Ms K Kolawole v South London and Maudsley NHS Foundation Trust: 2306571/2023
EMPLOYMENT TRIBUNALS
Case No 2306571/2023
Between
Ms. K. KolawoleClaimantSouth London and Maudsley NHS Foundation Trust PUBLIC PRELIMINARY HEARINGRespondent
Before
Employment Judge SudraDate 22 September 2025
REASONS
[1]These reasons are provided following an Open Preliminary Hearing heard on 14th February 2025.[2]At the outset of this hearing I disclosed to the parties that I had worked with the Respondent’s representatives, Capsticks LLP, but had not had any prior involvement with the Respondent itself. Therefore, there was no reason for me not to continue with the Hearing which was listed to determine a preliminary issue. The Respondent did not object. After consultation with his client, Mr. Onibokun informed me that she had no objections either. I was grateful to the parties for their pragmatic stance.
Background
[3]The Respondent is a large NHS Mental Health Trust in south London which provides health services to its populace and employs circa 5,000 staff. The Claimant began employment with the Respondent on 3rd December 2000 as a health care assistant. The Claimant’s employment was terminated on 18th June 2023 on grounds of capability.[4]The Claimant began Acas early conciliation on 17th September 2023 (‘Day A’) and was issued with an Acas early conciliation certificate on 29th October 2023 (‘Day B’). On 28th November 2023, the Claimant presented her ET1 claim form and the Respondent defended the claims by way of an ET3 and Grounds of Resistance on 10th January 2024.
BACKGROUND
[5]The Claimant complained of:(i) ‘Ordinary’ unfair dismissal;(ii) discrimination arising from disability; and(iii) failure to make reasonable adjustments. Page 2 of 10 The Purpose of the Preliminary Hearing[6]On 15th October 2024, the Tribunal listed this Hearing to determine whether or not the Claimant was disabled for the purposes of s.6 of the Equality Act 2010 (‘EqA’) at the relevant times (it is common ground between the parties that the relevant time is 13th September 2022 to 18th June 2023). A Final Hearing has been listed to take place over four days from 26th to 29th August 2025.[7]The Claimant asserts that she is disabled under the EqA with the impairment of chronic right shoulder pain.
The Hearing
[8]The Claimant was in attendance and was represented by Mr. Onibokun (consultant); the Respondent was represented by Miss. J. Whiteley (solicitoradvocate) and was accompanied by Ms. S. Patel (solicitor). For the purposes of the Hearing I had before me:(i) An agreed 207 page bundle prepared by the Respondent2; and(ii) written submissions from the Claimant.[9]The Claimant gave evidence in support of her position that she was disabled at the relevant times. The Claimant’s oral evidence was substantially more informative than her disability impact statement.[10]The Respondent disputes that the Claimant is disabled and says that she has failed to provide sufficient evidence to demonstrate that her impairment had a long term and substantial adverse effect on her ability to carry out day-to-day activities at the relevant time. 2 Which included the Claimant’s disability impact statement. Page 3 of 10
Relevant Law
[11]The EqA defines the protected characteristic of ‘disability’ in s.6(1) as follows: ‘A person (P) has a disability if—(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.’[12]The burden of proof is on a Claimant to show, on the balance of probabilities, that they were disabled at the relevant time.[13]When considering the meaning of s.6(1), the following should be considered:(a) The terms of Part 1 of Schedule 1 of the EqA, entitled ‘Determination of disability’;(b) guidance issued by the Disability Unit on matters to be taken into account in determining questions relating to the definition of disability (s.6(5)), the latest version of which was published on 8th March 2013 (‘the Guidance’); and(c) the Code of Practice on Employment (2011), published by the Equality and Human Rights Commission (‘the Code’) and, indeed, an Employment Tribunal must take account of (b) and/or (c) where it considers the Guidance and/or Code, as applicable, relevant, pursuant to paragraph 12 of Part 1 of Schedule 1 of the EqA.[14]As a general rule, when assessing whether an impairment has a substantial adverse effect on the ability of a person to carry out normal day-to-day activities, measures taken to treat or correct the impairment are to be disregarded – but that does not apply to sight impairments “correctable by spectacles or contact lenses” (paragraph 5(3) of Part 1 of Schedule 1 of the EqA). Page 4 of 10[15]The leading case on the examination of whether a person is disabled is the EAT decision of Goodwin v. Patent Office [1999] ICR 302. While that case concerned the predecessor legislation to the Act, the four questions identified in Goodwin remain appropriate:(1) The impairment condition: Does the Claimant have an impairment which is either mental or physical?(2) The adverse effect condition: Does the impairment affect the Claimant’s ability to carry out normal day-to-day activities, and does it have an adverse effect?(3) The substantial condition: Is the adverse effect (upon the Claimant’s ability) substantial?(4) The long-term condition: Is the adverse effect (upon the Claimant’s ability) long-term?[16]The assessment is done as at the date of the alleged discriminatory act(s) to determine whether the claimant was disabled then (Cruickshank v. VAW Motorcast Ltd [2002] ICR 729). In relation to the second question: Does the impairment affect the Claimant’s ability to carry out normal day-to-day activities, and does it have an adverse effect?[17]The assessment of adverse effect is personal to the Claimant.[18]As the EAT in Goodwin observed: ‘The focus of attention … is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do.’