The evidence of Ms Ford is accepted that in late 2018 and early 2019, equipment had been purchased for the Claimant to support her hearing needs. This included a Phonak Roger Pen transmitter, Phonak Roger Table Mic, Phonak Roger Focus, Phone adapter for use with Phonak Roger System and on-site training pack.[23]On 2 April 2019 the Respondent agreed to a reduction in the Claimant’s working hours from 37.5 to 34 to enable the Claimant to attend British Sign Language lessons.[24]The Claimant was then absent from work from 23 April 2019 due to ENT issues and investigations for POTS. An OH report dated 23 April 2019 reported that she was not fit for work.[25]On 14 June 2019 an informal meeting with Ms Maple took place where the Claimant reported she was waiting for a referral and did not feel well enough to return to work.[26]In July 2019 the Claimant told Ms Maple that she had POTS but other conditions still had to be ruled out.[27]An OH report dated 2 August 2019 said that the Claimant was not fit for work in the immediately foreseeable future.[28]On 1 October 2019 the Claimant was invited to a formal absence meeting which took place on 30 October 2019. The Claimant attended with her Union representative. It was agreed that she would be contacted every fortnight, which took place until April 2020 (when she went on an employment break).[29]An OH assessment on 27 November 2019 stated that the Claimant was due to see a POTS specialist to get treatment.[30]An OH report on 20 January 2019 stated that the Claimant had been suffering from tiredness, palpitations and nausea since Oct 2018. It was stated to be permanent but should improve with treatment. The Claimant was said to be medically unfit to return for at least 2 – 3 months, it was likely that she would be able to return in the future on reduced hours with more clinic based work. The recommendation was for a review to take place in 2 – 3 months time after specialist treatment had commenced.[31]On 26 February 2020 a formal long term sickness absence meeting took place with Ms Maple. It was discussed that the OH report stated that the Claimant remained unfit for work and following the previous absence review meeting there were no further health updates. Ms Maple explained that the service could not sustain the sickness absence going forward, at the last meeting some alternative options had been discussed such as redeployment but as she remained unfit these were not suitable options. The employment break policy was also an option, if the Claimant wanted to make an application, and had been emailed to her.[32]The Claimant applied and was accepted on an employment break to address her health issues, commencing on 7 April 2020, initially for a period of 6 months but extended to 9 months.[33]On 22 December 2020 a GP fit note provided that the Claimant might be fit to work with reasonable adjustments. The adjustments suggested were for a 6 week phased return, with shorter days increasing to 22.5 hours at the end of the 6 weeks. Prolonged standing, bending/lifting, dusty atmospheres, loud noises should be avoided. Further, her ear should be kept dry, she should have regular rest and toilet breaks and a laptop would be useful for homeworking.[34]On 5 and 6 January 2021 the Claimant and Ms Maple spoke, they discussed adjustments for the Claimant to be able to return to work including a phased return, avoiding prolonged standing, keeping her ears dry and drinking fluids/having regular breaks and toilet breaks. While a phased return was not usual following a career break at the Respondent, it was allowed for the Claimant. The GP fit note dated 22 December 2020 stated that the Claimant “may be fit for work” with certain adjustments including a phased return over 6 weeks gradually increasing to 22.5 hours.[35]On 6 January 2021 the Claimant was referred to OH.[36]On 6 January 2021 Ms Maple emailed the Claimant. “We discussed your GP fit note and I have requested that you review with your GP after we discussed your GP's fitnote suggestions and your responses as detailed above. If your GP is able to say that you are fit for work please would you forward this to me.”[37]On 8 January 2021 the Claimant returned to work after her employment break. She remained in work until 20 July 2021.[38]The Tribunal accepts Ms Ford’s evidence that upon her return to work the Claimant reduced her working hours to 22.5 hours a week, which was three days’ per week. She requested that she was able to rest between working days and the Respondent supported this and agreed to requests to amend her working pattern to attend appointments where necessary. The Claimant was then permitted to remain at 22.5 hours.[39]On 15 January 2021 the Claimant completed a Display Screen Equipment User Assessment Form. The form requests “Headset for phone calls. Separate keyboard and mouse. Wrist supports x 1 as recommended by OH. Consideration of chair – Charlotte is considering purchasing a chair for her home office / craft room. Consideration purchasing chair for reclining – work ergonomic Consideration for foot rest”[40]An email from Ms Maple to the Claimant on 24 December 2020 stated “You may recall when we spoke that as you have not been absent due to sickness a phased return would not be considered.” However, a further email from Ms Maple of 6 January 2021 stated that a two week phased return had been agreed. The Tribunal finds that after the two week phased return the Claimant did not raise that she needed a further phased return. Weekly one to one meetings were to be scheduled but these did not happen as frequently as intended. While the GP had recommended a 6 week phased return, there had only been a 2 week phased return. The Tribunal finds that the Claimant did not raise this as an issue. In the form the Claimant wrote “My health and disabilities mean that I have a lot of general physical discomfort. I therefore fidget and move a lot to try and keep my symptoms to a minimum. I often get neuropathic and joint pain and also suffer with migraines and fatigue so have to ensure I take regular breaks away and not stay in the same position too long to become uncomfortable. See upcoming occupational health report for further details and recommendations.”[41]The Claimant’s evidence is accepted that on her return to work on 19 January 2021 she faced issues with IT system access and building entry “My old hearing systems did not work with these, and a new headset and cable was required to be ordered. These had long delays. I had to contact the managerial assistant and topdesk IT support to get this equipment ordered. The topdesk request was closed in June 2021- (see email 06.2021). It took several weeks for the new lead to come which was not compatible. These were not compatible with my work mobile either.”[42]On 19 January 2021 the Claimant attended an Occupational Health appointment and a report was created the same day. The OH assessor suggested the following adjustments: “Limited caseload once [the Claimant] commences face to face contacts increase as her resilience improves and feels able to increase tasks aware that charlotte likely to be supported and monitored by you with regular reviews. Duty role to start half day and maybe supported to undertake role from home. When working in the office to be allocated a desk in a quieter area due to using her hearing equipment.”[43]The adjustments in place envisaged a weekly meeting between Ms Maple and the Claimant, the Tribunal accepts the Claimant’s evidence that this did not happen. The Claimant accepted in cross examination, and the Tribunal finds as a fact that the first one to one meeting took place on 19 January 2021, which was 5 working days after her return. While the meeting was not specifically named a “return to work” meeting it did discuss how the Claimant was feeling having come back to work, the work/training she was doing and IT/fob access issues.[44]A further OH referral was made on 5 February 2021 and a report produced on 12 February 2021.[45]On 23 February 2021 a one to one meeting took place between the Claimant and Ms Maple. The Claimant had received protected time and had not been allocated any client work to date to enable her to complete all of the training required. It was recorded, and the Tribunal finds as a fact, that the Claimant was struggling with hearing when in a busy environment and she was to speak to telecoms to enquire what would be helpful. The headset was reported to be compatible with her mobile phone and she was to shadow duty work on 26 February and 3 March with staggering safeguarding allocation.[46]On 22 April 2021 the Claimant was added to the duty rota for 7 May 2021 and 16 June 2021 by a senior practitioner. The Claimant still did not have some of her hearing equipment. The Tribunal accepts the Claimant’s evidence that she was upright most of the day and she struggled with her hearing in the busy office.[47]The Claimant’s evidence is accepted that she struggled with getting opportunities to shadow colleagues. At a one to one meeting on 28 April 2021 the Claimant was asked how she was feeling. She reported difficulties about her caseload and headset.[48]The Claimant’s evidence is accepted that on 7 May 2021 she struggled through duty resulting in a migraine. The Claimant gave evidence to the Tribunal that the migraine was severe, but this is rejected by the Tribunal as there was no entry in her diary to this effect and other more innocuous instances had been recorded in her diary. The diary stopped on 5 May 2021, the Tribunal rejects the Claimant’s evidence that she stopped using a paper diary between 5 and 7 May 2021 as it was not corroborated elsewhere.[49]On 18 May 2021 an email from Ms Maple supported the Claimant to work virtually until she had an ENT procedure, she could take annual leave or make up the time for her covid test, her hearing aid appointment was permitted to be taken in work time as a reasonable adjustment, and she could swap her working days so she could attend her health appointments.[50]In July 2021 Ms Maple and Andrea Green (District Managers) raised concerns in relation to the Claimant’s practice. Ms Clover was identified as the case manager for the concerns.[51]Shortly thereafter, on 20 July 2021, the Claimant commenced sickness absence due to work-related stress and POTS.[52]On 2 August 2021 Ms Clover wrote to the Claimant informing her of an investigation due to concerns raised by her managers.[53]On 6 August 2021 the Claimant had an OH assessment. The Claimant reported she was suffering from work related stress with an estimated return of 6 – 8 weeks.[54]On 20 August 2021 the Claimant had a telephone call with Ms Maple where she said she was “run down”, had cold symptoms, her mood was “up and down” and they discussed her caring responsibilities. Her medication was due to be changed. The Claimant agreed to update her manager when she saw her GP regarding fitness to work and she stated that she needed no further support at this time.[55]On a telephone call with Ms Maple on 31 August 2021 the Claimant said that there was no change in her health.[56]On 20 October 2021 in an email exchange with Gemma Marshall, HR Manager, the Claimant was advised “The Trust does not have a Grievance Policy but does have a Resolution & Accountability Framework which can be used to raise concerns that you do not feel have been addressed via the absence management process.” Ms Marshall attached a copy of the framework.[57]On 22 November 2021 the first informal sickness absence review meeting was held between the Claimant and Ms Clover. The Claimant described how IT had been an issue, she had to be mindful of her tiredness and a lot of her office time had been removed from her diary. She reported her health was different now. Ms Maple explored the practicalities stating that the Respondent had reduced the Claimant’s working hours from 37.5 to 22.5 and said that this was the minimum hours for the role. The Respondent had also tried to space the Claimant’s days off so she had built in recovery time, and keeping her in Sittingbourne. She asked whether a reduced caseload would help and the Claimant said she would think about it and spoke about how the fatigue affected her. The Claimant was encouraged to complete the Stress Risk Assessment and return it. In response to the Claimant’s complaint that time had been taken out of her diary, Ms Maple suggested a weekly catch-up in which her diary was looked at to see what was realistic for her.[58]On 2 December 2021 and 13 January 2022 the Claimant had further OH assessments stating the Claimant was not fit to carry out normal duties at that time.