S Cadwallader v Greater Manchester Mental Health NHS Foundation Trust: 2400168/2024
EMPLOYMENT TRIBUNALS
Case No 2400168/2024
Between
S CadwalladerClaimantGreater Manchester Mental Health NHS Foundation TrustRespondent
Before
Employment Judge ClineIn person for claimantMr Gareth Price (instructed by counsel) for respondentDate 30 June 2025
REASONS
[1]This matter was heard over 5 days and an oral decision was delivered at its conclusion; written reasons were requested by the Claimant by email on 27th June 2025, which was the final day of the hearing. Any references to specific pages of the agreed hearing bundle herein will be by way of square brackets, for example [220] or [34-54].[2]By way of her ET1 claim form and particulars of claim received by the Tribunal on 12th January 2024 [13-29], the Claimant, Ms Sarah Cadwallader, brought claims under the Equality Act 2010 (“the 2010 Act”) in respect of a failure to make reasonable adjustments for a disability and also a claim for whistleblowing detriment under the Employment Rights Act 1996. The claim for whistleblowing detriment was withdrawn by the Claimant on the morning of the fourth day of the hearing and a judgment dismissing on withdrawal was promulgated; this claim will therefore not be considered any further herein.[3]The Claimant represented herself during the course of this remote hearing and, in light of her disability, we took regular breaks which we hope assisted her in participating as comfortably as possible in the proceedings. The Respondent was represented by Mr Price of counsel. We thank both the Claimant and Mr Price for their pragmatic, measured and succinct approach to the case. It had been decided prior to the hearing that, given the amount of evidence to be heard and the size of the agreed hearing bundle (which ran to 1351 pages), only matters relating to liability would be considered initially, with any relevant questions of remedy left to be dealt with thereafter. We emphasised to the parties that, given the size of the bundle, it should not be assumed that we would be aware of, or would take into account, any document to which we were not referred during the course of the hearing.[4]In addition to the agreed hearing bundle, we received witness statements from the following witnesses and heard oral evidence from them during the course of the hearing:a. The Claimant, Ms Cadwallader, dated 9th May 2025;b. Dr Mark Bowers, dated 20th March 2025;c. Dr Padraig McDonnell, dated 18th March 2025; andd. Dr Rebecca Hughes, dated 6th May 2025.
the hearing:
[5]The claim was originally brought against both the Respondent Trust and the University of Manchester (“the University”); however, at a case management hearing before Employment Judge Cowx on 23rd July 2024 [83-96], various decisions were taken which effectively ended the involvement of the University and left the Respondent Trust as the sole respondent to the claim.[6]Very little of the factual background was in dispute between the parties but, where they were not agreed and we were required to make findings, we did so on the balance of probabilities and have set out, to the extent we consider to be required, how we came to those findings. For the avoidance of doubt, we did not find any of the witnesses to have been dishonest or intentionally misleading; we were conscious throughout of the inevitable frailties of human memory and that we were dealing with matters which took place some time ago and which we had to examine in some detail in order to deal justly with the case. When deciding which findings of fact we were required to make, we had regard to the agreed list of issues, which we used to guide us to our various decisions and is (insofar as is relevant) reproduced as an annex to these reasons.[7]The claim for failure to make reasonable adjustments, which was denied, relates to the Claimant’s role as a trainee clinical psychologist undertaking a course which was, in basic lay terms, a combination of a doctorate and a structured clinical training course (including placements) towards a recognised NHS qualification. This involved, in the Claimant’s case, what was described as a triumvirate of the Respondent Trust, the University and NHS England. Disability[8]It was agreed between the parties that the Claimant is disabled for the purposes of the 2010 Act as a result of ulcerative colitis which led to the need for an ileostomy procedure in 2018 and a resultant stoma, over which is a pouch for the disposal of bodily waste. The presence of this disability and their knowledge of it throughout the relevant period was not disputed by the Respondent as the Claimant informed them of it prior to her commencing her course; as such, and also to spare the Claimant from a detailed discussion of what is a condition which we know has caused her great distress, we simply note that we had in mind throughout the hearing the letter from the Claimant’s stoma nurse dated 25th November 2020 [123] which sets out the nature and impact (both physical and mental) of her condition on the Claimant and also read the various occupational health reports in the bundle and heard from the Claimant herself how her condition impacts on her daily life. Findings of Fact and Chronology[9]The Claimant commenced her employment on 20th September 2022; she had already been working as a counsellor, having obtained an MSc from Chester University whilst working part-time as a therapist. Prior to commencing in her role, the Claimant filled out an online form which led to an internal employer suitability screening report dated 13th July 2022 [1309]; this report said that, although the Claimant is “unlikely to be covered under the relevant Equality Legislation” and “[a]t this time no adjustments to the working environment are required for this candidate”, she had “declared a longterm health condition that will require possible adjustments, therefore you need to discuss this further with this employee”. In light of this background, the Claimant was declared to be “Suitable with Adjustments” and there was a meeting between her and Dr Mark Bowers, one of the Respondent’s three senior professional leads supporting the Trust with the doctorate programme for trainee clinical psychologists and was, in effect, allocated to support the Claimant at that stage. At that meeting on 22nd July, there was a conversation about the Claimant’s health conditions and what adjustments may be needed; Dr Bowers’ note of that discussion, insofar as is relevant, says as follows [1300]: Sarah explained that she has ulcerative colitis and has a stoma. She generally manages this well but has occasional leaks. She has managed without long admissions to hospital. She has a blue badge and doesn’t risk public transport owing to the possible leaks. She is going to be living in the Oswaldtwistle, Accrington area of the North while training. She had an immune response reaction to covid vaccine, therefore, advised not to have any further vaccinations. She has had covid and managed this. She occasionally has disturbed sleep. Adaptations required: Will require access to parking near the university base for lecture days, has blue badge. She may require some adjustment to working hours, especially following disturbed sleep. She would request that we try to limit travel time where possible, therefore, placements in Accrington area would be appreciated (Rochdale, Oldham, Blackburn, Burnley). Will need tutor to be aware of health issues and check in regularly. Happy for info to be shared with tutor team. The Bolton Placement[10]Following this meeting, on 25th