[19]The Guidance includes examples of day-to-day activities, such as shopping and driving. Page 5 of 10[20]Appendix 1 to the Code states that ‘normal day-to-day activities’ are activities that are carried out by most people on a fairly regular and frequent basis, and gives examples such as walking, driving, typing and forming social relationships. In relation to the third question: Is the adverse effect upon the Claimant’s ability substantial?[21]This is a question of fact. The effect must be “more than minor or trivial” (s.212(1) of the EqA).[22]In determining whether an adverse effect is substantial, a tribunal must compare the Claimant’s ability to carry out normal day-to-day activities with the ability the Claimant would have if not impaired – not what the Claimant can do with what the average person can do (Paterson v. Commissioner of Police of the Metropolis [2007] ICR 1522, EAT).[23]Paragraph 8 of Appendix 1 to the Code states: ‘The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people.’[24]However, the Guidance (at paragraph B7) indicates that: ‘Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example… to prevent or reduce the effects of an impairment on normal day-to-day activities.’ The fourth question: Is the adverse effect long-term?[25]Paragraph 2(1) of Part 1 of Schedule 1 of the EqA stipulates that: ‘the effect of an impairment is long-term if-(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or Page 6 of 10(c) it is likely to last for the rest of the life of the person affected.’[26]This is determined as at the date(s) of the alleged discriminatory act(s), by reference to facts and circumstances existing at that date (McDougall v Richmond Adult Community College [2008] EWCA Civ 4). Application to the Claim Before the Tribunal[27]The Claimant has advanced one basis upon which she is disabled: Chronic right shoulder pain. The Claimant’s evidence was that she found it difficult to drive long distances, had trouble sleeping on her right shoulder, and relied on family for assistance with shopping and cooking.[28]The first mention of shoulder pain in the Claimant’s GP notes was on 10th February 2014 [129] which was caused by a road traffic incident. The Claimant was prescribed with prescription painkillers (Tramadol and Naproxen). Whilst driving on 11th September 2014, the Claimant was involved in a road traffic collision which caused her tenderness in her right knee and bicep. On 24th October 2104, the Claimant was again seen by her GP for new right shoulder pain resulting from the road traffic collision.[29]The third record of right shoulder pain (new) was on 18th May 2017 where the GP recorded that the Claimant’s right shoulder was ‘stiff’ [124]. Apart from these three occasions, the Claimant did not visit her GP with right shoulder pain between February 2014 and May 2017. In the intervening period the Claimant was continuing to take painkillers but they were also for other conditions the Claimant had (headaches, backpain, and knee-pain).[30]The physical aspects of the Claimant’s work would cause the Claimant to have pain in her shoulder so she again, visited her GP on 10th April 2018 and was prescribed a general painkiller; Co-codamol. On this occasion it was the first time the GP had issued a fit-note for right shoulder pain as restraining patients at work aggravated the Claimant’s right shoulder pain. Page 7 of 10[31]In or around December 2020 or January 2021, the Claimant had an operation on her right shoulder. In May 2021, the Claimant was seen by a consultant at King’s College hospital whom discharged her as she reported to be ‘significantly better…back to activities such as driving and…performing all activities of daily living’ [162] (My underlining).[32]The Claimant did not return to her GP for pain in her right shoulder between May 2021 and most of January 2024. She did attend her GP on 21st January 2024 with new shoulder pain and this was post submission of the Claimant’s ET1 claim form. The first question: Does the Claimant have an impairment which is either mental or physical?[33]It was not disputed by the Respondent that the Claimant had a right shoulder impairment; so the answer is yes. The second question: Does the impairment affect the Claimant’s ability to carry out normal day-to-day activities, and does it have an adverse effect?[34]There is no evidence that the Claimant’s impairment had an adverse effect on her ability to carry out normal day-to-day activities other than, understandably, during her post-operative period in early 2021 for a period of some five or six months. Lifting or restraining people are not normal day-to-day activities. The Claimant had not reported to her GP that she had issues with cooking, shopping, dressing, driving, day-today normal lifting, or with ablutions. The third question: Is the adverse effect upon the Claimant’s ability substantial?[35]It was disputed by the Respondent that any effect of the Claimant’s right shoulder pain were substantial, or more than minor or trivial. It is documented that at times the Claimant did experience tenderness or pain in her right shoulder but there is nothing more by way of medical evidence. In her disability impact statement [192] the Claimant said: Page 8 of 10 ‘I found it difficult to drive, especially long distances; it affected my sleep due to the pian especially, if I slept on my right shoulder; shopping required the assistance of my daughters who lived with me; cooking was mostly done by them. Sometimes, bathing could become challenging.’ [C, para.10] However, the medical evidence before me does not corroborate what the Claimant says. The fourth question: Is the adverse effect long-term?[36]The medical documents and chronology of the Claimant’s impairment does not support any adverse effect being long-term.