[59]On 26 January 2022 notice of an investigation meeting was sent to the Claimant where the allegations of poor performance were said to be: - Unsafe practice including taking height measurements of babies with reported hip dysplasia - Poor record keeping including writing records retrospectively, at inappropriate times of day and repeat record entries for mother and baby - Inappropriate entries made on clinical records including comments regarding IT issues - Poor documentation including missing ASQs, onward referrals, health needs assessments and consent - Poor decision making including undertaking virtual contacts of families requiring additional support from the service[60]On 7 March 2022 the investigation report was issued, concluding there was a case to answer regarding the Claimant’s conduct.[61]On 9 March 2022 a formal sickness absence meeting took place via Teams. The content of the meeting was reflected in a letter to the Claimant dated 21 March 2022. The Claimant attended with her Union advisor. When asked how she was feeling and if there had been any changes, the Claimant stated that she felt the same. When asked if she could return to work in the foreseeable future, the Claimant said it was difficult to provide an answer due to the work-related stress playing a part in her reason for being absent.[62]At the meeting adjustments were discussed including returning initially to half a day on duty, a phased return to work, having protected time in the Claimant’s diary, having a reduced caseload gradually increasing, protected time and making it clear on the RIO diary to those who can access and put visits in, that these time slots were not to be moved and this had been approved by management. It was also confirmed that on the Claimant’s return to work that time would also be spent completing mandatory training, redoing growth monitoring skills and the Health Visitor competency document. The Health and Wellbeing Passport was discussed as were networks such as the Disability and Carers network and revisiting the Stress Risk Assessment in order to create an action plan to address any concerns that were identified through the assessment. Ms Maple confirmed a previous adjustment to support the Claimant was a reduction in hours from 37.5 to 22.5 which she currently worked over 3 days. The Claimant’s Union representative suggested those hours being worked over 5 days but Ms Maple stated that this was something that she would need to discuss with senior management as the needs of the service would also need to be balanced.[63]On 31 March 2022 the Claimant was notified of a formal disciplinary hearing.[64]On 31 March 2022 the Claimant was assessed by OH.[65]On 10 June 2022 the Claimant’s GP signed her off as not fit for work.[66]On 16 June 2022 a further sickness absence review took place with Ms Maple, HR Advisor, the Claimant and her Trade Union representative and it was followed up by a letter dated 17 June 2022. The letter explained that the Claimant had been off sick with POTS and work related stress from 20 July 2021. The Claimant also dealing with family health had bereavement issues. The Claimant explained she was ready to return to work but needed support “Charlotte has been absent for 12 months with no confirmed date for her return, the service is unable to sustain the long-term absence. Charlotte’s GP has recommended adjustments some of which we as a service are not able to support. Charlotte has said that she would like to work 16.5 hours per week over 3 days. Unfortunately, the service is not able to support this request due to the complexity of the health visitor role: requirements to manage Specialist caseload, lead duty, attend safeguarding supervision, clinical supervision, FPPL caseload discussion, personal and devolved leadership one to ones, locality and district meetings and extensive training. KCHFT flexible working policy does state a minimum of 15 hours however in health visiting the service is not able to support any contract below 22.5 hours, due to the requirements of the role. Meaning that if a health visitor worked less than 22.5 hours the service would receive very little clinical work from the individual which does not meet the needs of the service. This was explained at the formal meeting on 16 June 2022.”[67]In relation to duty work the Claimant stated that she was not able to manage a full day of duty due to hearing fatigue/ fatigue and her GP had stated due to exhaustion Charlotte should avoid full days on duty. The letter continued: “As a service we expect the duty health visitor to be present and leading the team from 09.00 – 17.00 and are unable to support partial days on duty as this will increase risks for clients and the organisation. Duty is a fast-paced dynamic process and one which requires constantly shifting priorities and risk assessment with skilful communication between the duty health visitor and the duty team. It is essential for the effective and safe management of duty that there is consistency in terms of leadership support, triage and delegation with feedback of complex outcomes, in addition to the duty health visitor Specialist meeting attendance and multi agency working. A change of health visitor disrupts communication and has the ability to create confusion, there would be a need for protected time handover which affects service workflow, this represents increased risk for the organisation.”[68]In relation to the Claimant’s request to only work from home the letter continued that the Respondent could not support the request although there were some aspects of the role that could be completed from home such as e-learning and some meetings. There was a requirement for face to face contacts with clients to complete assessments and to provide care.[69]On 20 June 2022 a further OH referral was made, but the Claimant declined to attend because the OH report from 31 March 2022 had not been amended as she had requested. The Tribunal accepts the Claimant’s evidence that she had already gone through the previous OH assessment and had requested amendments to be made: it may have been simpler for the Respondent to commission a new report but for her it would involve going through her medical history with another medical professional. The Claimant was frustrated that the March report had been shared when she had not given permission for it be. However, the Tribunal finds as a fact that the Respondent’s view was an updated report was necessary, the original OH practitioner was on extended leave and her fit note was expiring.[70]On 7 July 2022 Ms Maple stated that she had discussed the Claimant’s request for less hours with colleagues and 19.5 hours per week could be accommodated. She also said “I would like to reassure you that if you are fit to return to work, you would be working with Senior Practitioners and Educa on Leads due to the extended period of absence from the health visitor role. In order for you to work with our Senior Practitioners I would like to give you the option of which geographical area you would prefer to work in either Faversham or Sheppey as we do not have a Senior Practitioner in the Sittingbourne Team”[71]The Tribunal finds as a fact that the reason why the Claimant was not able to return to work in Sittingbourne was that there was no Senior Practitioner there. The Claimant had been out of work for a long time and so would need to work with a Senior Practitioner.[72]On 1 July 2022 the Claimant made a flexible working request for 18 hours over 3 days per week, working 10 - 4.[73]On 6 July 2022 the Claimant’s GP note stated “may be fit for work, taking into account of the following advice”: phased return starting at 15 hours per week, will need regular breaks and access to fluids, toilet/rest, chair upgrade, no prolonged standing, no heavy lifting. Where possible to work from home, leg stool may be helpful, try to avoid full duty days due to exhaustion.[74]On 7 July 2022, Ms Maple emailed the Claimant and stated “I would like to reassure you that if you are fit to return to work, you would be working with Senior Practitioners and Education Leads due to the extended period of absence from the health visitor role. In order for you to work with our Senior Practitioners I would like to give you the option of which geographical area you would prefer to work in either Faversham or Sheppey as we do not have a Senior Practitioner in the Sittingbourne Team.”[75]On 13 July 2022 the Claimant emailed Ms Maple asking for points to be added to the Absence Review Meeting letter, saying she was having problems with the OH provider as the OH practitioner continued to be absent, requesting an update on hours of work and specifically the 15 hour minimum in the flexible working policy. She also wrote that a full day of duty work had “negative and detrimental impact” and requested half days for duty work. She also questioned whether a Senior Practitioner could meet, virtually if needed, whether or not they were based in Sittingbourne.[76]A conversation between the Claimant and Ms Maple took place on 2 August 2022 where Ms Maple stated “do you have any time to think about whether that is kind of something that’s doable for you showing up given where you live”. Also Ms Maple explained that there had been a number of discussions about shorter days and working less hours but that the Respondent was not able to agree to it. “The rationale is really those things that we've spoken about before. So just to be really clear, is around the complexity of the health visitor role the the need to kind of manage that specialist caseload lead on duty attendant things like safeguarding supervision, clinical supervision, FPP, case discussions. Personal and devolved leadership, one to ones and of course, all of the meetings for locality meetings and district meetings. And that training that we spoke about which is extensive as you knows for health visitors…”[77]The evidence of the Respondent is accepted that the Claimant was informed that upon further investigation 19.5 hours could not be accommodated because there was a policy that health visitors could work a minimum of 22.5 hours as training, supervision and other requirements of the role would leave very little time for client contact if less than 22.5 hours were worked.[78]On 7 August 2022 the Claimant wrote to Ms Maple and HR. She was frustrated that she had not received a reply to her email dated 13 July 2022 and asked further questions relating to it. She also stated that the OH assessor was still absent, she asked for the equality analysis for the Managing Sickness and Flexible Working Policies, she requested the contact details of a professional nurse advocate and asked if she could receive paid carried over annual leave.[79]On 18 August 2022 a Management Statement of Case Capability due to ill health report was produced by Ms Maple. A capability due to ill-health hearing was arranged and was initially scheduled for 30 August 2022, but rearranged due to the Claimant’s representative’s availability.[80]On 7 September 2022 the GP issued a saying that the Claimant “may” be fit for work, repeating reasonable adjustments from the last fit note.[81]On 16 September 2022 a capability due to ill-health hearing was held discussing adjustments and potential redeployment. Ms Ford attended along with a HR Manager, Ms Maple, the Claimant and her Trade Union representative. The Management Statement of Case was presented by Ms Maple. The letter which followed the hearing, dated 27 September 2022, recorded the discussions and the agreed outcomes. Ms Maple confirmed during the hearing that the adjustments recommended by the GP could be implemented, except for the reduction in hours to 15 hours per week, and the adjustments relating to being on the duty phone. Being on the duty phone meant that the Health Visitor was responsible for the phone line which has incoming queries from members of the public. The Respondent’s position was that the purpose of having one person on the duty line meant that they could triage the incoming calls and ensure that the appropriate next steps took place. They may need to have contact with a caller on multiple occasions throughout the day – and as such, it was important that the same person undertook this role in a day. Ms Maple said that the office was now quieter following changes of working patterns post covid. In relation to the reduction in hours this was because the Health Visiting service had set its own policy in July 2017, that the minimum hours which could be worked by a Health Visitor is 22.5 hours, which was an exception to the wider Flexible Working Policy which required a minimum of 15 hours.