July 2022, Dr Bowers sent an email [1054] to various colleagues, including Dr Lara Bennett, the clinical lead at the University, attaching the Claimant’s “health information” and saying that “[t]here is a need to consider making some adaptations to work for this person”. On 31st October (after approximately a month of University-based study), the Claimant commenced her first placement at the Rivington Unit, part of the in-patient psychology service at the Royal Bolton Hospital. The Claimant accepted during the hearing that there were “toilets galore” there because it was an in-patient site and that her start time was put back by 30 minutes to allow for the possibility of disturbed sleep but, soon after the start of this placement, she expressed dissatisfaction with a number of issues, including the lack of availability of disabled parking at the unit. As a result of the Claimant’s concerns, there was a video meeting on 21st November 2022 between the Claimant, Dr Bowers and Dr Katie Niemz (one of the University’s clinical tutors and, in effect, the Claimant’s line manager there), the notes of which [131-2] reveal a discussion about the Claimant’s needs and, specifically, a note that there needs to be access to disabled parking.[11]Following this meeting, a referral was made by Dr Bowers to PAM Occupational Health and the resultant report, drafted following a telephone consultation with the Claimant, is dated 14th December 2022 [153]. In this report, the nature and some of the practical consequences of the Claimant’s disability are outlined and it says that, although a specific assessment of whether or not the definition of disability within the 2010 Act has not been requested (but should continue to be considered), reasonable adjustments are recommended in respect of remote working when unable to drive and the use of disabled parking as well as “ongoing easy access to bathroom and changing facilities”. On the same date (14th December), the Claimant emailed Dr Bowers [156] to say that she had decided not to go to the University that day because of train strikes and because “parking can not be guaranteed” as she “did not want to risk a two hour plus round trip if [she] was unable to park sufficiently close to uni”. At the end of that email, she asked Dr Bowers to “resend” the email address for Trust parking so she can “email to see if disabled parking is monitored/ask if it will be monitored”. Dr Bowers replied approximately 40 minutes later [156] with the email address for parking at Bolton and asked: “Please would you share information as to how the parking situation is arranged at the university? I understood that they had committed to ensuring reserved parking spaces for disabled people would be available.” In cross-examination, the Claimant agreed that, although she had been given this email address by Dr Bowers, she never sent a message as, when the issue was “passed back” to her, she “gave up” because of her “mental and physical health”.[12]On 16th December 2022, the Claimant sent an email to Dr Bowers asking for a copy of her occupational health report and says that there needs to be a swift change with the University in respect of her reasonable adjustments as it is “affecting [her] mental and physical health to the point of feeling like [she] might have to drop out”, which she really does not want to do. The Claimant also notes that she is “pursuing a formal complaint at the uni and may yet pursue a legal one” as she has evidence that other students have been allowed to work remotely when she has not been. In response, on the same day [169], Dr Bowers sent the Claimant a copy of the occupational health report, asked for her permission to share it with the University tutor (which was given) and suggested meeting to “review the assessment and plan next steps”. As part of the same chain [167], Dr Bowers asked to be kept informed about any action that the Claimant takes.[13]In line with Dr Bowers’ suggestion, a meeting took place on 9th January 2023 (presumably being noted mistakenly in the heading as 2022) [174-5] attended by a number of people including Dr Bowers, Dr Niemz, Dr Claire Fothergill and Dr Lara Bennett (joint clinical directors) and Alison Hassett from DASS (the University’s Disability Advisory Support Service). The Claimant did not attend and it is notable (as agreed by the Claimant in cross-examination) that everyone who attended the meeting, save for Dr Bowers, was an employee of the University. At that meeting, a number of issues raised by the Claimant were discussed, including remote working, whether or not there needs to be a formal disability assessment and access to a disabled students allowance, “e.g. to fund taxi if there are difficulties with parking”. In the context of the allowance, it was “acknowledged that the issues regarding access to disabled parking has not been adequately addressed/resolved” and one of the agreed actions was that DASS would “raise issues re disabled parking access” and also discuss with the Claimant “about how these issues can be reported”. Performance Concerns[14]Matters then moved on in that, towards the end of January 2023, issues were raised about reported deficiencies in the Claimant’s conduct in relation to patient safety, information governance and confidentiality breaches. A letter from Dr Bowers to the Claimant dated 26th January [228-9] confirmed that they, together with Dr Niemz, had a video meeting that day to “discuss issues relating to your clinical placement at the Rivington Unit and your wellbeing”. Dr Bowers noted that there had been a request from the head of department at the Rivington Unit to pause the Claimant’s placement due to several safety incidents and that a fact- finding process would be commenced once the reports had been completed. It was also noted by Dr Bowers that the Claimant had advised the meeting of the “ongoing stress related to [her] view that [her] disability needs are not being met despite having had to report [her] difficulties to numerous people” and “ongoing issues relating to the provision of blue badge parking” amongst other matters including the question of remote working; the Claimant had commented that “this process has a time and energy cost and that [she] felt unsupported, resulting in exhaustion and a sense of powerlessness”, although denied any current suicidal thinking when asked.[15]In February 2023, Dr Bowers was due to go on annual leave for 2 weeks so he handed matters relating to the Claimant to his colleague Dr Padraig McDonnell, a clinical psychologist and professional lead for psychology at the Respondent Trust who also supported trainee clinical psychologists on the doctorate programme alongside Dr Bowers and Dr Rebecca Hughes. In an email to the Claimant on 3rd February [234-5], Dr Bowers said that he was going to be on leave so she should contact Dr McDonnell if she needs any further support while he is away. Dr Bowers’ email was sent in response to the Claimant’s on the previous day [235-6] in which she said that she was “finally drafting [her] formal complaint” after DASS had “confirmed that they will not make reasonable adjustments which the university deems inconvenient” and that “there is no current improvement on the disabled parking situation at the university, which is inexcusable that it is not monitored”. The Claimant also asserted that the processes for requesting adjustments are very unclear to her and, in effect, are too complicated and involve too many different people.