Conclusions
[37]The EqA Guidance Appendix provides an invaluable suggested list of situations that it suggests may or may not reasonably amount to a substantial adverse effect on normal day-to-day activities if taken alone.[38]However, the Claimant has failed to prove that her claimed adverse effects were long-term or, in fact, impacting her in any substantial way or with normal dayto-day activities.[39]This concludes my findings about all the disability issues at all the relevant dates. The Claimant did not meet the statutory test for disability at any relevant time and her disability discrimination claims are therefore, struck out as having no reasonable prospects of success (r.38(1)(a)).
CONCLUSION
[40]The Claimant’s unfair dismissal claim will be heard at a truncated Final Hearing on 26th and 27th August 2025 and the parties will separately be sent a Notice of Hearing.[41]The parties must comply with extant Case Management Orders for the Final Hearing. Page 9 of 10
The Law
[42]Section 94 of the Employment Rights Act 1996 gives employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to an employment tribunal under section 111. The claimant must show that she was dismissed by the respondent under section 95.[43]So far as is relevant, section 98 of the Employment Rights Act 1996 states:(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 principle 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,[44]Section 98(4) deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 shall be determined in accordance with equity and the substantial merits of the case.[45]In capability dismissals based on an employee’s ill-health, in Spencer v Paragon Wallpapers Ltd 1977 ICR 301 EAT are the nature of the illness, the likely length illness and the need for the respondent to ensure the claimant’s work is done. As to whether the respondent’s procedure is fair, according to S v Dundee City Council 2014 IRLR 131, Ct Sess (Inner House), the relevant factors include the employee’s views, the size of the organisation and whether it was reasonable to use temporary staff and to wait any longer before dismissing on the grounds of ill-health. CONCLUSIONS ON THE ISSUES[46]I have applied the above law to the findings of fact that I have made in order to answer the questions raised in the agreed list of issues dated 5th November 2024 insofar as they relate to the claim for unfair dismissal. My conclusions on those issues are set out below. In doing so I have taken into account the parties’ evidence, arguments and submissions. Was the Claimant dismissed for a potentially fair reason?[47]The Respondent’s case is that it relies upon the potentially fair reason of Capability (Ill Health). It further relies on the claimant’s substantive role requiring completion of the SLTP – team skills training, yet occupational health advised the claimant could not complete the training. It applied the redeployment provisions within its job protection policy, but the claimant was unable to secure an alternative post during the redeployment period. It argues the posts she applied for all required SLTP team skills training, which the claimant could not complete. Therefore, in accordance with that policy, when the 12-week redeployment ended, the claimant’s dismissal took effect.[48]The claimant complains that Mr Aboagye was recruited into a post was intended for her to be redeployed into. Although in her amended witness statement she does not expressly state this was a reason for her dismissal. Therefore, Mr Aboagye’s recruitment does not appear to be relied on by the claimant as an ulterior motive for her dismissal, as these arguments are dealt with below, when considering the fairness (as opposed to the reason for) of the dismissal.[49]Therefore the parties accept that where the (genuine) reason for dismissal is incapability, that is a potentially fair reason. In any event, it’s clear from the express wording at section 98(2)(a), cited at paragraph 43 above, that incapability is a potentially fair reason. In the event that there is a dispute between the parties on this point, I find that it is a potentially fair reason having regard to section 98(2)(a). Was the procedure adopted by the Respondent fair and reasonable in all the circumstances?[50]In considering whether or not the respondent’s procedure was fair and reasonable, I have taken the following matters into account:50.1 Whether the respondent adequately consulted the claimant;50.2 Whether the respondent carried out a reasonable investigation, including finding out about the up-to-date medical position; and50.3 Whether the respondent could reasonably be expected to wait longer before dismissing the claimant.[51]Firstly as to whether the claimant was adequately consulted: I find that she was. Following the meeting in November 2022 between Ms Brennan, Mr Opoku and Ms Lee, the claimant was invited to attend a meeting on 21st December 2022. At that meeting different options were discussed, including medical retirement or redeployment. When they met with the claimant again on 9th March 2023 redeployment was agreed on. Therefore, I find that the respondent consulted the claimant regarding redeployment, and she agreed with redeployment, and she preferred that to medical retirement which had also been discussed, but which she rejected.[52]Secondly, whether the respondent carried out an adequate investigate: again I find that it did. When the claimant returned to work in April 2021 the respondent sought occupational health advice. Although it did not obtain any further advice until September 2022, that is because the claimant was temporarily assigned to a post that was in accordance with the medical advice. Crucially, the respondent obtained advice in September 2022, before the review meeting in November 2022, and before redeployment was discussed informally with the claimant in December 2022. Ms Brennan’s unchallenged evidence is that at the start of the meeting on 9th March 2023 the claimant confirmed she was still unable to undertake the relevant SLTP.[53]I have already found that it was the respondent’s April 2018 job replacement policy that applied. In my judgement, the respondent adhered to that policy by allocating Ms Brennan as the manager to deal with the claimant’s redeployment, by holding a redeployment meeting, by notifying the claimant about vacancies through its Trac system before they were generally advertised, by advising the claimant during that meeting about how the system would work, and by holding a further meeting on 8th June 2023. I have also found that the respondent adequately advised and supported the claimant during the redeployment period.