[82]The Claimant raised a number of other concerns during the hearing and the Claimant’s union representative stated that if it was not possible to accommodate all of the reasonable adjustments, then the Claimant wanted to explore redeployment to an alternative role within the Health Visiting service, preferably at a Band 5 nursing level, but she was also willing to explore administrative vacancies as well. The Claimant read out an “impassioned final statement [wherein she] identified a number of concerns with the absence management process” that had “had a profound impact on [her] wellbeing”. Ms Ford stated: “Your statement that individuals need to be treated according to their own individual needs is absolutely in line with the over-arching commitment of the Trust and I am grateful that you felt able to speak openly with me in describing where you felt this had fallen short in your experience.”[83]It was agreed that the hearing would be adjourned in order to arrange a further Occupational Health appointment, and for conversations to take place at a senior level within the Health Visiting service to explore whether it was possible to support working 15 hours per week within a different role.[84]The evidence of Ms Ford is accepted that the Claimant made a request to the Respondent to support training opportunities relating to hearing loss awareness and she agreed this would be helpful and said she would raise it at a senior level. As a result, on 20 October 2022 Ms Ford messaged her colleague (the People and Organisational Development Business Partner – Public Health Services) to see whether the Respondent offered anything by way of a deaf awareness course and then when she said they did not, Ms Ford asked her to follow it up. On 27 October 2022, Ms Ford received an email from the Signs4Life organisation, setting out that they were offering deaf awareness and sign language workshops in Kent and surrounding areas so she forwarded the email to her colleague.[85]On 28 September 2022 another Ill Health Capability Hearing was held, discussing the Claimant’s fit note and the Respondent’s inability to accommodate reduced hours. The Claimant said that no return to work interviews had been conducted and Ms Ford said that would be looked into.[86]An OH report dated 3 November 2022 stated: “Charlotte said that she returned to work from January - July 2021 but mentioned some perceived work-related stress due to a high workload and family bereavements that impacted her mental health and flared up her medical problems. Charlotte reports the previously mentioned tiredness and palpitations symptoms have settled with ongoing treatment of her chronic medical problems, and she feels well enough to consider a return-to-work plan. She has been seen by the appropriate specialists, is on treatment and awaiting further follow up. … In my opinion Charlotte is medically fit to consider doing a phased return to work on restricted / adjusted duties mentioned below duties when her sick note expires on 2/11/22, if possible and business circumstances permit: o A gradual phased return to work starting with two x 1/2 days, increasing as tolerated by up to half a day per week back to normal hours within two months o Avoid the on-call duty initially for the first few months at least while returning, then consider starting 1/2 day duties with protected time for training and documentation o Allow extra time for regular breaks (to help toilet and keep fluids up) o Manage the workload o Provide a quiet area (due to hearing problems) and / or allow some work from home to write up cases o Allow time off to attend hospital appointments”[87]A fit note received on 7 November 2022 repeated that the Claimant “may be fit for work” if the adjustments (repeated from previous fit notes) could be made.[88]A meeting on 21 November 2022 took place with Ms Ford, Ms Whitehouse (Head of Operational Health Visiting Service), the Claimant and her Union representative in attendance. The Claimant agreed the contents of the OH report, and said that she could return to her substantive role working 22.5 hours per week. Ms Ford and the Claimant agreed the following adjustments:a. a phased return to work starting with two half-days per week, increasing as tolerated by half a day a week back to 22.5 hours per week within two monthsb. the Trust was able to financially support a phased return during the first two weeks, any hours unworked after the first two weeks could then be covered by either annual leave or unpaid leave.c. The Claimant would not be expected to cover the on-call duty line during the two-month phased return and that after this period it would be possible to commence a three-month trial of half-day sessions on the on-call duty line on the proviso that the half-day was completed during the fixed morning or afternoon slots, e.g. 9am-1pm or 1pm5pm.d. A quiet room would also be booked for the Claimant on the days she undertook this work.e. A service evaluation of the viability of half-day on-call cover would then take place to determine long-term suitability.f. The Claimant would be allowed to take regular breaks in order to help with toilet requirements and in-take of fluids, managing your workload and the possibility of working from home /g. utilising a quiet room would be incorporated in to the discussions between the Claimant and her line manager as a part of the return to work process.[89]In the follow up letter Ms Ford gave the Claimant the contact details of someone who supported the nursing academy to support or signpost the Claimant to the professional nurse advocate that she wanted. A workplace buddy was also to be put in place to support the Claimant. Details of health and well being apps were also given.[90]On 12 December 2022 Sharon Thompson was appointed as the Claimant’s line manager.[91]The Claimant was due to have a discussion with her new manager, Ms Thompson, on 16 December 2022 to discuss the return to work. Unfortunately a close family member for the Claimant was unwell in hospital. Ms Thompson was unable to get hold of the Claimant so arranged for a meeting to take place on 3 January 2023.[92]In a conversation between Ms Thompson and the Claimant on 3 January they discussed the practicalities of the adjustments the Claimant needed to return to work. “Advised charlotte her first weeks would be completing training, looking at competences and e-learning. Advised would need to work from office initially whilst setting up IT, and would be observing visits with myself and buddy.”[93]On 23 December 2022 Ms Thompson wrote to the Claimant and asked if they could meet on 3 January 2023.[94]On 3 January 2023 the Claimant provided a fit note stating that she was “not fit for work” for a month due to work related stress and POTS.[95]Ms Thompson made a number of attempts to contact the Claimant leaving voice messages requesting call back, the majority going unanswered by the Claimant.[96]On 4 January 2023 the Claimant emailed saying that following their telephone call the day before she had spoken with the GP and they agreed that the adjustments needed to be in place before she returned to work and clear plan including where her work space in a quiet office space would be. She said “As such he has continued to sign me off until this is resolved. I shall forward this in the post.”[97]On 9 January 2023 Charlotte submitted the Resolution and Accountability framework form to Employee Relations. She complained of “Having to keep pushing for reasonable adjustments and acknowledgment of disabilities; Application of policies and procedures; lack of communication; sharing of sensitive medical information; delay in decision and consistent communication.”[98]The form envisaged a contact within 5 working days. However, it was not until 24 January 2023 that Ms Robinson-Bright responded to the Claimant’s form inviting her to a meeting. The evidence of Ms Robinson-Bright is accepted that the delay was due to dealing with planning for potential industrial action and disruptions to operational services. On 27 January 2023 the Claimant wrote to the Senior HR Advisor stating that as the response had been 3 times the expected response time she had already been in contact with ACAS and wanted the internal process to be paused. The Tribunal accepts the evidence of Ms Robinson-Bright that there was very little information on the Claimant’s form and she did not start investigating the complaint.[99]The Claimant contacted ACAS on 1 February 2023 and a certificate was issued on 15 March 2023.[100]On 9 February 2023 a fit note stated the Claimant was still not fit for work for a further month.[101]On 13 February 2023 Ms Ford wrote to the Claimant stating “To date you have not returned to work, despite receiving confirmation that the agreed reasonable adjustments have been implemented, and have extended your period of absence by a further two GP Fit Notes.”. The Claimant was invited to a reconvened capability due to ill health meeting on 22 February 2023.[102]On 8 March 2023 the ill health capability meeting took place with Ms Ford, the Claimant and her trade union representative. At the meeting the reasonable adjustments were discussed and confirmed. Ms Ford suggested that the Claimant meet with Ms Thompson after the meeting to agree the timings so that Ms Thompson could go away and book the room. The Claimant wanted to wait until after her next GP review as her blood pressure had been varying again and her medication needed to be upped. Included in the “actions” was that “Anne to take away an action to identify a raising awareness session for people living with hearing loss that would be suitable for presenting to the Swale Health Visiting Team. This has been identified and sent to Sharon Thompson on 8th March 2023. Sharon will be contacting the team that deliver this session to enquire as to its suitability.”[103]Ms Ford told the Claimant that as confirmation of the agreed adjustments was in place, should she fail to return to work on the 4 April 2023 or the outcome of your review with the GP confirms that you remain unfit for work it would be necessary to reconvene the capability due to ill health hearing and a potential outcome was a recommendation to terminate her employment. A provisional hearing date was scheduled for 12 April 2023.[104]Ms Thompson attempted to contact the Claimant numerous times and left voice messages. The Claimant made limited attempts to contact Ms Thompson but did not leave voice messages[105]On 31 March 2023 a fit note was received stating the Claimant was “not fit for work” for two months.[106]On 12 April 2023 a capability due to ill-health hearing was reconvened with Ms Ford, HR, the Claimant and the Claimant’s trade union representative in attendance. Again, it was stated that all the reasonable adjustments were in place, the room booked and new laptop arranged to be delivered. The Claimant said that no one had communicated the adjustments were in place. The Claimant also said that she had met with her GP and “advised how the ill health capability process ha[d] made [her] feel anxious/stressed coupled with [her] ongoing blood pressure condition”. The Claimant stated that her GP was happy to extend the fit note to allow time for the therapies to help manage stress and also informed her that her blood pressure was a condition she could manage with the right medication.[107]Ms Ford confirmed that all reasonable adjustments were now in place, the Claimant felt she would be well enough to return to work on 30 May 2023 following the end of her fit note on 26 May 2023.[108]The agreed actions included: “…Sharon to follow up with the raising hearing awareness programme to see if this can be booked for the team within the next 6 weeks or the next closest date … Charlotte to forward the email she sent to the advocate nurse as Sharon agreed to follow this up as Charlotte has not heard from this person.”[109]On 27 April 2023 an email from Ms Thompson to the Claimant explained she had been unexpectedly absent from work the previous week and stating she had been preparing for the Claimant’s return to work and she attached a draft timetable for the first 4 weeks which was draft and could be discussed and amended as required. Ms Thompson also chased the Claimant for the email about the advocate nurse.[110]Ms Thompson then emailed the Claimant on a weekly basis to keep in touch and set up the return to work. She also chased the Claimant’s advocate nurse email and stated she had booked a room for the Claimant’s first two working weeks.