[16]On 22nd February 2023, the Claimant emailed Dr Bowers and Dr McDonnell [279- 280] to say that she had received an email telling her that she will face a University concerns panel with a possible referral to the faculty fitness to practice panel, which is very concerning for her; she also says that she has now filed a formal complaint regarding her allegations of disability discrimination against the University. The next day, Dr McDonnell replied to the Claimant [278-9], initially noting that she had been signed off work and university studies by her GP for a month until 14th March. Dr McDonnell notes that he has referred the Claimant to the Respondent’s occupational health team again (with an appointment arranged for 3rd March) and is “concerned that we are contacting you at a time when you are not well and you indicated you were under crisis support daily”. Nonetheless, he reiterates that the fact-finding process will have to take its course given the serious concerns raised (and apologies for the delay) and notes that, although the Respondent Trust works “in partnership” with the University, there are “separate processes governing both organisations and we do not share joint policies and procedures”. The Improving Performance Plan (“IPP”) Process[17]The outcome of the University’s fact-finding process was sent to the Claimant by way of a letter dated 6th March 2023 [305-8] and, in summary without setting out the entirety of that letter, it was found that there were a number of concerns in relation to confidentiality, accurate and timely record-keeping, risk-management, interpersonal behaviour and communication, not acknowledging feedback or errors and not being open and honest when things go wrong. Rather than dealing with these concerns as disciplinary issues at this stage, it had been decided that they should be approached as performance issues and would be addressed under an Improving Performance Plan (“IPP”), to be discussed once the Claimant has returned from sick leave.[18]At almost the same time as the fact-finding outcome, the occupational health report dated 14th March 2023 was provided [320] following a telephone consultation on the same date. The report summarised the Claimant’s ongoing sickness leave on grounds of stress arising from her placement and her reporting of her difficulties relating to her disability and accessible parking; at this stage, the Claimant was taking medication for her mental health and accessing counselling services. The author notes “mild levels of depression and no levels of anxiety” and suggests that her improvement is due to the Claimant “being proactive in accessing psychological intervention, engaging with the crisis team and adopting self-management strategies” such that her health and wellbeing is currently “well controlled” but “her long term health condition will require ongoing management”. The Claimant is considered fit for work but the author recommends a stress risk assessment and reiterates the adjustments suggested in the previous report of 14th December 2022 in relation to remote working and access to disabled parking.[19]In order to commence the IPP process, Dr McDonnell emailed the Claimant on 31st March 2023 [313] with an invitation to her initial performance review on 17th April; there then followed an exchange of emails during which they agree to meet in person and it is noteworthy that the Claimant did not request that the meeting be conducted remotely. At this meeting, the performance plan was discussed and, on 21st April, Dr McDonnell sent an email to the Claimant with a copy of the agreed improving performance plan and a list of the 3 proposed dates for 90- minute afternoon IPP meetings, which were to be on 12th May, 30th June and 19th July. Dr McDonnell said: “I will send you a diary invitation in due course for those three review dates and we can aim to meet via MS Teams, though we may decide it is more appropriate to meet in person and will let you know with plenty of notice”. In response, the Claimant replied on the same day [366] saying that she will book time out for those meetings and then went on to say that the first date is during a teaching block but she is still happy to attend and would need to find a confidential space on campus. Subsequent emails show the arrangements being made for a meeting on campus on 12th May, with Dr McDonnell saying that he will “rearrange [his] work diary, cycle like a maniac from Wythenshawe and probably arrive a little sweaty but it would be nice to meet in person”; the Claimant replied that an in-person meeting would suit her [371]. The Prestwich Placement[20]In the meantime, the Claimant commenced her second placement at Prestwich Hospital with perinatal psychology services on 22nd May 2023, which was observed by Dr McDonnell to align with the Claimant’s needs for car parking and good toilet access but would also involve some community work [392-2]. It can be seen from emails between Dr Fothergill and Dr Niemz on 20th April [355-6] that it had been very challenging for them to find a placement for the Claimant given her needs and her disability; at that stage, 8 possible supervisors had been identified but 5 had declined, with 2 considering a joint placement and one yet to respond; the main issue leading to so many refusals was identified by Dr Niemz as being the concerns surrounding patient safety after the reports that had arisen during the Claimant’s first placement.[21]By mid-June 2023, concerns were being raised about the Claimant’s performance on the Prestwich placement, such as those set out by Dr Niemz in her email to the Claimant on 15th June [637], within which she observes that it was positive for the Claimant to have recognised that she was feeling insufficiently well to remain at work but then reminds the Claimant that “when you are in work, it is important that you are fully fit and well enough to complete all aspects of your role” because if you remain at work “we would consider you well enough to be able to undertake all duties discussed with your supervisor and be evaluated as a trainee clinical psychologist undertaking training”. As a result of these concerns, Dr Niemz said that she has asked Dr McDonnell to complete a further occupational health referral. The IPP Meetings[22]In light of the concerns highlighted above, Dr McDonnell emailed the Claimant on 15th June 2023 with an invitation to an in-person appointment for the second IPP meeting on 29th June [636]. In response, the Claimant asked [636] if the meeting could be conducted remotely as she is currently suffering from fatigue and further commuting would aggravate this. Dr McDonnell’s response at 17:09 that day [635] was as follows: Hi Sarah, I do not feel this meeting can or should take place via MS Teams given some of the issues that I have been made aware of today. I would propose that you arrange with your supervisor to not attend placement in person that day but instead work from home in the morning and then attend the university for our meeting in the afternoon. Hopefully this will help you avoid the doubling of your commute on that day. Thanks Pod[23]The Claimant replied “thank you, I will do so” and agreed in cross-examination that the concerns referred to by Dr McDonnell were immediate performance concerns but disagreed with Dr McDonnell’s view (as set out in his witness statement at paragraph 22) that, as he had to tell the Claimant at the meeting that there may be a need to consider halting the informal process and moving to a formal process concerning performance improvement, this was better done in person. In response to this suggestion, the Claimant said in cross-examination that “I’m the best judge of what’s in my best interests”. However, the Claimant also agreed that Dr McDonnell had acknowledged the possible difficulty for her of going to the meeting in person after working in Prestwich in the morning so had suggested that she could work from home during the morning instead to alleviate any concerns about extra travel.