Mr T Thomas v Kingston and Richmond NHS Foundation Trust: 2306137/2023
JUDGMENT
The complaint of direct disability discrimination is dismissed.REASONS
[1]The claimant complains of: 1.1. Direct disability discrimination[2]The issues for the tribunal are set out in the attached Annex.Evidence
[3]The tribunal had before it the following documentary evidence: a documents bundle (1474 pages), index, chronology, cast list & reading list, witness statements bundle (24 pages), OH referral form.[4]On behalf of the claimant we heard evidence on oath from Tony Thomas (claimant).[5]On behalf of the respondent we heard evidence on oath from Tracey Kelly (Head of Nursing for Planned Care) and Sarah Shade (Deputy Chief Nurse).[6]Number references in brackets below are to the documents bundle. References with the pre-fix WS are to witness statements.[7]Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The tribunal has not referred to every document it read and/or was taken to in the findings below, but that does not mean it was not considered if the tribunal was taken to the document in evidence or as part of a reading list. The tribunal notified the parties at the outset of the hearing that they would only read documents that they were specifically referred to and would only read documents referred to in witness statements insofar as they were identified as being relevant to an issue in the case.The Law
[8]Section 13 of the Equality Act 2010 (EqA) - direct discrimination: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[9]There are two parts to consider, namely, whether the employer: - Treated the person less favourably than it treated others, and - Treated the person in that way because of a protected characteristic.[10]Section 23 EqA - comparison by reference to circumstances provides:(1) “On a comparison of cases for the purposes of section 13, 14 or 19, there must be no material difference between the circumstances relating to each case.” 11.Section 136 - Burden of Proof: (1) This section applies to any proceedings relating to a contravention of the Act.(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.[12]This is a two staged test. At the first stage, the claimant must prove (on a balance of probabilities) facts from which the tribunal could decide discrimination had taken place (the prima facie case). At the second stage (only engaged if the first stage is passed) the burden shifts to the respondent, who must prove (on a balance of probabilities) a non-discriminatory reason for the treatment. Other law[13]All caselaw as raised by the parties was considered. Findings of Fact Knowledge of DisabilityFindings of Fact
[14]The claimant relies on his condition of bilateral mixed hearing loss. The respondent concedes disability albeit the date of knowledge is disputed.[15]The claimant did not disclose any hearing problems at the time of his recruitment.[16]The claimant first became aware of the impact of his hearing loss on his work in December 2022, when a patient told him he might have a problem. This was during an assessment with a Practice Development Nurse (PDN).[17]The claimant had a 1-2-1 meeting with Jelyn Eduardo, his line manager, on 24.1.2023 (281), when he told her about his hearing problems. She referred him to Occupational Health (OH) on 26.1.2023.[18]The referral form (1181) noted most relevantly that the claimant had undergone right ear surgery in the past and an audiology review recorded 60% hearing loss on the right ear and 20% on the left. However, the referral states that the claimant said he could still hear okay. Ms Eduardo put on the form that she would like to know if he had an underlying medical condition affecting his performance at work.[19]The claimant attended the OH appointment on 17.2.2023 (303-304) and the report records that the purpose of the referral was to provide advice on how best to support this employee. It noted that he had a hearing test in India 10 years ago when he was informed he had 60% hearing loss in the right ear and 20% loss in the left. It referred to the claimant’s comment that he had problems with communication but he thought it was mainly due to language and difficulty understanding accents. The recommendation was for him to be referred to an ENT specialist and the OH clinician was of the opinion that he needed hearing aids.[20]The claimant told the OH clinician not to disclose the report to the Trust.[21]The Management Statement of Case for the claimant’s dismissal meeting on 7.6.2023 included appendices, and Appendix 4 was the referral to OH and the response (388). As the referral form set out the hearing issue, Tracey Kelly (Head of Nursing for Planned Care) who chaired the meeting, would have been aware of the problem from at least that day.[22]The claimant’s competency as a nurse was considered by the Nursing and Midwifery Council (NMC) and they sent him an email on 3.7.2023 enclosing the New Interim Order hearing outcome of 30.6.2023, which referred to the claimant’s hearing problem (493-502). He forwarded this to the Trust on 4.7.2023 along with a doctor’s hearing report and audiometry report (503) for consideration at his upcoming dismissal appeal hearing.[23]At his dismissal appeal hearing on 3.8.2023 the claimant gave Sarah Shade (Deputy Chief Nurse and appeal Chair) permission to obtain a copy of his OH health report (543), which she did.Background