[111]On 30 May 2023 the Claimant telephoned to say she would not be returning to work and provided a new fit note.[112]On 14 June 2023 Ms Thompson emailed the Claimant to stay in touch and to request the most recent fit note.[113]On 16 June 2023 Ms Robinson-Bright chaired a capability due to ill-health hearing with HR, the Claimant and her union representative in attendance. The letter dated 21 June 2023 provided the outcome. The Claimant stated that she felt let down that the meeting was held on 12 April 2023 but she did not receive any contact until 27 April 2023. Ms Thompson explained that the delay in contacting her was due to unplanned absence which had been explained in the email received on 27 April 2023 but that since this date, regular emails had been sent as agreed. The Claimant confirmed that these were focused around arrangements for coming back to work, IT arrangements being made and updates regarding the mandatory training. The Claimant complained that she was not being sent physical copies of correspondence, only emails. She also complained that the deaf awareness course had not been put in place.[114]The Claimant was asked why she wanted to be redeployed when the communication from the GP and Consultant confirmed that they were happy for her to come back to work providing that the reasonable adjustments were in place. This was also supported by an OH assessment completed in April 2023 which confirmed she was fit to return to her substantive post. To be able to explore deployment, the medical opinion would need to change to say that she was unfit for her substantive role but fit for other roles. It was therefore agreed that a further OH assessment would be carried out. “It was explained to you that in these circumstances, colleagues would make an application and then placed on the redeployment pool for a period time until a suitable alternative is matched. Jude further explained that if match is found, there would be a four-week trial period and everything goes well, the colleague would be confirmed in the post. However, in the event that there was no suitable alternative within the timeframe, we would revert to an ill health hearing where a potential outcome may be a recommendation to terminate your contract of employment on the grounds of ill health… During our meeting we queried the length of time you would be entered into the redeployment pool as this is a time-limited option. I can confirm that following the review of our electronic staff record that you are a Band 6 and your continuous service date is 23 January 2013. This means that on completion of the redeployment application form, you would be entered into the redeployment pool for a period of 10 weeks.”[115]The Claimant provided a health update saying her blood pressure and heart rate were not normal and she was on medication and under the care of her GP/Specialist team to manage these conditions. The Claimant went on that she was fit for work but still signed off by the GP due to the stress at work and therefore was not fit to return to the health visiting role. One of the agreed actions of Ms Robinson-Bright was that “We agreed that I would find a nurse advocate for you to meet with in order to facilitate a nursing career discussion for you.”[116]In a letter of 21 June 2023 which confirmed the outcome of the reconvened capability due to ill health hearing on 16 June 2023, the redeployment process was confirmed. Ms Robinson-Bright stated stated they could be flexible for meeting dates: “Two weekly review meetings will be set up during your time in the redeployment pool to facilitate communication channels and explore potential options for suitable alternative employment. We agreed that future meeting dates would be set at the end of each meeting in order to be flexible to any personal commitments you may have.”[117]On 23 June 2023 the redeployment process began whereby Ms RobinsonBright, Ms Thompson and the Claimant met to complete the redeployment form. Ms Robinson-Bright also confirmed that she had followed up the Claimant’s request about seeking support with a career conversation and provided contact details of Ms Jeffries to the Claimant.[118]On 7 July 2023 a meeting took place between Ms Robinson-Bright, Ms Thompson and the Claimant. Paper copies of previous documents had been hand delivered to her. The OH assessors had tried to contact her 4 times and then closed the request. The Claimant had not yet reached out to Ms Jeffries.[119]On 14 July 2023 the Claimant attended an OH assessment.[120]On 21 July 2023 a meeting took place between Ms Robinson-Bright, the Claimant and Ms Thompson. Redeployment was the Claimant’s preferred option, she had still not contacted Ms Jeffries.[121]On 27 July 2023 the Claimant emailed Ms Jeffries but misspelt her name in the email address so the email was returned undelivered.[122]A GP fit note dated 28 July 2023 signed the Claimant off for two months and stated that the Claimant “may be fit for work” with the previous adjustments from previous fit notes and OH recommendations.[123]A letter dated 31 July 2023 stated that the Claimant was now formally in redeployment. The Claimant was told to contact the Respondent straight away if she was interested in any of the vacancies sent to her. The letter was clear on when redeployment ends: “You will be in the redeployment pool for a period of 10 weeks from 31st July to 9th October 2023. A provisional hearing date has been scheduled for 11th October 2023 at 9:30am, a calendar invite will be sent to your email prior to the hearing”[124]The Tribunal accepts the evidence of Ms Thompson that the deaf awareness training course took place in 23 July 2023 with a session for those who were unavailable on 3 August 2023.[125]Over the redeployment period Ms Thomson and the Claimant met regularly to look through roles.[126]On 4 August 2023 a meeting took place between the Claimant and Ms Robinson-Bright, who re-explained the process and stated that pursuing the possible vacancies is a shared responsibility. They reviewed current vacancies and they had a conversation about location and hours. Ms Robinson-Bright reiterated the 22.5 hour minimum requirement, the Claimant stated that this was prohibitive to her being able to return to her substantive post. Ms Robinson-Bright confirmed that adjustments remained in place for the Claimant’s return. Ms Jeffries was on annual leave until 21 August 2023.[127]On 1 September 2023 the Claimant had a follow up review meeting with Ms Thompson to discuss particular roles within redeployment. The Claimant had not yet managed to contact Optima Health to consent to the release of the OH report due to being busy, having a number of appointments to attend.[128]On 12 September 2023 Ms Jeffries emailed the Claimant and said that she was unaware of a nurse advocate role but she would be happy to set up a meeting with the clinical Academy. The Claimant asked about training, said she had found a nurse advocate outside of the Respondent and planned to contact them. The Claimant had tried to contact the OH provider to release the report. It was discussed that there was a shared responsibility for reviewing vacancies. Vacancies were discussed and the Claimant advised they were too far to travel to and that the BFI vacancies came under the health visiting service, which she wanted to move out of.[129]On 19 September 2023 Ms Thompson provided the Claimant with the helpdesk phone number for the OH provider and their email address as well as information on various support groups.[130]On 25 September 2023 a meeting with Ms Jeffries was held to discuss career development and potential roles.[131]On 3 October 2023 a fit note was provided stating the Claimant was “not fit for work” until 1 December 2023 due to work related stress and POTS.[132]A further review meeting took place on 6 October 2023 where the Claimant confirmed that she was interested in the looked after children’s vacancy but thought it might need fewer hours and breaks depending on the geographical area. “Charlotte was encouraged to review the vacancies job description, and if interested in the role to let [us] know as a matter of urgency, due to the redeployment period coming to an end.” The Claimant was in contact with the nursing advocate. The Claimant was reminded of the 10 week redeployment period which was to end on 9 October 2023 with a provisional meeting scheduled for 11 October 2023.[133]The Respondent emailed or had meetings with the Claimant with vacancies on 4, 18 24, August, 1, 15, 29 September and 3, 3, 4, 6, 6, 6, October 2023.[134]On 10 October 2023 the OH provider stated that they could not release the OH report as the Claimant had not consented to its release and advised a new referral would be required.[135]On 10 October 2023 a letter to the Claimant confirmed that the redeployment process had now concluded and no alternative suitable employment had been found. As advised in the letter dated 31 July 2023 the meeting on 11 October 2023 would take place.[136]On 10 October 2023 the Claimant complained that the meeting notice for a meeting the following day gave her insufficient notice.[137]The Reconvened Capability hearing due to Ill Health Hearing took place on 20 October 2023. A letter dated 27 October 2023 confirmed the contents of the hearing. “During the hearing on 20 October, you confirmed that your reason for absence remains the same and that there have not been any changes since you first went off sick. The report from your most recent occupational health assessment was [not] available as you had not given permission for this to be shared however you confirmed during the meeting that it was the opinion of the occupational health assessor that you remained unfit to return to work. This view was also shared by your GP evidenced by the continued provision of fit notes.”[138]The panel thought about what the Claimant said and recorded: “At this point of the hearing, the panel adjourned to give time to consider all the information put forward during the hearing. Following an adjournment, I confirmed that the panel had listened very carefully to all the evidence presented and I informed you that they were two aspects that the panel felt required follow up preventing the panel from making a decision. These points were as follows: o Concerns raised about the information that had allegedly not been redacted appropriately from the management report following your original request. o The Looked After Children (LAC) Nurse role may be considered suitable alternative employment for you and was available during your redeployment period”[139]The panel then reconvened on 26 October 2023 and stated that in relation to the issue about having personal information redacted, Ms RobinsonBright had spoken to the HR Manager for the Employee Relations Team who confirmed that the documents held by their department had been redacted following her initial request and that there was also a requirement to ensure that subsequent documents held within her confidential personnel file were also redacted and this was being confirmed by the Legal and Information Governance Team. Ms Robinson-Bright advised that the Legal Team would be in touch with her directly but that she would ensure that this was completed.[140]In relation to the second point, the Claimant confirmed the role was not suitable as it was full time and there was a requirement to travel across the East Kent area. The Claimant said that the recruiting manager stated that her colleague for the North West of Kent may have a job which was going to panel and so may be available in the future. Ms Robinson-Bright explained that there was an internal process as part of the financial management processes required by the Kent and Medway Integrated Care Board - the reference to the role going to panel meant that the request for funding was going to the panel and therefore this was not currently a live vacancy. At this point, the panel adjourned to consider all of the information presented to them. The panel decided: “The panel were agreed that you have continued to be absent from work and it was, therefore, with regret that I confirmed the decision made at the hearing was to end your contract of employment effective immediately of 26 October 2023 on the grounds of capability due to ill health. I believe that the panel had fairly considered the evidence put before us and the statements from yourself and therefore believed that the decision reached to end your employment on the grounds of capability due to ill health, was fair and reasonable. Based on your commencement date, you will receive 10 weeks’ notice paid statutory/contractual notice of termination of your contract plus payment for any outstanding leave accrued between 1 April 2023 and 26 October 2023. Your last day of employment will be deemed to be 26 October 2023 and you will be paid in lieu of notice.”