[24]Having been made aware that the Claimant was struggling with her placement, was experiencing stress and had taken time off work for health reasons from 16th to 20th June, Dr McDonnell made a further referral to occupational health [644]. The resultant report, dated 10th July 2023 [748], states that the Claimant has “declined consent for the report to be released to the referring manager [Dr McDonnell] and has nominated for Mark Bowers to be the recipient” so these changes need to be made in order for the report to be released. This reflects the fact that the Claimant filed a grievance in respect of Dr McDonnell on 14th August 2023 [892-3 and 1190-1194] citing “disability discrimination and bullying behaviour” and also whistleblowing in relation to his “misogynistic language and attitude to female staff”. A further, and related, grievance was filed on 18th December 2023 [951-3]. As noted above, the whistleblowing detriment claim in these proceedings was withdrawn by the Claimant so these matters will not be considered directly herein and are only mentioned to clarify the background circumstances.[25]The second IPP meeting took place on 29th June 2023, the notes of which highlighted a number of concerns regarding the Claimant’s performance [877- 885] and, by way of a letter the next day [739], Dr McDonnell informed the Claimant that he was referring his concerns to a “formal stage 1 performance review meeting” because there had been insufficient improvement thus far under the IPP approach.[26]The Claimant commenced long-term sick leave on 10th July 2023 because of stress at work, with GP fitness for work notes being provided for the remainder of the period covered by this claim [115-122]. We understand that, in fact, the Claimant only returned to work in May 2025, a few weeks before the hearing of this case by the Tribunal. It became clear during the course of the hearing that, as the Claimant stopped working in July 2023, she had only attended (in her words when giving evidence) “one or two” home visits during the Prestwich placement which had been shadowing other practitioners; as such, given that the main thrust of the Claimant’s complaint about the Prestwich placement revolved around the requirement to carry out home visits, there was very little time actually spent working in that context. The Applicable Law and the List of Issues[27]The law to be applied by the Tribunal in this case was not controversial and was reflected in the agreed final list of issues (reproduced as an appendix to these reasons), as well as by both parties in their oral submissions. The relevant parts of the Equality Act 2010 which applied in this matter are set out below. There is, of course, a large body of binding authority that informs a proper understanding of how these provisions are to be applied in any given case but, given that there was no controversy between the parties in this respect, it is not proposed to set out those authorities here in any great detail; nonetheless, we were confident that the list of issues was an appropriate route to the correct application of these principles.[28]Section 20 of the 2010 Act provides (to the extent that is relevant here) that:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) 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.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid.[29]Section 21 provides that:(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[30]In respect of the term “provision, criterion or practice” (commonly abbreviated to PCP), and the question of whether or not a respondent has adopted or operated the PCP, this is principally a finding of fact made by the Tribunal on the available evidence. Provisions and criteria are usually written down and are understood to be rules or measurements for certain things to be done or made available. The Tribunal will examine whether the circumstances amounting to the PCP have been applied to a claimant and then consider whether it would be done so again or applied in analogous scenarios to others. If the answer to those considerations is “yes”, there is likely to be a practice (Ishola v Transport for London [2020] IRLR 358). A ‘practice’ might also be found where a Tribunal considers there is an expectation or requirement for something to be done or not done (Carerras v United First Partners Research Ltd EAT 0266/15).[31]Furthermore, it is possible, in the appropriate circumstances, for a one-off decision to be seen as a PCP. As per the Court of Appeal at paragraph 38 of the Ishola decision: In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.[32]Section 21 of the 2010 Act deems that a failure to comply with the three parts of Section 20 is a failure to comply with a duty to make reasonable adjustments, which is an act of discrimination. In other words, the employer must take reasonable steps to alleviate the substantial disadvantage, where ‘substantial’ means “more than minor or trivial” (as per Section 212(1) of the 2010 Act).[33]An employer is not liable in respect of a failure to make reasonable adjustments unless it knows, or is reasonably expected to know, that a PCP will place the employee at a substantial disadvantage. Schedule 8 of the 2010 Act deals with in-work reasonable adjustments and paragraph 20(1)(b) includes employees by virtue of the definition of an ‘interested disabled person’ in Part 2 of Schedule 8. Paragraph 20(1)(b) reads (together with Section 20(1)): A [the employer] is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know…that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. Findings on the List of Issues[34]Turning to the list of issues, we considered each paragraph in order so as to reach our decision and made the findings set out below. Existence of PCPs[35]Paragraph 1 asks: Did the Respondent have the following PCPs?a. To complete external work placements (PCP A); andb. To attend performance management reviews and / or other meetings in person at the Respondent’s sites? (PCP B). Existence of PCP A[36]In respect of PCP A (to complete external work placements), it was argued on behalf of the Respondent that this PCP was not a requirement imposed by the Trust but by the doctoral programme, emphasising the evidence of both Dr Bowers and Dr McDonnell that the University was the arranger and the relevant NHS trust was the provider in respect of the Claimant’s placements at both Bolton and Prestwich. Reference was made to the case of County Durham and Darlington NHS Foundation Trust v Jackson & Health Education England [2018] UKEAT/0068/17/DA, which arose from a very similar situation involving multiple organisations involved in the provision of training for a consultant anaesthetist who developed a latex allergy. Its relevance, which we considered carefully, lies in the requirement to analyse, on a proper factual basis, the elements of the trainee’s course which are provided primarily by each individual organisation rather than to fall into error and simply attach responsibility to them all equally when dealing with the issue of reasonable adjustments. We paid particular attention to paragraphs 9, 32 and 34 of the judgment as they encapsulated this specific point: 9. In order to carry out the programme