[24]The claimant was employed by the respondent Trust from 4.3.2022 until 7.6.2023 as a Band 5 Internationally Educated Nurse.[25]All staff new to the Trust had to undergo a six month probation period.[26]The claimant started in the Emergency Department but transferred to Alex Ward on 17.10.2022 following a medication incident and because of concerns about his practice and his inability to cope. Events leading to dismissal[27]The claimant worked mostly supernumerary throughout his time with the Trust and shadowed qualified senior nurses who mentored him. The time period he was supernumerary was far greater than expected and much longer than for most new nurses.[28]In Alex Ward he was supervised, observed and assessed by the PDNs, the Ward Sister and Junior Sisters/Charge Nurse of the ward. He was not meeting the minimum standard required to practice and so he was put on a Performance Improvement Plan (PIP) from 31.10.2022 to 13.11.2022. This was extended until 14.12.2022 due to concerns that he was still not meeting minimum requirements (385). At the end of this period he was not at minimum standard and so he remained supernumerary to give him further time to come up to standard.[29]Due to inadequate progress, the claimant was put under a formal performance review process. In April 2023 he had a final review. Jelyn Eduardo, who was the Alex Ward Senior Sister as well as the claimant’s line manager, presented the management case.[30]The outcome was that the claimant did not meet the minimum standards to practice independently in the following criteria: service provision for safe and effective practice on oral and IV medication administration; communication; personal development; assertiveness in escalating patients; time management and prioritisation.[31]The claimant was deemed unsafe to practice independently. Consequently, he underwent a four week final performance assessment, following which he attended a Performance Hearing on 7.6.2023 to review and assess his performance and determine whether he had met the required standards for the role. Performance Hearing on 7.6.2023[32]The hearing was chaired by Tracy Kelly and the management case was presented by Ms Eduardo. The Management Statement of Case (383-388) records that during the claimant’s four week final performance assessment, he worked with senior nurses on every shift and with a PDN once a week. Based on their feedback he failed to meet the required standard to practice safely and independently as a nurse.[33]The minutes of the meeting record most relevantly the following (389-390): the claimant stated that he was not happy with the PDNs who had assessed him as he felt they were biased against him. Ms Eduardo clarified that it was not only the PDNs that assessed him, but also the band 6 Alex Ward team. the claimant said the band 6s were biased as they would have known the negative feedback from the PDNs and this made a negative impression on them. Ms Eduardo responded that the PDN assessments and feedback was not shared with the band 6s for confidentiality reasons, so they would have been assessing him impartially. Ms Eduardo stated that the claimant was still not able to achieve service provision for safe and effective practice for the criteria as previously referred to (para 30 above). It was determined that the claimant was still not able to achieve the service provision for safe and effective practice for the stated criteria and the decision was taken to dismiss him.[34]In her witness statement Ms Kelly said that she did not take the claimant’s hearing loss into account when making this decision (WS TK p14 para 34). We accept this evidence. Outcome letter[35]The outcome letter of 13.6.2023 (408) most relevantly stated: That from 17.10.2022 until the review in April the claimant had been receiving one to one support for 37.5 hours a week. Although, following the four weeks final performance assessment, he had partially achieved some of the competence requirements, he did not meet the minimum standards to practice independently in the following criteria: service provision for safe and effective practice on oral and IV medication administration; communication; personal development; assertiveness in escalating patients; time management and prioritisation. There was no evidence that the various assessments by the Practice Development Team were biased as they were carried out by different members of the team. His concern that the feedback from Alex Ward staff was influenced was also not evidenced as those members of staff did not have access to the PDN reports. Based on the evidence provided it was decided to dismiss the claimant on the grounds of capability (performance). The NMC was to be informed of the dismissal and the concerns regarding capability. Dismissal Appeal[36]The claimant appealed the dismissal on 19.6.2023. In his reasons for appealing (416-19) he indicated that: he had communication issues due to hearing loss, which may have affected his performance. He referred to his OH assessment, that recommended he continue supernumerary until he completed “an ENT doctor output”, which could take several months. He said he refused to release the report to the Trust because he did not want his supernumerary period extended for financial reasons. He had a hearing test on 20.6.2023 and he was awaiting the result (417). he believed his assessors were biased and discriminatory towards him as he came from another country (417).[37]Before the hearing, he sent in his hearing test reports to the Trust.[38]The appeal hearing took place on 3.8.2023 and was chaired by Sarah Shade.[39]Ms Kelly presented the Management Response to the Appeal (546-556). This set out the claimant’s employment history with the Trust and the details of the dismissal hearing. It also addressed the OH appointment and the claimant’s refusal to release the report, plus his referral to the NMC. The appendices to the response included the claimant’s audiometry Test E-Mail of 25.6.2023 (Appendix 7), the hearing doctor’s report sent on 27.6.2023 (Appendix 8) and an audiometry test sent on 27.6.2023 (Appendix 9).