[141]The Claimant appealed her dismissal. She completed a form contained in the 2017 Management Sickness Absence Policy. The form was identical to the form contained in the 2021 Policy Document, although there were differences in the policies themselves. In her appeal she ticked the boxes for procedural irregularities and that the decision was not fair and reasonable. In the narrative she stated that it would have been reasonable to extend the redeployment period to view the North LAC team as well as other opportunities. The decision to adjourn the hearing for further information was not a specific extension of the redeployment process, although it was for six days, but a finite information gathering exercise relating to a particular post identified with the redeployment process time limit. The Claimant also cited delays in support around career discussions. There was insufficient notice of the hearing, paper copies had not been provided and Ms Robinson-Bright had dealt with the grievance.[142]The north LAC nurse job based in Medway was posted, with a closing date of 15 November 2023. The hours were stated to be 22.5 hours.[143]On 1 December 2023 an appeal hearing was conducted by Ms Carruth. Her evidence to the Tribunal is accepted that she did not look at any background material, she reviewed the Management Case and the Claimant’s representations. The same day a letter was sent out refusing the appeal. In relation to the PILON, Ms Carruth concluded that the Respondent was contractually permitted to pay PILON and that it was fair for the redeployment period not to be extended. The evidence of Ms Carruth is accepted that the notice period could not have been utilised to extend the redeployment time limit. The Tribunal further accepts Ms Caruth’s evidence that she had chaired many appeal hearings and had also been the dismissing officer and she had not had experience of the redeployment period being extended in other cases, there were other people with disabilities in the redeployment pool, and it would be unfair to others in the pool if some people had their periods extended whereas others did not. The law Discrimination
The law
[144]Section 6 of the Equality Act 2010 (“EqA”) provides that disability is a protected characteristic.[145]S.39(2) EqA prohibits an employer from discriminating against one of its employees by subjecting the employee to a detriment. The burden of proof[146]S.136 of the EqA sets out the burden of proof: “…(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision…”[147]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another (Hewage v Grampian Health Board [2012] IRLR 870, SC).[148]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258. Once the burden of proof has shifted, it is then for the respondents to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.[149]The Court of Appeal in Madarassy, a case brought under the then Sex Discrimination Act 1975, states: “The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[150]This approach was approved in Hewage v Grampian Health Board [2012] UKSC 37 and in Royal Mail Group Ltd v Efobi [2021] ICR 1263.[151]Where there is a difference of treatment and a difference of status it does not take much more to shift the burden of proof. In Deman v Commission for Equality and Human Rights Commission & others [2010] EWCA Civ 1279, Sedley LJ held: “We agree with both counsel that the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.”[152]In Leicester City Council v Parmar [2024] EAT 85, HHJ Tayler gave guidance on the proper operation of the burden of proof and the use of comparators as an evidential tool. The Tribunal had found that only Asian managers had been disciplined by the manager whereas white employees had been dealt with informally in similar circumstances. This was enough to shift the burden of proof and the Tribunal was entitled to conclude that the Respondent had not discharged the burden once it had shifted.[153]Case law recognises that very little discrimination today is overt or even deliberate. Witnesses can be unconsciously prejudiced. Direct discrimination[154]Under s.13(1) of the EqA direct discrimination takes place where a person treats the claimant less favourably because of a protected characteristic than that person treats or would treat others. Under s.23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case. Under s.23(2) where the protected characteristic is disability the circumstances relating to a case include a person's abilities.[155]It is often appropriate for a tribunal to consider, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of disability. However in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as he was (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285).[156]In London Borough of Islington v Ladele (Liberty intervening) 2009 ICR 387, EAT, Mr Justice Elias (then President) confirmed the principal in Shamoon and said that a strict reliance on the comparator test can be positively misleading where the protected characteristic contributes to, but is not the sole or principal reason for, the employer’s act or decision.[157]As stated by HHJ Eady (P) in Denise Ondowa Boesi v Asda Stored Limited [2023] EAT 49, at paragraph 24: “in some cases, attempting to construct the hypothetical comparator will inevitably require the ET to first find why the complainant was treated in the way that she was, which may render the question of less favourable treatment academic. Thus, in order to be clear as to the relevant circumstances, which must be materially the same for both the complainant and the comparator (and see per HHJ McMullen QC in High Quality Lifestyles Ltd v Watts [2006] IRLR 850 at [48]), the ET may have to determine the reason for the complainant's treatment. If that reason is not because of the relevant protected characteristic, then the claim will fail.”[158]In Boesi HHJ Eady held that when deciding the hypothetical comparator for a direct discrimination complaint, the correct comparator is not a person who is not disabled, the Tribunal must impute the relevant circumstances to the hypothetic comparator. Thus the tribunal “…would have failed in its task if it had discounted that which was at the heart of the case on the facts it had found (that is, the claimant's longterm absence and inability to return to work or to undertake any of the tasks involved in her job, or any alternatives).”[159]Decisions are frequently reached for more than one reason. Provided the protected characteristic had a significant influence on the outcome, discrimination is made out (Nagarajan v London Regional Transport [1999] IRLR 572, HL. Reasonable adjustments[160]Section 20(3) EqA 2010 provides: “…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, [there is a requirement] to take such steps as it is reasonable to have to take to avoid the disadvantage.”[161]Section 20(4) EqA 2010 provides: “The second requirement is a requirement, where a physical feature 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.[162]“Substantial” is defined at section 212(1) EQA 2010 to mean “more than minor or trivial”.[163]Section 23 EqA does not apply to section 20. It must be a disadvantage which is linked to the disability. That is the purpose of the comparison required by section 20. However, it is not really a causation question. HHJ Simler P said in Sheikholeslami v University of Edinburgh [2018] IRLR 1090 that: “The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP. That is not a causation question. For this reason also, there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s circumstances…The fact that both groups are treated equally and that both may suffer a disadvantage in consequence does not eliminate the claim. Both groups might be disadvantaged but the PCP may bite harder on the disabled or a group of disabled people than it does on those without disability. Whether there is a substantial disadvantage as a result of the application of a PCP in a particular case is a question of fact assessed on an objective basis and measured by comparison with what the position would be if the disabled person in question did not have a disability.”[164]General guidance as to the overall approach to reasonable adjustments was given in Environment Agency v Rowan [2008] ICR 218: - The PCP must be identified; - The identity of the non-disabled comparators must be identified (where appropriate); - The nature and extent of the substantial disadvantage suffered by C must be identified; - The reasonableness of the adjustment claimed must be analysed.[165]The identification of the PCP should follow a liberal approach and a Tribunal should widely construe the statutory definition: Ahmed v Department for Work and Pensions at [2022] EAT 107 [25][166]The duty does not arise however unless the employer knows or ought reasonably to know that the employee is disabled and that the PCP put him at a substantial disadvantage (paragraph 20(1) Schedule 8 EQA). The EHRC Code of Practice on Employment gives useful guidance on knowledge particularly at paragraph 5.15.[167]In Secretary of State for Work and Pensions v Alam 2010 ICR 665 and McCubbin v Perth and Kinross Council EATS 0025/13 the EAT held that a tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:(1) did the employer know both that the employee was disabled and that the disability was liable to disadvantage the employee substantially?(2) if not, ought the employer to have known both that the employee was disabled and that the disability was liable to disadvantage the employee substantially?[168]Whilst a one-off decision or act could amount to a practice, the term generally connotes “some form of continuum in the sense that it is the way in which things generally are or will be done” (Ishola v Transport for London [2020] EWCA Civ 112).[169]In Rentokil Initial UK Ltd v Miller [2024] EAT 37 the EAT held that a tribunal had not erred by regarding the giving of a trial period in a new role as a reasonable adjustment - The wording of s.20(3) referred simply to "such steps as it is reasonable to have to take to avoid the disadvantage". The statute did not attempt to restrict or sub-categorise what form such steps might take in a given case. The proposed step did not have to be guaranteed to work.[170]It is for the tribunal to assess for itself the reasonableness of adjustments. The Equality and Human Rights Commission Code of Practice gives useful guidance at paragraphs 6.28 and 6.29 upon potentially relevant factors. These include allocating duties to another worker. Time limits for discrimination[171]S. 123 EqA provides: “(1)Proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. … (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. …”[172]Section 140B sets out the extension of time limits to facilitate conciliation before bringing a claim: “(1)This section applies where a time limit is set by section 123(1)(a) or 129(3) or (4). (2)In this section— (a)Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b)Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3)In working out when the time limit set by section 123(1)(a) or 129(3) or (4) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4)If the time limit set by section 123(1)(a) or 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5)The power conferred on the employment tribunal by subsection (1)(b) of section 123 to extend the time limit set by subsection (1)(a) of that section is exercisable in relation to that time limit as extended by this section.”[173]In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 the Court of Appeal confirmed that in deciding the question of conduct extending over a period: “The focus should be on the substance of the complaints … was there an ongoing situation or a continuing state of affairs in which officers … were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts”.[174]In considering whether separate incidents form part of an act extending over a period, “one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents” (Aziz v FDA 2010 EWCA Civ 304, CA).