Dr Jackson entered into an employment contract with the Trust for a fixed three year term starting on 1 August 2012. Under that contract she was obliged to deliver patient care and undertake other training activities; the continuation of the contract was dependent on her continuing satisfactory appraisals; and the Trust was responsible for paying her and providing HR support. Under the Lead Employer/Host Training Trust arrangements referred to above, she was assigned to the Royal Victoria Hospital in Newcastle for the first year of the programme. She then started a 12 month placement in Anaesthetics at the Sunderland Royal Hospital in August 2013. HEE were responsible for assigning her to Sunderland as part of the training programme and her employment contract with the Trust required her to provide clinical services at the locations to which she was assigned as part of the training. … 32. The ET's formal Judgment on this part of the case was simply that "… the claim that [HEE and the Trust] were in breach of the duty to make reasonable adjustments (section 20 EqA) is well founded". But nowhere did they spell out any specific "step" that HEE and/or the Trust ought to have taken in order to comply with that duty. It seems to me that on any view this failure was going to lead to substantial difficulties at the next stage of the proceedings and it may have been argued that in itself it involved an error of law. However, HEE and the Trust have not specifically relied on this failure although it does, I think, feed into the main ground of appeal on which they do rely. … 34. It seems to me that on the face of it HEE and the Trust make a valid point. As set out above it is clear that:(a) the position of each Respondent to a claim under section 20 needs to be considered separately;(b) any PCP relied on must be that Respondent's PCP;(c) the step(s) required must be practical step(s) to be taken by the relevant Respondent to avoid the disadvantage caused by its PCP; and(d) the question whether it is reasonable to have to take the step(s) includes a consideration of the practicability of taking the step(s): that must include a consideration of whether it is within the legal power of the relevant Respondent. The ET appear to have decided the case without having proper regard to these principles; in particular on the face of it they: (a) imposed liability on both the Respondents indiscriminately without any separate consideration of their respective positions; (b) decided that it would have been a reasonable adjustment on the part of both of them to have "provided" training and work in a hospital which was latex free (or latex light: it is not clear which), when HEE has no control over the conditions in any hospital and the Trust has no control over any other Trust's hospital and no control over where HEE assigns trainees; (c) apparently decided that they both should have made adjustments to the anaesthetics exam (although there is no mention of the exam in the list of proposed adjustments) and the requirements for transferring to another specialty when these were matters within the control of the relevant Royal Colleges and the GMC and had nothing whatever to do with the Trust.[37]We noted in particular the evidence of both Dr Bowers and Dr McDonnell in respect of the tripartite partnership between the Respondent Trust, the University and NHS England when co-ordinating the Claimant’s training and, more specifically, her external placements. At paragraphs 6 and 7 of his statement, Dr Bowers said as follows: 6. The Trust has a relationship with the University and works closely to support trainee clinical psychologists who are employed by the Trust to complete academic studies with one of the Universities commissioned by NHS England to provide the Doctorate Programme. The three year Programme is comprised of a series of clinical practice placements under the supervision of a qualified clinical practitioner to allow the trainees to gain experience working with patients and to meet the necessary competencies required to practice safely as a qualified clinical psychologist. The trainees attend clinical placements three days per week and the remaining two days per week are dedicated to lectures and clinical skills, studying and academic based research which is provided by the University. 7. Various services within the Trust offer supervised clinical placements for the trainees. The allocation of clinical placements is administered by the University clinical tutor team. Trainees will be given placements which suit their educational development needs. The initial part of the Programme lasts around 4 to 6 weeks and involves the trainees attending the University to complete their induction. In particular, they will complete preparatory work to prepare them for their first clinical placement. This involves learning about risk assessments and basic therapeutic skills which are needed to practice safely once they are allocated into their placements. A clinical tutor is allocated by the University, and will meet with the trainee regularly to ensure that they are meeting their clinical competencies and to monitor their progress. The University will usually only involve the Trust in this process if there are any issues which require additional support, for example performance concerns, long sickness absence or to support with the provision of adjustments.[38]Dr McDonnell gave similar evidence and both he and Dr Bowers were challenged on this point by the Claimant in cross-examination. However, they both maintained the position that, whilst they (as employees of the Respondent Trust and supervisors of the Claimant) were involved in recommending placements and how they were implemented, the ultimate decision lay with the University. They both also pointed out during their evidence that it is a crucial element of the course, as required by NHS England, to complete such placements in order to qualify as a clinical psychologist within the NHS. Although the Claimant did challenge Dr McDonnell and Dr Bowers on this issue, they maintained their position very clearly and the Claimant did not adduce any evidence of her own to contradict or undermine their evidence; we therefore had no cogent reason to doubt its accuracy.[39]As such, keeping in mind the requirement to attribute the relevant duties to the correct organisation in respect of each separate issue being considered, we found as a matter of fact for these purposes that the Respondent Trust did not have the PCP of the Claimant completing external work placements (PCP A) and, therefore, using the parking facilities at those placements. Although the day-to-day consequences in practice were perhaps indivisible from the Claimant’s perspective, we reminded ourselves that this would not be the correct approach and that to analyse it in this way would lead us into error. Existence of PCP B[40]Turning to PCP B (the requirement to attend management reviews and / or other meetings in person at the Respondent’s sites), it was argued on behalf of the Respondent that, in effect, there was no practice of having these reviews in person and that, to the contrary, the intended practice was actually to have them online; however, on the two occasions cited (namely 12th May and 30th June 2023), they were changed to being held in person. We kept in mind throughout consideration of this issue the email exchange between Dr McDonnell and the Claimant on 21st April 2023 [366-9] (considered at paragraph 19 above) to the effect that the meetings would be on 3 specific dates (namely 12th May, 30th June and 19th July) and would be online “though we may decide it is more appropriate to meet in person and will let you know with plenty of notice”.