[54]As to whether or not the respondent could reasonably be expected to wait longer before dismissing the claimant: I find that it could not. The claimant returned to work after surgery on her shoulder in April 2021, when she was allocated administrative duties, and never returned to her substantive role. Redeployment was first raised with the claimant during the meeting on 21st December 2022, which is over 1½ years after she returned to work on administrative duties in April 2021. There was a period of over two months before the claimant’s review meeting on 9th March 2023, followed by a further pause, before she was given written notification that the 12-week redeployment period began on 27th March 2023, being over three months since redeployment was first discussed. The claimant was given the full 12- week redeployment period in accordance with the policy in force at that time. By the date of her dismissal, I consider a reasonable period had elapsed since November 2020 when she was last able to perform her substantive role. It had also been almost 3 years since her training in physical restraint had expired in July 2020. I therefore consider it would not be reasonable to have expected the respondent to wait any longer. Also taking into account that at the time her dismissal took effect, the claimant was still unable to undertake the relevant SLTP training, and it was not known when or whether she would be able to do so in the future. If the dismissal was procedurally unfair, would the Claimant have been dismissed in any event?[55]As stated above, I find the procedure was fair (and reasonable), accordingly, this issue does not require determination. Was the Claimant’s dismissal within the range of reasonable responses of a reasonable employer?[56]Dealing firstly with the claimant’s contention that she should have been swapped into a post that was suitable for her. This does not appear to have been suggested by her or union representative during the redeployment period. Both Dr Gordon and Ms Brennan stated during their cross examination that the respondent must act reasonably in relation to all its employees, and it would not be reasonable to one employee if they were swapped out of their role so that the claimant could be redeployed into their role.[57]In any event, it is not part of the respondent’s job protection policy to carry out this type of swap. Accordingly, irrespective of the claimant’s long service, I do not consider it is outside the range of reasonable responses that no swap was arranged.[58]As to Mr Aboagye being swapped into the role that was intended for the clamant, there is no sufficient evidence to support that allegation. Mr Aboagye was recruited as a band 3 health care assistant and required the SLTP – team skills training, which he undertook. The claimant would not have been redeployed into a role that requires that training because she was incapable of completing the training due to her shoulder injury.[59]Therefore, irrespective of whether Mr Aboagye may be related to Mr Opoku, and I accept Mr Opoku’s evidence that they are not related, I do not consider Mr Aboagye being recruited as a band 3 health care assistant had any impact on the claimant’s failure to secure another post.[60]It is common ground that the claimant’s substantive position as a band 3 healthcare assistant requires the SLTP team skills training. It is also common ground that due to her shoulder injury, occupational health advised against the claimant completing this training because it concluded her injury is chronic, possibly progressive, and could not foresee when she ay be able to complete the training.[61]In my judgment, that is a significant factor weighing in favour of the decision to dismiss being one that was within the range of reasonable responses. It is difficult to envisage circumstances where it is unreasonable for an employer to dismiss an employee because the employee is unable to meet a mandatory requirement.[62]The claimant argued that she is aware of others who are in posts requiring this training, but where they do not have it. However, Ms Brennan’s enquiries have explained the circumstances of those individuals, namely that they are temporarily unable to complete the SLTP. The claimant has not challenged Ms Brennan’s evidence that any individuals in that situation are only temporarily unable to complete the training. Therefore, I do not consider their quite different circumstances make it unreasonable for the respondent to dismiss the claimant on incapability grounds.[63]In my judgment, even if the claimant is able to cooperate with colleagues restraining a patient by holding the patient’s head, I consider it was reasonable for the respondent to not adopt that approach. I find that could lead to an unsafe working environment. Firstly, based on the occupational health advice, it would not be appropriate for the claimant to undertake the training. Secondly, it would not be safe for the claimant to participate in restraining a patient without taking the training. Thirdly, if the claimant participated in restraining a patient without the relevant training, and with a chronic shoulder injury there is some risk that she may be unable to restrain the patient in accordance with accepted practice. If the patient requires physical restraint but the claimant’s ability to participate is impaired for these reasons, that would put the claimant, her colleagues, and potentially the patient, at risk.[64]I have taken into account the claimant’s evidence that the preferred course is to deescalate a situation so that physical restraint is not required. However, that does not negate the need to undertake the training because, there is no guarantee that de-escalation will work. As the claimant accepted in her oral evidence, situations on the ward can be unpredictable. Furthermore, her physical injury was sustained when she intervened between two patients. This demonstrates how, rare though it may be, situations can escalate which can put employees at risk of injury. This underlines the importance of having staff that can undergo the proper training and who are capable of carrying out the physical requirements of the role.