[175]There is a “very broad general discretion” conferred on tribunals to decide whether it is just and equitable to extend time Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 per Underhill LJ at [37]. The “best approach” is for the Tribunal to “assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular … ‘the length of, and the reasons for, the delay’” (paragraph 37). Unfair dismissal[176]Section 94 Employment Rights Act 1996 (“ERA”) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that they were dismissed by the Respondent under section 95, but the Respondent must show the reason for dismissing the Claimant (within section 95(1)(a) ERA).[177]S.98 ERA deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within s.98(2). “s.98(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do…”[178]The second part of the s.98 test is that, if the Respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason: “(4) 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.”[179]For capability dismissals the test is similar to the “Burchell” test in misconduct cases. It is sufficient for the employer to show that it had an honest belief, based on reasonable grounds, that the employee was incapable or incompetent: Taylor v Alidair [1978] IRLR 82.[180]Where an employee has been off work on long-term sickness absence, the Tribunal must consider whether the employer can be expected to wait any longer for the employee to return (Spencer v Paragon Wallpapers Ltd [1977] ICR 301). According to the Court of Session in S v Dundee City Council [2014] IRLR 131, Ct Sess (Inner House), the Tribunal must expressly address this question, balancing the relevant factors in all the circumstances of the individual case. Such factors include:• whether other staff are available to carry out the absent employee’s work• the nature of the employee’s illness• the likely length of his or her absence• the cost of continuing to employ the employee• the size of the employing organisation; and• (balanced against those considerations), the unsatisfactory situation of having an employee on very lengthy sick leave.[181]There is no onus on employers to create a special job where none exists (Merseyside and North Wales Electricity Board v Taylor 1975 ICR 185).[182]If an unfair dismissal complaint is well founded, remedy is determined by sections 112 onwards of the ERA. Where re-employment is not sought compensation is awarded by means of a basic and compensatory award.[183]The compensatory award can be reduced if the Tribunal considers that a fair procedure might have led to the same result, even if that would have taken longer (Polkey v A E Dayton Services Limited) [1988] ICR 142.[184]S.124A ERA provides for adjustments to the compensatory award if a party has failed to comply with the ACAS Code of Practice on Discipline and Grievance Procedures (2015).[185]The basic award is a mathematical formula determined by s.119 ERA. Under section 122(2) it can be reduced because of the employee’s conduct: “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.[186]A reduction to the compensatory award is primarily governed by section 123(6): “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding…”[187]The leading authority on deductions for contributory fault under section 123(6) remains the decision of the Court of Appeal in Nelson v British Broadcasting Corporation (No. 2) [1980] ICR 111. It said that the Tribunal must be satisfied that the relevant action by the Claimant was culpable or blameworthy, that it caused or contributed to the dismissal, and that it would be just and equitable to reduce the award.
Conclusions
[188]The Claimant started working for the Respondent from 24 April 2018. Unfortunately over the course of her employment she had a difficult time with her health, and her family’s health. She was absent due to ill health from 23 April 2019 until 6 April 2020 and then had an employment break from 7 April 2020 until 8 January 2021. Her health situation changed throughout her employment and she was referred to Occupational Health periodically in order for the Respondent to obtain advice to support her, including on 6 January 2021, 12 February 2021, 6 August 2021, 2 December 2021, 13 January 2022, 31 March 2022, 3 November 2022 and April 2023. She had many meetings and frequent contact. When she returned from sick leave/employment break in January 2021, she came back with adjustments. There were concerns over her performance and when these were raised she went off sick on 21 July 2021 and never returned prior to her dismissal. The sickness absence process was lengthy, with many meetings and the offer of numerous adjustments but ultimately the Claimant felt that she was not well enough to return to her role in June 2023 and so she entered a 10 week redeployment period to try to find alternative employment at the Respondent. The redeployment period was extended briefly to allow her explore a role that had come up during the 10 week period but ultimately there was no alternative role she could do and she was dismissed with pay in lieu of notice (as permitted by her contact of employment) on 26 October 2023. A. Direct Discrimination[189]The Claimant pursued her complaints as direct discrimination complaints, her bad treatment allegedly being “because of” her hearing loss and/or POTS. There was no actual comparator, the Claimant relied on a hypothetical comparator. That hypothetical comparator must be in materially similar circumstances including their abilities. In this case the Tribunal had to decide the “reason why” the Claimant was treated as she was, in order to construct the appropriate hypothetical comparator. The Claimant was treated as she was because she was on long term sickness absence or was returning from long term absence. The hypothetical comparator was therefore someone who was on long term absence or was returning from long term absence and who needed adjustments to return. There was nothing in the evidence, other than a bare assertion by the Claimant, that she was treated in the way she was because of her hearing loss or POTS which meant that the burden did not shift to the Respondent on any of the allegations of direct discrimination. In many of the allegations, the Tribunal found that the events did not happen as alleged. Each allegation is dealt with in turn: a. upon the Claimant returning to work in January 2021, Jenny Maple refusing the Claimant a phased return to work, not arranging for Claimant to see occupational health and not holding a return to work interview;[190]In January 2021 the GP had made some recommendations for the Claimant’s return to work, including a six week phased return and various other adjustments. It was not the Respondent’s usual practice to allow an employee a phased return following a career break however they did accommodate this for the Claimant, albeit only for a two week phased return. The Claimant has therefore not shown that Ms Maple refused the Claimant a phased return to work and this part of the complaint therefore fails.[191]The Claimant alleges that Ms Maple did not arrange for her to see occupational health. However, this is also not the case. The Claimant did see OH on 6 January 2021 and again on 12 February 2021 and so this part of the complaint fails.[192]The Claimant further alleges that there was no return to work interview. However, a one to one did take place with Ms Maple on the Claimant’s fifth day back at work. It was not labelled as a “return to work meeting”, but there was a “one to one meeting” that took place on her fifth working day back and at that meeting it was discussed how the Claimant was feeling having come back to work, the work/training she was doing and IT/fob access issues. This part of the complaint therefore also fails. b. in January 2021, Jenny Maple asking Claimant to get her GP to amend her fitness for work note, to not say she is fit to work;[193]The Tribunal has found that on 6 January 2021 Ms Maple emailed the Claimant: “We discussed your GP fit note and I have requested that you review with your GP after we discussed your GP's fitnote suggestions and your responses as detailed above. If your GP is able to say that you are fit for work please would you forward this to me.”[194]This is different from how the Claimant describes it – that Ms Maple asked her to amend the note to not say that she is fit to work. The GP had said that the Claimant “may be fit” for work with adjustments. Not all of those were put in place and so it was important that the Claimant was “fit to work” with the adjustments that were in place. The complaint fails as the Claimant has not shown that Ms Maple asked her to get her GP to amend her fit note, to not say she is fit to work. c. on 13th July 2022, Jenny Maple withdrawing the offer to reduce Claimant’s working hours to 19.5 hours per week;[195]While the Respondent’s flexible working policy does state a minimum of 15 hours can be worked (subject to business need), in health visiting the Respondent is not able to support any contract below 22.5 hours, due to the requirements of the role. Despite already being told that the health visiting role could not go below 22.5 hours, following discussions with the Claimant, Ms Maple stated in an email on 7 July 2022 that they “could support” 19.5 hours. On 13 July 2022 the Claimant then emailed Ms Maple requesting an update on hours of work and specifically the 15 hour minimum in the flexible policy. A conversation between the Claimant and Ms Maple then took place on 2 August 2022 where Ms Maple explained that there had been a number of discussions about shorter days and working less hours but that the Respondent was not able to agree to it. 22.5 hours was the minimum, they had “spoken about [it] before” and she set out again the reasons why it was not feasible for Health Visitors to work under 22.5 hours.[196]The Tribunal concludes that Ms Maple did say at one point that 19.5 hours could be supported but following further discussions she found out the Respondent was not able to offer less than 22.5 hours, and explained the reasons for this. A hypothetical comparator of someone who was on absence, returning with adjustments, with the same abilities as the Claimant would have been treated in the same way, the policy was applicable to all due to the business needs of the service. d. Anne Ford failing to send staff on a deaf awareness training course after the Claimant requested this in or around September 2022;[197]The evidence of Ms Ford is accepted that the Claimant made a request to the Respondent to support training opportunities relating to hearing loss awareness and she agreed this would be helpful and said she would raise it at a senior level. As a result, on 20 October 2022 Ms Ford messaged her colleague (the People and Organisational Development Business Partner – Public Health Services) to see whether the Respondent offered anything by way of a deaf awareness course and then when she said they did not, Ms Ford asked her to follow it up. On 27 October 2022, Ms Ford received an email from the Signs4Life organisation, setting out that they were offering deaf awareness and sign language workshops in Kent and surrounding areas so she forwarded the email to her colleague.[198]In the 8 March 2023 ill health capability meeting Ms Ford had taken away an action to identify a raising awareness session for people living with hearing loss that would be suitable for presenting to the Swale Health Visiting Team. This had been identified and sent to Ms Thompson on 8 March 2023. Ms Thompson was to contact the team that delivered this session to enquire as to its suitability.[199]At a meeting on 12 April 2023 an action was for Ms Thompson to follow up with the raising hearing awareness programme to see if this could be booked for the team within the next 6 weeks or the next closest date.[200]The deaf awareness course took place on 23 July and 3 August 2023.[201]The Tribunal concludes that while there was a delay, the course was not available internally and an external provider had to be brought in. The Claimant has not shown that Ms Ford “failed to send staff on a deaf awareness training course” after the Claimant requested this in or around September 2022 and so the complaint fails. e. on 16th September 2022, Anne Ford did not allow the Claimant to speak about her difficulties with the Respondent’s Sickness Absence Management Policy;[202]The Claimant raised a number of concerns during the hearing and the Claimant’s union representative stated that if it was not possible to accommodate all of the reasonable adjustments, then the Claimant wanted to explore redeployment to an alternative role within the Health Visiting service, preferably at a Band 5 nursing level, but she was also willing to explore administrative vacancies as well. The Claimant read out an “impassioned final statement” where she identified a number of concerns with the absence management process and the effect these has had on her well being. Ms Ford stated: “Your statement that individuals need to be treated according to their own individual needs is absolutely in line with the over-arching commitment of the Trust and I am grateful that you felt able to speak openly with me in describing where you felt this had fallen short in your experience.”