[41]As set out above, in respect of the meeting on 12th May 2023, we noted in particular the Claimant’s reply on the same day as the email from Dr McDonnell saying that the meeting on 12th May is “during a teaching block. I am still happy to attend but would need to find a confidential space on campus, I wonder if Claire or Katie could advise?”. On the same day, Dr McDonnell agrees to change this to an in-person meeting, saying that it would be “nice to meet in person”.[42]In respect of the nature of the meeting on 29th June 2023, as set out at paragraphs 22 and 23 above, we heard quite detailed evidence about this point. In summary, Dr McDonnell told us that he decided that it should be in person because of the serious nature of the discussions in the context of increasing concerns about the Claimant’s performance at this juncture. The Claimant argued that this was not necessary or appropriate given her frail mental health at the time and that she knew better than anyone else whether it would be more appropriately dealt with in person or online. We found that, ultimately, this seemed to be more a disagreement about whether or not it was appropriate for that particular meeting to be conducted in-person rather than online in accordance with the original plan; but this was very different from the question of whether or not there was a PCP of having the meetings in person. We kept in mind that the original plan was for the meetings to be online (although with the option to change this on a case-by-case basis) and that the two meetings held in person were changed either at the Claimant’s request or for what was arguably a good reason (although we did not consider it necessary to make a finding on whether it was actually a good reason in our view). We also kept in mind that a one-off change can in theory be a PCP but that the binding authorities are clear that it can only be so if it reflects the practice and would be the same if repeated again on another occasion in a similar situation; given that there was no evidence of this and, in fact, the meeting on 19th July did not actually go ahead because the Claimant had, by then, taken sick leave, we were unable to find that the PCP asserted at 1(b) of the list of issues was made out.[43]During the course of the hearing, the Claimant referred us to the Respondent’s “Improving Performance Policy and Procedure” document [1269-1288] in order to suggest that they had breached their own policy by requiring her to attend in person. For the sake of completeness, we did consider this point carefully but we were unable to see anything in the policy (and were not referred to anything by the Claimant) which deals specifically with the mode of attendance at review meetings. The only possible relevant sections were that “[a]ny protected characteristics and reasonable adjustments should be identified and explored” [1276] and that “[w]here the employee has significant personal circumstances or a disability which may make attendance or active contribution to meetings challenging, advice should be sought from Occupational Health/and or the HR Advisory team to ensure that the employee is able to contribute to the meeting” [1284]. However, we did not consider that either of these aspects of the guidance had been breached as they cannot reasonably be seen to apply to the issues that the Claimant is highlighting in the context of this claim, which are very situation-specific. Application of the PCPs to the Claimant[44]This question is posed at paragraph 2 of the list of issues. Given our findings above that the Respondent did not have these PCPs in the first instance, we considered that it would be wholly illogical to consider, even for the sake of completeness, whether or not they applied them to the Claimant specifically. Substantial Disadvantage to the Claimant[45]Having decided that the PCPs did not exist, we noted that it may have been appropriate to find that we could also not answer paragraph 3 because it depended on the existence of the PCPs in the first instance. However, we considered it appropriate to do so in the event that our findings on the existence of the PCPs were to be re-visited and did not consider that it would be illogical to do so in the same way that consideration of paragraph 2 would have been in such circumstances.[46]It was conceded on behalf of the Respondent during the course of the hearing that the application of PCP A (the completion of external work placements) put the Claimant at a substantial disadvantage in that she needed ready access to car parking both during the Bolton placement and when attending meetings in person. As such, the only dispute related to whether or not the Claimant was put at a substantial disadvantage during the Prestwich placement because she required access to appropriate toilet facilities.[47]In considering this issue, we noted that the Claimant’s description of her condition and its practical consequences was not challenged in any way by the Respondent. It was argued on behalf of the Respondent that there were already adjustments in place in respect of geography and the number and timing of visits in a day; however, we found that none of this would serve to mitigate the issues raised by the Claimant in this regard. In effect, we found that the very requirement to visit someone’s home, which almost inevitably would not have an incontinence bin, washing facilities or a large enough space to change clothes, put the Claimant at a clear substantial disadvantage compared to someone without her disability in any situation where she had a sudden leak of her stoma, which was unpreventable and could occur at any time. Respondent’s Knowledge of a Likely Disadvantage[48]Paragraph 4 of the list of issues asks if the Respondent knew, or could reasonably have been expected to know, that the Claimant was likely to be placed at the disadvantage. The Respondent conceded (sensibly in our view) knowledge of the likely disadvantage to the Claimant in respect of parking at the Bolton placement but did not accept knowledge in respect of the likely disadvantage from home visits during the Prestwich placement or in-person attendance at performance management review meetings.[49]Looking at the Prestwich placement home visits, the Respondent argued that the bundle is replete with evidence that the Claimant said she was content to do home visits; one example was the email from the Claimant to Dr Fothergill and Dr McDonnell on 25th May 2023 [591] saying that she is happy with the pathway and that the only ongoing difficulty relates to the University facilities; this was in response to Dr Fothergill’s email [592-3] setting out the plan for the placement, which the Claimant had started 3 days previously and, therefore, must have known that home visits were involved but raised no concerns in that respect. Home visits are also referred to explicitly in the clinical supervision record dated 23rd May [587], where the Claimant says she would be comfortable asking service-users if she could use their bathroom (although we did note the difference which the Claimant highlighted between asking this and actually having the necessary facilities available in a service-user’s home if there is a sudden stoma leak).