[40]The appeal hearing minutes (539-543) record most relevantly: that the claimant accepted his performance was not good enough, but he had recently realised there was a problem with his hearing. A number of audiologists had confirmed that his hearing regarding his first language was ok but he was struggling with missing things in his second language (English). They advised that he could improve his language. He had been to Specsavers and they confirmed hearing loss. He was told his left ear was working almost normally and this compensated the right ear. He said when someone called him from behind, he did not hear. When asked why he waited until June 2023 to arrange a hearing test, he answered that he had not taken it seriously and did not think the impact was as bad in terms of influencing his work. He said he had never worn hearing aids and he had confused his focus with his hearing. Ms Kelly stated that she could not act on the hearing loss at the time of the dismissal as the claimant had not consented to the OH report being released. Nor had he referred to his hearing loss at the dismissal hearing. She added that there was a medication issue and concerns regarding his practice. He had needed a number of prompts and interventions, which meant that the claimant’s practice was not safe. He had not passed medicines management and so could not do “IV admin.” He had not given proper information during emergency incidents and there was a medication error where he had double dosed. Ms Kelly said that she had to think about patient safety.[41]The appeal outcome letter of 9.8.2023 (570-577) upheld the dismissal. It also raised concerns about the claimant not taking responsibility for his own health and, following the OH assessment, not proactively seeking advice and treatment for his hearing loss, if he felt this was truly affecting his ability to provide safe care to patients (577). Alternatives to dismissal[42]Potential alternatives to dismissal were discussed at the dismissal appeal hearing (543) where it was explained to the claimant that his visa had limitations. As an Internationally Educated Nurse, it only covered him for a Registered Nurse’s role with the respondent Trust. Therefore, he could not be downgraded to a Health Care Assistant or be found a role with another employer on that visa.[43]In any event, he was told that the Trust did not sponsor overseas workers for the Health Care Assistant role. They said consideration had been given to moving him to another department, but he had already been moved from the Emergency Department and it was thought that a move would not be fair on either the claimant or other staff. Referral to Nursing and Midwifery Council on 12.6.2023[44]The claimant was managed in line with the Trusts Performance Management Policy & Procedure which states at paragraph 11: a. “Staff who are subject to a code of professional conduct with a regulatory body should be aware that [the Trust] has a duty to report any incident or alleged professional misconduct of poor practice to the appropriate body who may investigate the case” (153).[45]In her witness statement (WS SS pp23-24 para 33), Ms Shade stated that the Trust, as the claimant’s employer, had a duty to refer the claimant to the NMC because of the concerns the Trust had about his performance. We accept this evidence.[46]On 9.6.2023 Tracey Kelly referred the claimant to the NMC (referral form at 392-401) due to lack of competence. In her evidence she said the reason for the NMC referral was that the Trust had determined that the claimant was not capable of practicing as a nurse and was not subsequently signed off as a competent practitioner (WS TK para 11 p10). We accept this reason.[47]The referral form set out the Trust’s concern that there was a potential for serious harm due to the claimant not achieving the aforementioned competencies (399). Ms Kelly told them the claimant was dismissed due to capability (399).[48]Ms Kelly’s evidence was that the referral was not made because of the adequacy of the claimant’s knowledge of English (WS TK para 12 p10). We accept this. However, Ms Kelly said in the NMC referral form in answer to question 4.6 (398) that the claimant struggled with his English, which although improved, was at times difficult to understand, and caused patients to comment. There is nothing on the referral form regarding hearing loss.[49]On 15.6.2023 Ms Kelly received an email from the NMC (413) stating that it would be looking into the regulatory concerns of: a) lack of competence and b) not having the necessary knowledge of English.[50]The NMC requested certain information, which Ms Kelly provided the same day (412), confirming that there had been no harm as a result of the claimant’s language skills.[51]The NMC set up an interim hearing for 30.6.2023 (430-432). The NMC’s decision was to make an Interim Conditions of Practice Order for the protection of the public (488-492). This was to run for a period of 18 months and, amongst other things, required the claimant to be supervised whilst working as a Registered Nurse. The reasons for the decision were set out in a letter from the NMC to the claimant of 3.7.2023 (493-502). This makes clear that the claimant’s hearing loss had been taken into consideration.