[203]The Tribunal concludes that the Claimant was allowed to speak about her difficulties with the Respondent’s Sickness Absence Management Policy and so this complaint fails. f. Jenny Maple, in or around September or October 2022, not allowing the Claimant to complete training at home or work from home;[204]The Claimant was not in work at this time. She has not shown that in September or October 2022 Ms Maple did not allow her to complete training at home or work from home. The evidence showed that she was able to complete training at home or work from home in some circumstances. In a sickness absence meeting on 16 June 2022, the Claimant had requested to only work from home and it was explained to her that the Respondent could not support the request although there were some aspects of the role that could be completed from home such as e-learning and some meetings. There was a requirement for face to face contacts with clients to complete assessments and to provide care.[205]The Claimant has not shown that she was not allowed to complete training or work from home in September or October 2022 and so this complaint therefore fails. g. in January 2023, Jenny Maple moving the Claimant from the Sittingbourne area to the Faversham area;[206]The Claimant has not shown that there was a proposed move in January 2023. However, on 7 July 2022, Ms Maple emailed the Claimant and gave her a choice of Faversham or Sheppey as they did not have a Senior Practitioner in the Sittingbourne Team “due to the extended period of absence from the health visitor role”. This was then discussed further on 2 August 2022 where the Claimant was further consulted “do you have any time to think about whether that is kind of something that’s doable for you showing up given where you live” . When the Claimant was due to return there were discussions about booking rooms for her in both Sheppey and Faversham which does indicate that she was not to return to the Sittingbourne area.[207]A hypothetical comparator in the same circumstances as the Claimant, someone who had been absent for an extended period and was returning to work would have been treated the same way due to the extended period of absence from the health visitor role. The Respondent has shown that the treatment was in no sense whatsoever due to discrimination and so the complaint fails. h. fail to engage with the Claimant’s grievance which she brought in January 2023 within the proper deadlines or at all;[208]The Claimant brought a grievance on 9 January 2023 under the Respondent’s grievance process called a “request for resolution” under the “Resolution & Accountability Framework”. The form envisaged a contact within 5 working days. However, it was not until 24 January 2023 that Ms Robinson-Bright responded to the Claimant’s form inviting her to a meeting.[209]On 27 January 2023 the Claimant wrote to the Senior HR Advisor stating that as the response had been 3 times the expected response time she had already been in contact with ACAS and wanted the internal process to be paused.[210]The Claimant has not shown that the Respondent failed to engage with the Claimant’s grievance “at all”. It was the Claimant who decided to pause it. The response was late but there is no indication that this was because of the Claimant’s disabilities. The evidence of Ms Robinson-Bright has been accepted that the delay was due to dealing with planning for potential industrial action and disruptions to operational services, this was in no sense whatsoever due to the Claimant’s hearing loss or POTS. A person in materially the same circumstances as the Claimant with the Claimant’s abilities but without hearing loss/POTs would have been treated in the same way. The complaint therefore fails. I. promise the Claimant that it would apply its redeployment process, which started on or around 31 July 2023, in a flexible manner, but then fail to do so;[211]On a letter of 21 June 2023 which confirmed the outcome of the reconvened capability due to ill health hearing on 16 June 2023, the redeployment process was confirmed. Ms Robinson-Bright stated in the actions agreed: “Two weekly review meetings will be set up during your time in the redeployment pool to facilitate communication channels and explore potential options for suitable alternative employment. We agreed that future meeting dates would be set at the end of each meeting in order to be flexible to any personal commitments you may have.”[212]This stated that the flexibility was in relation to the timing of review meetings and not the overall redeployment process. All communication regarding redeployment made it clear that this was for a period of ten weeks only, although it was extended briefly to allow the Claimant to follow up on a role that had been advertised in the ten week period.[213]The Claimant has not shown that the Respondent promised to apply its redeployment process in a flexible manner. The Respondent did refuse to extend the redeployment period to allow the Claimant to access jobs arising out of the redeployment window. However, the reason was that it was fair to all that redeployment periods were not extended. This is in no sense whatsoever because of the Claimant’s POTS or hearing loss. A hypothetical comparator – someone in the redeployment pool with the same limitations and abilities as the Claimant but without POTS and/or hearing loss would have ben treated in the same way. This complaint therefore fails. j. delay in allowing the Claimant access to a professional nurse advocate (the Claimant says she originally asked for such access in or around June 2022, again in July 2023; on 25 September 2023 she was given access to a clinical academic but still did not get access to a professional nurse advocate until the end of October 2023, shortly before the redeployment process ended);[214]In evidence to the Tribunal the Claimant said It was the delays in accessing these aspects of support which had a significant detriment on my ability to engage fully with the redevelopment process. The roles which I had expressed an interest in, (see page 782) required an element of leadership and management skills. A PNA or in absence of this, JJ would have been able to support me in transferring my skillset in this way.”[215]The Tribunal concludes it was both sides, including the Claimant who was responsible for the delay in accessing a professional nurse advocate. Even if there was a delay attributable to Respondent only, which the Tribunal rejects, the Claimant does not suggest, nor is there any evidence to suggest that this was because of her disability. A hypothetical comparator – someone on long term absence, then in the redeployment pool with the same limitations and abilities as the Claimant but without POTS and/or hearing loss would have been treated in the same way. This complaint therefore fails. k. dismiss the Claimant 26 October 2023?[216]The sickness absence process and letter of dismissal was clear throughout that it was the Claimant’s sickness absence that could not be maintained. The Claimant was not fit for her role and that this was ultimately the reason for dismissal when an alternative role could not be found within the 10 week redeployment period. The Claimant has not shown that there were facts from which the Tribunal could decide, in the absence of any other explanation that the Respondent contravened the provision. There was nothing that indicated her dismissal was because of her hearing loss and/or POTS. A hypothetical comparator, someone who had the same abilities as the Claimant but who was also off sick would have been treated in the same way. B. Reasonable Adjustments (EqA2010 sections 20 & 21) 5. Did the Respondent know, or could it reasonably have been expected to know that the Claimant had the disability? From what date?[217]The Respondent conceded that hearing loss and POTS are "disabilities" under s.6 Equality Act 2010. They also accept that they knew about them at the relevant time. 6. A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:a. Not allowing staff in the Health Visiting service to work less than 22.5 hours per week; andb. expecting staff to work on a duty desk, periodically[218]The Respondent accepts it had these PCPs. 7. Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disabilities, in that the Claimant would have to commute in rush hour traffic causing an exacerbation of her PoTS symptoms?[219]The Claimant did not give evidence that commuting in rush hour traffic caused her difficulties. It was not much of a concern from the OH or GP. In a meeting in June 2022 the Claimant requested working her hours over 4 days and this was agreed by the Respondent. This would have increased the number of times she would have to commute but would have avoided her commuting in rush hour traffic. There was some mention of travel time when it was envisaged she would move roles but this was not something that was said to arise from 22.5 hour requirement nor the expectation to work on a duty desk. The Claimant has not shown that commuting in rush hour traffic caused her a substantial disadvantage. Her reasonable adjustments complaints therefore fail on this basis.[220]However, the Claimant is a litigant in person and presented her case at the final hearing on the basis that her disabilities combined with work caused her general exhaustion/hearing fatigue. She seemed to be saying that it was this that was the substantial disadvantage. Her claim form states “Occupational Health and my union representative have discussed not completing duty due to the hearing fatigue”. The Claimant’s medical records show that she required adjustments due to the exhaustion that came with the POTS and hearing so the Respondent did know about this. The Tribunal has therefore gone on to consider whether the substantial disadvantage could have been exhaustion and concludes that, had the case been put in this way, the exhaustion/hearing fatigue put the Claimant at a substantial disadvantage. 8. Did a physical feature, namely expecting staff to work on a duty desk, put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the effect of the noise in the main office made it difficult for Claimant to work on the duty desk and would cause her to suffer from migraines?[221]The Claimant had a migraine on 7 May 2021 and the Tribunal has accepted that there was auditory exhaustion as part of her hearing loss. The Tribunal accepts that the effect of the noise in the main office made it difficult for her to work on the duty desk and created auditory exhaustion which put her at a substantial disadvantage. 9. Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?[222]The Respondent knew, or it could reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage. The Claimant, the GP and OH assessments informed the Respondent about the disadvantage suffered by the Claimant in the form of exhaustion both in relation to hearing loss and POTS.10. What steps could have been taken to avoid the disadvantage?11. Was it reasonable for the Respondent to have to take those steps?12. Did the Respondent fail to take those steps? (i) PCP 1: 22.5 hours minimum hours[223]The Claimant suggests that her hours should have been reduced. Her hours of work were reduced, down to 22.5 hours but the requirements of the role meant that the hours could not go below this. A review took place in 2017 (and was revisited in 2023) which concluded that Health Visitors and Community Public Health Nurses could not work under 22.5 hours per week because the requirements of training, supervision, team meetings, duty work and leadership responsibilities would leave very little client contact time if less than 22.5 hours was worked. Continuity of care was impacted the less hours a clinician spent client facing, increasing the risk for both families and the service. There was a requirement for a minimum amount of clinical time to maintain skills. The Respondent has a responsibility to those using the Health Visiting service to provide safe care.