[50]The Claimant’s argument was that, in effect, the Respondent had a number of occupational health reports by this stage and, further to that, the people dealing with these issues are highly-trained psychologists who should surely appreciate and understand the nature of her difficulties. However, we found that the occupational health reports actually did not give much, if any, insight into the practicalities of a stoma leak, which is the crux of the complaint about home visits; the same was, in our view, true of the letter of 25th November 2020 [123] from the Claimant’s stoma nurse which was provided to the Respondent at the start of her employment. Equally, we found that it takes matters somewhat too far to say that these individuals could reasonably be expected to have a detailed understanding of this issue simply because they are qualified psychologists, albeit that it was rather disappointing, to say the least, that, when Dr McDonnell gave evidence, he seemed to still have little understanding of this issue.[51]Turning to the Respondent’s knowledge of a likely disadvantage in respect of attendance at in-person meetings, the Respondent makes reference to an email dated 4th May 2023 from the Claimant to John Mulligan (her union representative) [390] where there is a discussion about an in-person meeting at the University and the Claimant makes no reference to any difficulties in attending but just refers to her concern about meeting with Dr McDonnell. The Respondent also argued that the occupational health reports gave the clear impression that the Claimant can continue in respect of most of her normal duties, such as in the report of 14th March 2023 which says [320]: “I consider Sarah is fit for work and she should be capable of managing the hours and duties of her substantive role”. This report makes no reference to a difficulty in attending in-person meetings; at most, it refers to the previous recommendation for “access to remote working”, which is somewhat less similar than the Claimant seems to be suggesting.[52]On a more general level in respect of the Respondent’s knowledge of the Claimant’s condition and the likely disadvantages flowing from it, we emphasised that we fully accept that the Claimant had the difficulties she has described and that they caused her significant distress in her daily life (and no doubt still do). However, the question of knowledge must be considered from the Respondent’s perspective and we agreed with their general argument that the Claimant has been, to a large extent, inconsistent in her reporting of her day-to-day difficulties such that the Respondent cannot simply be assumed to know what they are in specific detail at any given time.[53]One clear example of this inconsistency struck us in respect of the occupational health report dated 14th March 2023 [320], wherein it is said that the Claimant “states her symptoms have improved from when the referral was made. She advises she has implemented self-management strategies such as relaxation and grounding techniques”. It goes on to report mild levels of depression and no levels of anxiety at the assessment and the author says that, in her view, the Claimant is capable of attending inperson meetings in the context of her mental health difficulties. If one then considers the report following a counselling appointment with PAM Assist on 5th February 2023 [257] (so only 5 weeks before that occupational health report), the Claimant is reported to have recently experienced very significant mental health issues to the extent that thoughts of suicide have been expressed by her. We know from an email sent by Dr Niemz on 16th February [274] that the Claimant had already been referred to occupational health by this stage but, in the report, the Claimant says that she has improved since the referral was made.[54]In these circumstances, whilst we have no doubt that the Claimant was experiencing significant difficulties, we are unable to find that the Respondent was sufficiently aware at the time of the performance review meetings on 12th May and 29th June 2023 to be fixed with the relevant knowledge for these purposes. We were also not persuaded by another strand of the Claimant’s argument, which seemed to amount to a suggestion that the Respondent had a duty to continually assess if there have been any changes in her mental health even if she has not specifically reported any to them. None of this is intended as a criticism of the Claimant, whom we recognise was struggling with her mental health at the time, but is said in order to emphasise that we must consider the information which the Respondent actually had and not simply what the Claimant may have believed that they should have known or understood. What Steps Could the Respondent Have Taken to Avoid the Disadvantage?[55]We considered paragraphs 5, 6 and 7 of the list of issues together, which read as follows: 5. What steps could have been taken to avoid the disadvantage? The Claimant suggests that In respect of PCP A, during the Bolton placementa. The Respondent could have provided a parking space when she needed one; In respect of PCP A, during the Prestwich placementb. The Respondent could have given her an external placement with access to suitable toilets as it had on her first work placementc. The Respondent could have held the meetings remotely 6. Was it reasonable for the Respondent to have taken those steps? 7. If so, did the Respondent fail to take those steps?[56]In considering these issues, we were conscious of the principles, highlighted on behalf of the Respondent in submissions, found in cases such as County Durham v Jackson (discussed at paragraph 37 above) and Linsley v Commissioners for Her Majesty’s Revenue and Custom [2018] UKEAT/0150/18/JOJ, the latter emphasising that, in effect, the thought process by which a reasonable adjustment is reached is irrelevant and that it is simply the end result which counts. For this reason, although we were, as noted above, somewhat unimpressed by Dr McDonnell’s apparent lack of consideration of the Claimant’s physical health needs in the context of home visits, that should not properly form a part of our consideration of this issue and it did not do so.[57]The second important principle we kept in mind was the need to consider the practicability of any specific adjustment suggested and that, in this case in particular, the extent to which the employer’s control of that specific situation is a key element to weigh in the balance. We also noted that, where a number of reasonable adjustments are available, there is no requirement to implement the one preferred by the employee as the adjustment simply has to be reasonable in all the circumstances, with the primary requirement being that it alleviates or removes the difficulty complained of.[58]With these principles in mind, we considered the question of reasonable adjustments in respect of parking at Bolton. The Respondent’s argument was, as noted above, that they had no control over the actual situation on the ground and that their duty did not and could not extend to anything more than raising the issue on the Claimant’s behalf and assisting in getting it resolved for her; on a basic level, the car park was not owned or operated by the Respondent and, as such, there was little they could reasonably be expected to do in this regard. We accepted this argument on the facts before us and there was, on that evidence, little that the Claimant was able to identify which undermined it. The car park at Bolton was owned and operated by Bolton NHS Trust and was therefore not within the Respondent’s control; the suggested reasonable adjustment was that the Respondent could have provided a parking space when the Claimant needed one but we found that this was simply not feasible or realistic on the information we had. What we did see, however, was evidence that the Respondent did raise this with the Bolton Trust on a number of occasions but were unable to move matters along any further because of the tripartite structure within which they were functioning.