[52]In particular, the hearing decision records that: The claimant gave evidence that he had difficulties understanding the English language due to the many different accents and that his assessments carried out by numerous people on the ward may have been biased towards him (498). He said he had been referred to OH where issues over his hearing were raised, and at a hearing assessment at Specsavers on 20.6.2023, he was told he had moderate to severe hearing loss. He also produced a letter from an ENT consultant who assessed him on 23.6.2023 as having bilateral mixed hearing loss and recommended a hearing aid (498). The NMC was satisfied that the Trust provided cogent information (498) in the following documentation: PIPs, competency assessments, the referral document, detailed reports from a number of assessors and feedback from the claimant’s final assessment. The NMC determined that the claimant had not yet demonstrated that he had strengthened his practice and there remained a risk of repetition and a consequential real risk of harm to the public. It noted that he had made some improvement and it took account of his diagnosis of “severe mixed hearing loss” and a forthcoming appointment on 18.7.2023 for a hearing aid assessment (499).[53]On 11.8.2023 Sarah Shade updated the NMC with the appeal outcome by email (579). It did not refer to any hearing loss and nor did it include any attachments.[54]The NMC kept Ms Kelly informed of progress with the case (WS TK paras 21&22).[55]There was a review of the Interim Order on 8.12.2023 (657-664) when the previous regulatory concern of the claimant not having the necessary knowledge of English was replaced by a concern that his health (hearing impairment) was such that it presented a risk to patients (659). However, the panel was not satisfied that there was a prima facie case that the clinical concerns and associated risks identified were related to his hearing (660).[56]There was a further review on 19.6.2024. The outcome letter (712-724) referred to an audiologist report of 16.1.2024 from Kingston Hospital, and a medical letter dated 17.1.2024 (716). In view of this evidence, the NMC were no longer concerned about the claimant’s health as his hearing impediment was being effectively managed by a hearing-aid system. The panel determined that there was no longer evidence to support the regulatory concern of health (717).[57]With respect to competence, as the claimant was working as a senior healthcare assistant and not as a registered nurse, he had not had an opportunity to comply with current Interim Order conditions to address his competency as a nurse (717). The panel considered the competency concerns to be serious and wide ranging and included the failure to demonstrate the standards of knowledge, skill and judgment required to practise independently in the previously stated criteria.[58]Consequently, the panel concluded that an Interim Order remained necessary on the grounds of public protection (718) and determined that an Interim Conditions of Practice Order remained appropriate and proportionate in order to maintain public protection and meet the public interest (719). Thereafter, the matter was handed over to case examiners.[59]On 27.1.2024 Ms Eduardo received a letter from NMC confirming that the examiners had decided there was a case to answer, and the claimant had agreed to undertakings (1121-1122). In the letter to the claimant setting out the reasons for this decision (1092-1115) the NMC explained that they had considered the evidence including witness statements from four staff members who were involved in supporting, mentoring and assessing his clinical skills, together with the claimant’s admission.[60]Ms Kelly’s evidence was that, once the referral to the NMC had been made, the Trust could not withdraw it and the NMC had to investigate (WS TK p7 para 35). We accept this. Ms Shade’s evidence was that it would be entirely inappropriate for the Trust to interfere or seek to direct the NMC on their investigations and/or findings (WS SS p24 para 33). We accept this. In any event, the claimant told the NMC of his hearing loss and it was taken into account. Discussion and Conclusions Knowledge of DisabilityDiscussion and Conclusions
[61]The respondent’s case is that they did not have knowledge of the claimant’s disability until the appeal hearing of 3.8.2023. However, in our judgment, knowledge of the hearing loss itself came earlier, although the full extent and impact of it was not known until the appeal.[62]For Ms Eduardo, who presented the management case at the dismissal hearing, she was aware of the claimant’s hearing loss from 24.1.2023 when she discussed it with him and subsequently referred him to OH.[63]For Ms Kelly, who chaired the dismissal hearing, she was aware from the date of the hearing, being 7.6.2023, when she considered the Management Statement of Case, which included the OH referral form as an appendix.[64]For Ms Shade, who chaired the dismissal appeal hearing, it was at the appeal hearing at the latest, being 3.8.2023, that she became aware.[65]However, nobody from the Trust’s management saw the OH report until the appeal hearing due to the claimant’s refusal to give permission for its release.[66]It is unclear who had sight of the email from the NMC, sent to the Trust by the claimant on 4.7.2023, which gave more detail of the hearing problem. However, it is of little consequence, as it is accepted that the email was considered at the appeal on 3.8.2023, when the full extent of the hearing loss became known. Direct disability discrimination Comparator[67]The claimant relies on a hypothetical comparator. In our judgment this is someone who was an Internationally Educated Nurse on a sponsored visa, who had competency issues similar to those of the claimant but who did not have hearing problems. This is the hypothetical person we have compared the claimant with.Issues