CONCLUSION
[65]For the reasons set out at paragraphs 47 to 64 above, the claim for unfair dismissal is dismissed.[1]On 9th October 2025 the Claimant e-mailed the Tribunal with a request for reconsideration, which was forwarded to me on 13th October 2025. The request for a reconsideration was in respect of the judgment announced orally on 27th August 2025 at the end of the final hearing.[2]Following the final hearing, the Claimant requested written reasons, therefore the judgment and written reasons, which are dated 22nd September 2025, were sent to the parties on 25th September 2025.[3]The Claimant’s request for reconsideration is refused, and the Tribunal’s judgment dated 22nd September 2025 is confirmed.[4]There is no reasonable prospect of the original decision being varied or revoked for the reasons set out below. BACKGROUND[5]The paragraphs in the request for reconsideration are not numbered. I have endeavoured to identify below which paragraphs of the request I am dealing with.[6]The background to the claim is set out at paragraphs 19 to 41 of the Written Reasons, and is summarised below based on the findings of fact made and/or any agreed or unchallenged facts.[7]The claimant started working for the respondent on 3 December 2000 as a band 3 health care assistant, requiring annual PSTS training (now called SLTP – team skills training), which includes physical restraint techniques. On 29 April 2017, the claimant sustained a shoulder injury causing ongoing symptoms until 2020. Her SLTP – team skills training (“SLTP training”) expired in July 2020, and she underwent shoulder surgery in November 2020, returning to work in April 2021.[8]On her return to work, occupational health advised the Respondent that the Claimant should avoid SLTP duties for 3 months. Therefore, the claimant was temporarily assigned as a receptionist at Bridge House. By August 2022, the Bridge House reception was closing. In September 2022 a further occupational health assessment reported the Claimant’s injury was chronic, possibly progressive, that she could not perform SLTP duties and they could not foresee when she may be able to complete the training.[9]In November 2022, managers and HR discussed the options available under the Respondent’s April 2018 Job Protection Policy. And on 21 December 2022, at sickness review meeting attended by the Claimant, Ms Brennan, Ms Allan and Mr Opoku, they considered redeployment and medical retirement; the Claimant opposed the latter.[10]On 9 March 2023, it was agreed with the Claimant that the Respondent would proceed with medical redeployment. At a further meeting on 27th March 2023, the claimant was informed of a 12-week redeployment period, starting 27 March 2023 to 18 June 2023. The Claimant was informed how the redeployment process worked, how vacancies would be notified to her, how she would be prioritised. She was also informed that if she did not obtain employment within the redeployment period, her employment with the Respondent would be terminated.[11]The claimant applied for 4 positions (3 internal, 1 external) during the redeployment period but was unsuccessful. She was therefore dismissed with effect from 18th June 2023 on capability grounds due to ill health.[12]On 26th June 2023 the claimant appealed against her dismissal. The appeal hearing took place on 22nd January 2024, which upheld the claimant’s dismissal on the grounds of incapability; that decision is dated 23rd February 2024.[13]Early conciliation started on 17th September 2023 and ended on 29th October 2023. The claim and accompanying particulars of complaint were presented to the Tribunal on 28th November 2023.[14]The claim initially included complaints of unfair dismissal and a failure to make reasonable adjustments. However, following a public preliminary hearing on 14th February 2025 Employment Judge Sudra found that the claimant was not disabled. Accordingly, the matter proceeded as a claim for unfair dismissal only.[15]The final hearing took place on 26th and 27th August 2025.[16]At the end of the final hearing, I concluded the dismissal was fair for the following reasons:16.1 The Respondent had adequately consulted the Claimant during meetings held in December 2022 and March 2023, taking into account that she did not want medical retirement. The decision on redeployment was taken during a meeting on 27th March 2023 when the Claimant confirmed she was still unable to undertake the relevant SLTP training.16.2 The Respondent carried out adequate investigations by obtaining advice from occupational health when the Claimant returned to work in April 2021 and when the Claimant’s temporary assignment as a receptionist was ending.16.3 The Respondent followed its April 2018 job replacement policy by allocating a manager of appropriate seniority to deal with the redeployment, and the meetings with the Claimant and the advice given during those meetings about the redeployment process as set out in the policy.16.4 In the circumstances, I also consider the Claimant was adequately supported, including during the redeployment process.16.5 I found the Respondent could not reasonably be expected to wait longer before dismissing the Claimant. She had not fulfilled her substantive role since November 2020, and almost 3 years later there was no indication of when the Claimant may be able to do the mandatory training required to fulfil her role. The Claimant was also given the full 12-week redeployment period to try to find alternative employment.16.6 It would not have been reasonable to arrange for the Respondent to swap the Claimant