[224]The Tribunal concludes that it was not a reasonable adjustment for the Respondent to reduce the Claimant’s hours below the 22.5 minimum, given the policy in place and the reasons for it. The Claimant was repeatedly told about this policy. There was one brief period of time where Ms Maple said that 19.5 could be supported, but after discussing with seniors it was soon explained once again why the health visiting service could not go below 22.5 hours. It is unfortunate that the consultation/policy documents were not shared with her at an earlier stage but that does not mean that the policy is not valid/ in place for considered reasons. (ii) PCP 2: Staff having to work periodically on the duty desk/physical feature of desk[225]It is not the work that is required to be done on the duty desk or the desk itself that the Claimant complains to the Tribunal about, it is the requirement to work full days and working in a quiet space whilst doing it. In the List of Issues the Claimant suggests an adjustment of “work on the duty desk in a quiet space or for only half a day”.[226]When the Claimant returns from her sick leave/employment break in January 2021 she came back on a phased return, she only worked half days of duty and she was allocated a desk in a quieter part of the office. The Claimant does not raise needing a quieter place until June 2022 and the half-day shift is not proposed until the 16 September 2022 ill health capability meeting. It is not a recommendation by an OH advisor (aside from the initial January 2021 recommendation) until the 22 November 2022 OH assessment, and not by the GP until early November 2022.[227]Following the request by the Claimant on 16 September 2022, on 21 November 2022 the Respondent proposed the Claimant trialing the half day duty working for three months once she returned from sick leave. Whilst it does not amount to a promise to put that in place as a permanent adjustment, a 3 month trial, for both sides, is a reasonable adjustment. Rentokil Initial UK Ltd v Mr M Miller makes it clear that a trial period can be a reasonable adjustment as it involves substantial change and could have enabled the Claimant to return to work thus avoiding dismissal. The trial period would have enabled the Claimant to see if it alleviated the substantial disadvantage and would have enabled the Respondent to balance the Claimant’s needs with the needs of clients/ the service. However, the Claimant did not return to work to trial it.[228]A quiet room had been agreed by the Respondent on 16 June 2022. When it appears the Claimant would be returning, Ms Thompson is tasked with booking the quiet rooms for the Claimant. The reasonable adjustment was put in place. However, the Claimant never returned to work.[229]In the List of Issues the Claimant also suggests “applying its redeployment process, which started on or around 31 July 2023, in a flexible manner” and access to a professional nurse advocate as potential reasonable adjustments. The Tribunal concludes that these adjustments would have made no difference to the PCPs of “Not allowing staff in the Health Visiting service to work less than 22.5 hours per week”; and “expecting staff to work on a duty desk, periodically” and so are not reasonable for the Respondent to have to make.[230]The Tribunal concludes that the Respondent took all reasonable steps to avoid the Claimant’s disadvantage. The complaint of a failure to make reasonable adjustments therefore fails. C. Discrimination: time limits 13. Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? Given the date the claim form in Case 1 was presented and the dates of early conciliation, any complaint about something that happened before 2 November 2022 may not have been brought in time.[231]The Claimant’s discrimination claims have failed and so time limits are not in issue. However, the Claimant contacted ACAS on 1 February 2023 and a certificate was issued on 15 March 2023 but her first claim was not brought until 13 April 2023. Any alleged acts of discrimination that occurred prior to 2 November 2022 are therefore out of time.[232]When asked by the Tribunal why she put in her claims when she did, the Claimant gave evidence that she was trying to resolve the issue before issuing a claim. The Tribunal also takes into account her health and family issues that would have taken up time and energy for her. However, the Claimant was in work until 20 July 2021 and so her health would not have prevented her from contacting ACAS at that time and once off sick she was “fit for work” with adjustments after 6 July 2022. Further, the Claimant was represented by the Union throughout the absence management process. The Tribunal therefore concludes that it is not just and equitable to extend time for the allegations occurring prior to 2 November 2022. D. Unfair dismissal 15. There is no dispute that the Respondent dismissed the Claimant. 16. What was the reason or principal reason for dismissal? Was it a potentially fair reason? The Respondent says it dismissed the Claimant for the potentially fair reason of ill health capability.a. The Respondent genuinely believed the Claimant was no longer capable of performing their duties;b. The Respondent adequately consulted the Claimant;c. The Respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;d. Whether the Respondent could reasonably be expected to wait longer before dismissing the Claimant;e. Dismissal was within the range of reasonable responses.[233]The Respondent devoted considerable resources and time to the absence management procedure. There were a number of times that the Claimant was due to come back to work but then was unable. There were numerous meetings, numerous referrals to OH. She was consulted extensively. The Respondent carried out a reasonable investigation, including finding out about the up-to-date medical position both via OH and from the Claimant’s GP. The Claimant requested adjustments which were set up for her return but she still said she could not return to her role.[234]At a meeting on 21 November 2022 the Claimant said that she could return to her substantive role working 22.5 hours per week and adjustments were agreed including a phased return to work starting with two half-days per week, increasing as tolerated by half a day a week back to 22.5 hours per week within two months, the Claimant not being expected to cover the oncall duty line during the two-month phased return and that after this period it would be possible to commence a three-month trial of half-day sessions on the on-call duty line on half day slots, a quiet room would also be booked for the Claimant on the days she undertook this work, a service evaluation of the viability of half-day on-call cover would then take place to determine long-term suitability. The Claimant was also to be allowed to take regular breaks in order to help with toilet requirements and in-take of fluids, managing your workload and the possibility of working from home / utilising a quiet room would be incorporated in to the discussions between the Claimant and her line manager as a part of the return to work process.[235]The Claimant’s manager Ms Thompson tried many times to contact the Claimant. The Claimant made some attempts to contact her back, she was dealing with a family emergency. The Claimant’s position became that she did not think there was a clear plan for her return including where her work space in a quiet office space would be and so she continued to be signed off sick.[236]A further ill health capability meeting took place on 8 March 2023 where the reasonable adjustments were discussed and again they were confirmed. However the Claimant wanted to wait until after her next GP review as her blood pressure had been varying again and her medication needed to be upped. The Claimant was warned that if she failed to return to work or the outcome of the review with the GP was that she remained unfit for work the ill health capability hearing would be reconvened and a potential outcome was a recommendation to terminate her employment. Again Ms Thompson made repeated attempts to contact the Claimant and the Claimant made limited attempts to return those calls. A fit note then provided that the Claimant was unfit to work for two months.[237]An ill health capability hearing took place on 12 April 2023, all the adjustments were in place, a laptop was to be delivered and rooms booked for the Claimant’s return. The Claimant confirmed she would be well enough to return to work on 30 May 2023. Ms Thomson emailed a draft timetable for the Claimant’s first four weeks at work and she emailed the Claimant on a weekly basis (following a week's unexpected absence initially) to keep in touch and set up the return to work. However, on 30 May 2023 the Claimant telephoned to say she would not be returning to work and provided a new fit note.[238]At the next ill health capability meeting the Claimant said that her blood pressure and heart rate were not normal and that she was on medication and under the care of her GP/Specialist team to manage these conditions. The Claimant said she was fit for work but still signed off by the GP due to the stress at work and therefore was not fit to return to the health visiting role. The Claimant further said she wanted to be considered for redeployment. The Tribunal concludes that the Respondent had waited a considerable length of time, had made repeated referrals to OH, had put in place numerous adjustments and the Claimant said that she was not fit to return to her role. By June 2023 no further improvement was likely.[239]The Claimant said to the Tribunal that she did not think it was fair for Ms Robinson-Bright to have been the decision maker, as she had been the one to acknowledge the Claimant’s grievance and so was not impartial. The Tribunal does not agree. Ms Robinson-Bright did acknowledge the Claimant’s grievance and there was to be a meeting where the Claimant would have had the opportunity to raise her concerns but before that happened the Claimant asked for the process to be paused as she had contacted ACAS. The Tribunal has accepted the evidence of Ms RobinsonBright that there was very little information on the Claimant’s form and she did not start investigating the complaint. The Tribunal concludes that Ms Robinson-Bright was an impartial decision maker.[240]By June 2023 the Claimant confirmed that she could not return to her role. She entered the redeployment process for a period of 10 weeks so that she would have an opportunity to obtain alternative employment. The period was extended for the Claimant to explore a role that had come up during the 10 week period. Could the Respondent have extended the redeployment period? Either generally or to see if the North Looked After Children role would come up, it was suitable and it was given to the Claimant? The Tribunal concludes that it could have done so, but that it was within the band of reasonable responses that they did not do so. It transpired that the role did arise shortly after the decision to dismiss, but even then it was 22.5 hour role and was based in Medway so it is not clear whether the Claimant could have done it in any event. The evidence of Ms Carruth was accepted that she had chaired many appeal hearings and had also been the dismissing officer and she had not had experience of the redeployment period being extended in other cases as it would be unfair to others in the pool if some people had their periods extended whereas others did not. There has to come a point where the Respondent cannot be expected to put up with the absence any longer, and the Tribunal concludes that that point had come.[241]The Tribunal concludes that the Respondent had a genuine belief that the Claimant was no longer capable of performing her role. The Respondent is an NHS Trust and so has resources, including HR and access to OH support. But they are not limitless resources. By the time she was dismissed the Claimant had not been at work since July 2021, a period of over 2 years. Numerous adjustments had been made and were to be in place upon her return but the Claimant herself maintained that she was not well enough to return to her role. Taking all the circumstances into account, dismissal was within the range of reasonable responses. The Respondent dismissed the Claimant for the fair reason of ill health capability. The Claimant’s claim of unfair dismissal therefore fails.[242]As the Claimant’s claim has failed the Tribunal does not go on to consider deductions/increases for Polkey, contribution and/or ACAS Code.