[59]In the event that we are wrong and it was indeed within the Respondent’s power to implement reasonable adjustments in respect of the parking at Bolton, we failed to see what they could reasonably have been expected to do in any event. Whilst we understood entirely the difficulties faced by the Claimant if she were to arrive and find no disabled space available for her use, this is, as was suggested in submissions, a simple matter of numbers such that, on any given day at any given time, there may be more people with a disabled badge using the car park than there are spaces; as such, beyond creating extra spaces or allocating a specific space to the Claimant (neither of which was argued by her as being a potential adjustment), we simply could not see what adjustments could realistically be made to alleviate or resolve this problem. We also noted that the Claimant’s suggestion of better monitoring and enforcing of parking restrictions for people using disabled spaces when they were not entitled to do so would be unlikely to resolve the problem as ticketing a vehicle which has violated those rules would not remove it at the time from blocking the space it was occupying.[60]Finally, we also noted that the Claimant was given contact details which she could use to report these issues herself but did not do so. Whilst we understand her to say that she felt as though she should not be responsible for doing this herself as a disabled employee who was struggling with her mental health at the time as a consequence, we did not find that assertion to be altogether reasonable given that it was a question of sending an email in respect of an issue which she felt needed resolution and was not being dealt with to her satisfaction.[61]Turning to the question of reasonable adjustments in respect of home visits during the Prestwich placement, we kept firmly in mind that the Claimant had to successfully complete a specified number of placements in order to demonstrate the core competencies expected by NHS England such that there was no choice as to whether such placements could be avoided in their entirety. The Claimant’s complaint is that her second placement should have had access to suitable toilets (which we assumed to mean disabled toilets with the facilities already highlighted) in the same way that her first placement at Bolton provided. The Respondent’s argument was that they did make sufficient adjustments such as limiting the distance the Claimant would have to travel to home visits, how often she had to do them and how they would be structured during any given day; but, it was argued, it was not possible to reconcile the need for fully accessible toilets with home visits. Furthermore, they argued, there had to be a placement allocated and, for various reasons which linked also to performance management after reported concerns as well as to the Claimant’s physical requirements, there were very few options left such that it would have been very difficult for them to find a different placement for her at the time.[62]We found this a difficult issue to consider because, ultimately, it seemed to us axiomatic that, once the Claimant was allocated a placement which involved home visits, she would not, by definition, have the option of urgent access to disabled toilet facilities when undertaking such visits. As a result, the only real adjustment that could be made to alleviate this problem would be to avoid home visits. That was not possible on this placement. This then led us to find that, in reality, the only adjustment that could be made in this respect would be to change the placement. As already noted, the ultimate responsibility for the choice of placement was the University’s and not the Respondent’s and, as such, it would not be possible for the Respondent to implement this change.[63]We were rather troubled to discover during the course of the hearing (as illustrated by the email exchange from April 2025 [1341]) that there has now been a decision that the placement can continue without the need for home visits, although we were unclear as to why this had happened almost 2 years later. However, it also seems from this email that this was a decision which ultimately could only be taken by the University and the placement provider and, therefore, could not have been implemented by the Respondent at the relevant time. We did wonder what had changed in the last 2 years but we have heard no evidence on this point and, in reality, that could not change our finding that this was not an adjustment that could be made by the Respondent in any event.[64]We then considered the question of reasonable adjustments in respect of remote meetings. As already noted, we found that there was no PCP of requiring such meetings to be held in person so it would have been a wholly artificial exercise for us to go on and consider, in the alternative if we were wrong about that, whether a reasonable adjustment could have been made to have the meetings remotely given that our finding was that the policy starting point was indeed to hold meetings remotely. We also noted, as we reminded ourselves in respect of the applicable principles, that the Claimant simply having a preference for remote meetings cannot be determinative of the issue in any event. We therefore did not consider it necessary to answer this question specifically in order to resolve the claim. Time Limits[65]Given the findings made above, we considered it unnecessary to determine whether we had jurisdiction to hear the claims in respect of time limits.
Conclusion
[66]In summary, we made the following findings:a. There was no PCP applied by the Respondent to the Claimant in respect of either PCP A or PCP B;b. As such, it was technically unnecessary to go on to consider any other issues but we did do so, where possible, in case we were wrong on those points;c. We then found that the Claimant was put at a substantial disadvantage in respect of both PCPs as set out at paragraph 3 of the list of issues;d. Moving to paragraph 4, we found that the Respondent had knowledge of the likely disadvantage by way of parking at Bolton but not in respect of either the home visits at Prestwich or the attendance at in-person meetings; ande. Dealing with paragraphs 5, 6 and 7 together, we found that, ultimately, the Respondent did not have sufficient control in respect of either aspect of PCP A to render any suggested adjustment reasonable; and, in respect of PCP B, we could not determine that issue in the Claimant’s favour in light of the findings we had already made that no such PCP existed in any event.[67]In light of the findings we made, we were unable to find that any part of the Claimant’s claim succeeds. We would emphasise that we can only deal with the claim and the specific respondent before us and have to apply the law as it is; we have therefore had to, and did, put out of our mind any sympathy we may have had for the situation in which the Claimant found herself and limited our decision-making to that which we must decide.
Conclusion
[1]The Claimant’s claim for detriment after making a protected disclosure is dismissed upon withdrawal.[2]The Claimant’s claim for failure to make reasonable adjustments for disability is not well-founded and is dismissed.