into another role as she contended for; that would have been contrary to the redeployment policy, and unfair on the member of staff required to swap.16.7 I did not consider Mr Aboagye and Mr Opoku were related, or that Mr Opoku was involved in Mr Aboagye’s recruitment. Nor was he placed in a role that the Claimant could have carried out because Mr Aboagye was recruited as a band 3 health care assistant and required the SLTP – team skills training, which the Claimant cannot undertake. Although Mr Aboagye did not have current SLTP training at the point he was recruited, Ms Brennan explained that was due to the cost, which an employer would ordinarily meet. Therefore, it was not uncommon for someone to be employed without the current training provided they had the potential to complete the training. His training record in the bundle establishes that he had undertaken the training by July 2023.16.8 The Claimant states she was able to assist colleagues with some aspects of patient restraint. However, I found that even if that were the case, it would be unreasonable for her to do so without appropriate training as that was a mandatory requirement of the role, and occupational health advised against her undertaking the training. The Claimant states she had been due to complete training at the end of June 2023 did not train in patient restraint techniques.16.9 As part of the appeal process Ms Brennan’s enquiries showed that where other employees may not have current SLTP training, that was due to being temporarily unable to complete it. Additionally, those individuals were on larger wards where there would still be at least the required minimum of 3 members of appropriately-trained staff on duty who could employ patient restraint if required.16.10 While the need for patient restraint was a rare and last resort, it was common ground that it was difficult to predict when a situation may escalate. It would therefore be difficult to anticipate when the techniques may need to be employed.16.11 As to whether the Respondent could be expected to wait any longer, I concluded it could not reasonably be expected to wait any longer because, the Claimant had not fulfilled her substantive role since November 2020, and almost two years later in September 2022, occupational health advised it could not foresee when the Claimant may be able to undertaken the mandatory training. Contrary to the Claimant’s submission, she did have a medical condition that prevented her from completing mandatory training required for the role. RECONSIDERATION[17]On page 1 of the request for reconsideration, the Claimant argues the Written Reasons referenced subsection 98(2) but not sections 98(3) or 98(4). Subsections 98(3)(a) and 98(3)(b) are quoted, followed by an assertion that the Claimant met the requirements therein.[18]Subsection 98(3)(b) does not apply in this case: the Claimant was not dismissed on the grounds that she lacked any relevant qualification. The Claimant was dismissed on the grounds of ill health incapability. The factors at subsection 98(3)(a) that may constitute incapability are disjunctive. Therefore, even though the Claimant’s skill and aptitude was not disputed, the her ill health, specifically her shoulder injury, meant she was incapable of completing mandatory training required for the role, consequently she was incapable of carrying out the job.[19]The final paragraph on page 1 of the request for reconsideration, stated that “the Claimant was able to carry out her substantive role as band 3 health care assistant.” However, the next sentence acknowledges there were limitations, it states: She was active and healthily available to [fulfill] every meaningful requirement of skill, aptitude, health or any other physical or mental quality except for the physical restraint element; which the Respondent confirmed were a rare and uncommon work requirements, less relevant enough that the Respondent allowed other employee[s] to continue working without the same SLTP training.[20]These arguments were already addressed in the original decision as follows:[21]The Written Reasons refers to the fact that the Claimant’s incapability is not based on a lack of skill, or aptitude (see paragraph 31 of the Written Reasons).[22]The Claimant’s acknowledged inability to employ physical restraint is the basis for finding her incapable of fulfilling the role. Completing the relevant annual training was a mandatory requirement of the role, which the Claimant could not fulfill (see paragraphs 60 to 61 of the Written Reasons).[23]The different circumstances of others who worked in similar roles without the SLTP training is also dealt with and explained (see paragraphs 33 and 62 of the Written Reasons).[24]The first paragraph on page 2 distinguishes the cases of Spencer v Paragon Wallpapers Ltd 1977 ICR 301 EAT and S v Dundee City Council 2014 IRLR 131 Ct Sess (Inner House) because the employees in these cases were on sick leave, whereas it’s argued the Claimant in this case was not.[25]It was accepted between the parties that the Claimant was not on sick leave.[26]The relevance of these cases are the guidance and general principles they provide. For instance, Spencer v Paragon sets out the factors which should be applied in all cases, it is not the specific facts of the case that are significant. The judgment concludes: The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer? Every case will be different, depending upon the circumstances.[27]This is a binding authority from the Employment Appeal Tribunal, which should be applied in all cases, it was therefore appropriate to apply it in this case.