[68]The following are the main issues for consideration, as taken from the list of issues in the attached Annex:3.1 The claimant says his disability is: bilateral mixed hearing loss.3.2 Did the respondent do the following things:3.2.1 Reject the Claimant’s appeal on 9 August 2023 despite being aware of the medical evidence relating to his hearing loss namely the medical evidence from June 2023 submitted for the appeal hearing;3.2.2 Not provide an alternative option to the claimant to dismissal;3.2.3 Make a referral to the Nursing and Midwifery Council on 12 June 2023 – about the Claimant’s dismissal and the Respondent’s concerns regarding the Claimant’s capability to practice – part of which included a referral in relation to lack of adequate knowledge of English. They did not seek to withdraw that referral or inform the NMC once they were aware of the claimant’s hearing loss.3.3 Was that less favourable treatment?3.4 If so, was it because of disability?3.5 Did the respondent’s treatment amount to a detriment? Discussion AllegationsDiscussion
[69]The allegations at3.2.1 and3.2.2 occurred. That at3.2.3 partly occurred in that Ms Kelly made the referral, but it was not on the basis of the claimant’s inadequate knowledge of English. It was only on competency. The NMC raised a language concern themselves after considering Ms Kelly’s response to a question on the referral form. The Trust did not seek to withdraw the referral or inform the NMC of the claimant’s hearing loss. Less favourable treatment[70]In terms of whether this was less favourable treatment, the tribunal has to compare the claimant’s treatment with that of his hypothetical comparator. Furthermore, there must be something from which the tribunal can properly draw an inference of discrimination. It is not enough to say that the claimant was treated badly and he had hearing loss. The appeal[71]It is clear that the claimant struggled to reach the required competencies. For the communication competency, it is likely that the combination of his standard of English and hearing loss had an impact on his performance in this regard. This is supported by the NMC raising a health concern in December 2023, once they fully understood the extent of his hearing problem.[72]However, it was not the claimant’s hearing issue itself, which caused the Trust to take action. It was the failure to reach the necessary standard of performance for a Registered Nurse.[73]Furthermore, there is no evidence that other failed competencies were impacted by the claimant’s hearing loss, including service provision for safe and effective practice on oral medication, time management and prioritisation. He failed these competencies regardless of his hearing.[74]The claimant was supernumerary for much longer than the usual time period for new nurses, and it was because of his lack of progress and capability concerns that he was dismissed.[75]The Trust was fully aware of the claimant’s hearing loss at the dismissal appeal hearing. However, they upheld the dismissal on the basis there were competency failures which were unconnected to hearing, such as medicine management.[76]We note that the NMC independently had concerns about the claimant’s competency in similar areas to the Trust and in the knowledge of his hearing problem.[77]The claimant has not proved a prima facie case for this allegation and therefore the burden of proof has not shifted to the respondent.[78]Comparing the claimant to the hypothetical comparator in materially similar circumstances, in our judgment, such a person would have been treated the same. Alternative option[79]The reason the claimant was not offered an alternative role was because his visa limited him to working as a Registered Nurse with the Trust. Therefore, he could not be downgraded to a Health Care Assistant. The Trust felt that it was inappropriate moving him to another department because he had already been moved once and it would not be fair on either the claimant nor other staff.[80]There is no evidence that the claimant’s hearing loss influenced this decision. He has not proved a prima facie case for this allegation and therefore the burden of proof has not shifted to the respondent.[81]Comparing the claimant to the hypothetical comparator in materially similar circumstances, in our judgment, such a person would have been treated the same. NMC referral[82]The Trust was duty bound to refer the claimant to the NMC once it had dismissed him on capability grounds. They had no power to withdraw it thereafter and it was not appropriate to seek to influence the NMC’s investigations.[83]This matter was not influenced by the claimant’s hearing loss. The reason for the referral was competency. The claimant has not proved a prima facie case for this allegation and therefore the burden of proof has not shifted to the respondent.[84]Comparing the claimant to the hypothetical comparator in materially similar circumstances, in our judgment, such a person would have been treated the same. Overall conclusion[85]The claimant’s bilateral mixed hearing loss did not influence the actions complained of, and he was not treated less favourably than his hypothetical comparator.[86]For these reasons the claimant’s complaint of direct disability discrimination fails on all counts. Time limits[87]As we have not found in favour of the claimant on any allegation, we have not proceeded to consider the issue of time limits.