[28]That is also the position with S v Dundee City Council, namely that it is the principles the case sets out that are most relevant. In this instance it was the factors that are relevant to determine whether a fair procedure has been followed in cases of dismissal on capability grounds due to ill health. Those factors are:28.1 Whether the employee has been consulted;28.2 Whether there has been sufficient investigation; and28.3 Considering other employment options, for instance alternative employment in a different role.[29]The principles in Spencer v Paragon and S v Dundee CC were applied in reaching the decision in this case, and that is why they were cited and relevant.[30]In the second half of page 2, from the heading “SECTION 98 (4) ERA 1996” and onwards, the Claimant argues whether an employer acted reasonably should be taken into account having regard to the employer’s size and resources. The request for reconsideration continues by referring to the Respondent as a large scale employer with substantial administrative and human resources “to allow redeployments so that the Claimant can be absorbed within its department/wards." The Claimant argues she should have been employed in a larger ward where there would have been sufficient other staff to ensure the minimum requirement of 3 SLTP trained staff were on duty could be met.[31]These issues were considered in the Written Reasons.[32]As to the Claimant being employed in a larger ward, the redeployment policy enabled her to decide on which positions she would apply for. However, the fact remains that the clinical roles would require her to have SLTP training, irrespective of the size of the ward she was working in. That some others did not have current SLTP training could be accommodated where the were in larger wards, but as stated, those individuals were temporarily unable to undertake the training. In the Claimant’s case, she had been unable to undertake the training since she returned to work in April 2021, her condition was chronic and possibly progressive. Therefore, the Claimant’s situation was materially different (see paragraph 33 of the Written Reasons).[33]The same point is continued in the first half of page 3, arguing that others were treated favourably compared to the Claimant. This point has been addressed.[34]As to the e-mail at page 712, Ms Brennan was asked about this during cross examination. Her response was that the e-mail referred to individuals who were “recently” unable to employ physical restraints, which from her enquiries, Ms Brennan understood were individuals who were temporarily unable to do so (also at paragraph 33 of the Written Reasons).[35]Therefore, while on page 3 of the request for reconsideration, it continues by relying on the SLTP training the Claimant planned to attend at the end of June 2023, it was common ground that training did not deal with patient restraint. Therefore, even with this training, the Claimant’s prognosis was at best uncertain, whereas it was envisaged the situation would be temporary with other members of staff who were unable to complete the patient restraint element of the SLTP training.[36]The second half of page 3 deals with Mr Aboagye’s employment, and raises matters previously argued at the final hearing, and addressed in the Written Reasons at paragraphs 37 to 40, 48, and 58 to 59. In particular, Mr Aboagye was employed in a role which required SLTP patient restrain training. Therefore, contrary to the assertion made, it would have been inappropriate to offer the Claimant this role.[37]That Mr Aboagye did not have the training at the time he was recruited, was dealt with in the Written Reasons (see paragraph 40). Although the first paragraph on page 4 of the request for reconsideration argues there was no conclusive evidence that Mr Aboagye had completed the SLTP training, I concluded the computerized training records provided was sufficient to establish he had completed the training (see paragraph 40 of the Written Reasons).[38]Therefore, irrespective of their relative experience in the band 3 health care assistant role, it was reasonable that the Respondent followed occupational health advice that the Claimant was unable to undertake the relevant SLTP patient restraint training, while recruiting Mr Aboagye, because that was a mandatory requirement of the role.[39]As to the prayer:39.1 Paragraph 1: it is common ground that the Claimant’s shoulder injury was sustained while working for the Respondent. While that is unfortunate, it is not directly relevant to the legal test of whether or not she was unfairly dismissed.39.2 Paragraph 2: is also not directly relevant. Although it is noted the Respondent raised the option of medical retirement, it was the Claimant who declined this option.39.3 Paragraph 3: he Claimant’s undisputed work record is referred to in the Written Reasons (see paragraph 31). While such factors may be relevant in some cases, such as a misconduct dismissal, it is not directly relevant in this case.39.4 This point was addressed in the Written Reasons, and is also addressed above.39.5 Paragraph 5 has also already been addressed. I found that Mr Opoku and Mr Aboagye were not related, that Mr Opkoku was not involved in Mr Aboagye’s recruitment, and the role the latter was recruited into was not suitable for the Claimant because it requires SLTP training. Again, Mr Aboagye’s SLPT training on recruitment was addressed in the Written Reasons (see paragraphs 37 to 40, 48 and 58 to 59), and also at paragraph 16.7 above.
CONCLUSION
[40]After having considered the arguments raised on behalf of the Claimant, for the reasons stated above, I have concluded these do not disclose any arguments that have a reasonable prospect of successfully establishing that it is necessary and in the interests of justice to reconsider the judgment.[41]Accordingly, these points fail to pass the sift stage at rule 70(2). Approved by:
The Law
[42]A limited amount of time was spent at the end of the first day arranging delivery of a hard copy of the bundle to the Claimant. This did not contribute materially to the time taken to complete the final hearing.[43]Nevertheless, while I was critical of some aspects of the Claimant’s representative conduct, I do not consider the above behaviour meets the high threshold of being improper, unreasonable or negligent.[44]One criticism warrants closer consideration. During closing submissions, the Claimant’s representative appeared to suggest the Claimant had informed the Respondent she was able to complete the mandatory SLPT - Teams training. Following submissions, I asked him to identify where this was addressed in either the witness statements or the bundle. Instead of referring to the documents, he began to explain what the Claimant had said during a conference with his firm. As he was about to give evidence, and disclose privileged material, I asked him to stop. When I asked the question again, this produced the same result: an attempt by him to rely on privileged discussions. The Claimant’s representative appeared irritated by my interruption, stating he was merely answering my question. However, that was not the case: I asked him specifically to identify documentary or witness evidence, not to disclose privileged communications.[45]Even after I explained in very clear terms to the Claimant’s representative that it was not appropriate for him to waive the Claimant’s privilege, he did not appear to understand the implications of what he had attempted to do. This caused me considerable concern. The Respondent is criticised for failing to “evince” the privileged material being referred to. I consider that criticism to be unjustified. There was no disclosure of privileged information because I prevented the Claimant’s representative from disclosing it. That is why the Respondent could not provide evidence of it.[46]In my judgment, this is cause for concern. I accept that a representative may inadvertently disclose privileged information. However, in this case the Claimant’s representative was deliberately seeking to provide the information, and continued to do so even after being instructed he must not do so. This was not therefore an inadvertent disclosure.[47]During the hearing I referred to the Claimant’s representative as a solicitor, and he did not correct me when I did so. However, I now understand that he is employed as a caseworker, which may explain some of the conduct outlined above. When deciding whether conduct is improper, unreasonable or negligent, the fee earner’s level of experience may be relevant (see Mr J Francois v Castle Rock Properties LTD T/A Electric Ballroom UKEAT/0260/10/SM paragraph 29). By analogy, a caseworker should not necessarily be expected to conduct a case in the same manner as a solicitor. For that reason, I do not consider that the Claimant’s representative’s conduct amounts to improper, unreasonable or negligent behaviour. Stage Two - If so, did such conduct cause the applicant to incur unnecessary costs or incur costs that it would be unreasonable to incur?[48]If I am wrong in my conclusion regarding the Claimant’s representative’s behavior, I nevertheless consider that the issues raised by him at the hearing on 26th and 27th August 2025 did not play any material part in the hearing lasting two days rather than one.[49]The trial had been listed for two days, reflecting the Tribunal and the parties’ view of the appropriate time estimate.[50]Although some time was spent dealing with the issues raised by the Claimant’s representative, I consider the hearing would not have been completed in one day even without that The first day of the hearing began at around 10.15am, included a lunch break from 1.30pm to 2.30pm, and finished at around 3.45pm. The hearing resumed at 9.00am the next day, with a break from 12.45pm to 2.45pm for lunch and deliberations, before judgment was announced at 2.45pm. After delivering judgment and dealing with directions for costs and other matters, the hearing finished at 4.15pm.[51]Based on these timings, I find that even without the time spent dealing with the issues raised by the Claimant’s representative, it would not have been possible to deal with the final hearing in one day, contrary to the Respondent’s assertion. Stage Three - If so, is it just to order the representative to pay some or all of the relevant costs?[52]For the reasons set out above, I find that the Claimant’s representative did not act improperly, unreasonably or negligently, and that the issues raised by him did not cause the hearing to last two days. Therefore, it would not be just to make a wasted costs order against the Claimant’s representative. Approved by: