Ms K Rahman v University Hospitals of North Midlands NHS Trust: 2405815/2023

EMPLOYMENT TRIBUNALS

Case No 2405815/2023

Between

Ms K RahmanClaimant

University Hospitals of North Midlands NHS TrustRespondent

Before

A panel comprising Judge Callum Cowx,

In person for claimant

Miss Amy Smith (instructed by Counsel) for respondent

Date 5 March 2025

JUDGMENT

[1]The claimant’s claims of failing to make reasonable adjustments contrary to Sections 20 and 21 of the Equality Act 2010 and harassment on grounds of disability contrary to Section 26 of the Equality Act 2010 were presented out of time on the 14th of May 2023. These claims were also not presented within such other period as the Tribunal thought was just and equitable. The Tribunal therefore has no jurisdiction to hear these claims, and they are dismissed on this basis.

[2]The claimant’s claim of constructive unfair dismissal contrary to Section 94 of the Employment Rights Act 1996 was presented out of time on the 14th of May 2023. This claim was not presented within such further period as the tribunal considers reasonable. The Tribunal therefore has no jurisdiction to hear this claim, and it is dismissed on this basis.

REASONS

[1.1]This was a final hearing conducted in person on 10 – 13 December 2024.

[1.2]The Tribunal had to decide the following claims against the respondent:a. Harassment on grounds of disability contrary to Section 26 of the Equality Act 2010.

b. Failing to make reasonable adjustments contrary to Sections 20 and 21 of the Equality Act 2010.

c. constructive unfair dismissal contrary to Sections 94, 95 and 98 of the Employment Rights Act 1996.

[1.3]The issues to be determined were identified at the hearing and these are to be found at pages 711 to 716 of the bundle.

[1.4]Miss Smith for the respondent submitted that any event prior to 15 December 2022, relied upon by the claimant in support of her claims, was out of time and could not be heard by the Tribunal unless the Tribunal found it to be just and equitable to extend the time limit. In particular the respondent argued that all elements of the harassment claim were brought out of time. Whether or not the alleged failures to make reasonable adjustments were out of time would depend on findings of fact as to when the alleged failures crystallised.

[1.5]The Tribunal found that the respondent had miscalculated the time limit and that any event prior to 3 January 2023 which was relied upon by the claimant in support of her claims was out of time.

FACTS

[2.1]The Panel found the following facts proved.

[2.2]One of the services provided by the respondent NHS trust is anticoagulation, as part of its North Midland and Cheshire Pathology Services. The claimant began her employment as an anticoagulant practitioner on 5 June 2018 and transferred to the respondent trust on 1 December 2020 upon a structural reorganisation involving mid Cheshire and north Midlands.

[2.3]At the relevant time the claimant was a Senior Anticoagulant Practitioner. The role involved monitoring the medication needs of patients, including the correct dosage of Warfarin to treat and prevent blood clots.

[2.4]The claimant’s principal place of employment was Macclesfield District General Hospital, but when needed she was required to work at other premises, including hospitals, GP surgeries, and on occasion, her role required her to conduct domiciliary visits to patients.

[2.5]One of the main aspects of the claimant’s day to day work activity was ‘dosing’ patient. This does not entail administering medicine to patients but is the inputting of data into a patient’s records on the respondent’s computer system known as DAWN Anticoagulation software. Patients have their blood tested regularly to ensure it is clotting properly. Patients test their own blood using a portable meter. The readings are supplied to the Anticoagulation Practitioner who enters the results into DAWN which then calculates the correct Warfarin dose.

[2.6]The claimant resigned on 4 November 2022 giving 8 weeks’ notice. Her effective date of termination was 30 December 2022. She lodged her claims on 14 May 2023 after a 42-day period of conciliation.

[2.7]At no time during her employment did the claimant raise a grievance about the matters which form the basis of these claims. She did however raise an earlier grievance against her line managers Carlee Buckingham (CB), the Anticoagulation Manager, and Marese O’Brien (MB), the Lead Biomechanical Scientist. This grievance was submitted in early 2022 to Rebecca James (RJ) the Haematology and Blood Transfusion Manager. The claimant was unhappy with the way CB and MB had managed her earlier sickness absence. Her grievance was upheld in part, in that although CB had correctly followed the respondent’s sickness absence policy, the situation could have been handled better. As a result, a facilitated meeting took place between CB and the claimant on 31 May 2022 in order to reset their professional relationship and to agree a plan for the claimant’s phased return to work, which then occurred. Disability

[2.8]The claimant has a number of health conditions, all of which she submits amount to disabilities according to section 6 of the Equality Act 2010. These are diabetes, depression, and degenerative spinal disease. The respondent does not accept that the claimant’s diabetes amounts to a disability.

[2.9]On the claimant’s own evidence, her diabetes does not require medication to counter its effects, instead relying upon diet control. In practice, and on her own evidence, she does not take any particular dietary steps to manage her diabetes. She discussed her diabetes with CB at some time in 2019 and CB suggested to the claimant that she eat breakfast before coming to work. The claimant said she did not eat breakfast, stating that at most she might have a couple of biscuits in the morning.

[2.10]The respondent accepts that the claimant was disabled at the relevant time by reason of depression and degenerative spinal disease. The respondent accepts that it had knowledge of the claimant’s depression at the relevant time but does not accept that CB had knowledge of the claimant’s degenerative spinal disease at the relevant time. On 6 June 2018 the claimant completed an object handling assessment. At the foot of the form, on the same date, MB made a handwritten note acknowledging the claimant had a “Degenerative Musculoskeletal Disorder, affecting lower back, neck + shoulder area + hands”.

[2.11]However, on the harassment claim the issue the Tribunal had to determine was whether CB, the claimant’s immediate line manager, and the person accused of harassment, was aware of the claimant’s spinal disease. CB became the claimant’s line manager in September 2019. The claimant said that she made CB aware of her back condition during a one-to-one meeting in July 2022. On receipt of her claim, the respondent’s lawyer asked the claimant when she made CB aware of her back condition. She said it was at a one-to-one meeting on the 1st or 6th of July 2022. In cross examination it was pointed out to the claimant that there was no reference to this topic being raised in the written record of the meeting in July 2022. The claimant then altered her evidence, saying she recalled the conversation happened on 7th July 2022 when CB visited her at Macclesfield Hospital. The claimant asserted that she told CB that her spinal disease was becoming more troublesome and asked to reduce her hours. She said that she also complained about the desk chairs in her office at Macclesfield Hospital which were aggravating her back condition. CB denied the assertion that the claimant told her about her spinal disease, wanted to reduce her hours because of it or complained about the office chairs. The Tribunal preferred CB’s evidence on these points because of the claimant’s readiness to shift her position on the date and place of the conversation when confronted with the absence of any reference to it in the meeting note. If any such conversation had taken place, about something so significant as the claimant’s spinal condition being aggravated by unsatisfactory office chairs and wanting to reduce her hours because of it, then she would have committed it to writing. Because of the previous grievance the claimant had made against CB, it is more likely than not that she would have kept a written record of such a notable conversation or sent CB an email shortly afterwords confirming what she had said to CB.

[2.12]On 9 November 2022 the claimant emailed CB about some health issues she was experiencing at that time. In the email she wrote “Waiting on the results of my spine x-ray had on Monday. Obviously there is a problem as I seem to be getting this quite often recently.” In oral evidence the claimant said that this x-ray for a fracture and was not connected to her spinal disease. The Tribunal was satisfied that this email alerted CB to the fact that the claimant was experiencing possible problems with her spine but was not evidence of the claimant making CB aware of her longstanding spinal disease. Time Limits

[2.13]The respondent accepts that the claimant’s claim of constructive unfair dismissal was brought in time. However, the Tribunal found this is not correct. It was out of time. The claimant submitted her claim on 14 May 2023. Working back three months less one day, one arrives at 15 February 2023. The early conciliation period was 42 days. Counting this period backwards from 15 February 2023 one arrives at 3 January 2023. Any event relied upon by the claimant which took place before 3 January 2023 would be out of time. The claimant’s effective date of termination was on 30 December 2022.

[2.14]The Tribunal agrees with the respondent that the claimant’s claim of harassment was brought out of time. This is because the alleged instances of harassment occurred before 3 January 2023.

[2.15]The Tribunal also agrees with the respondent that the claimant’s claim of failing to make reasonable adjustments was also brought out of time. The alleged failures by the respondent all crystalised before 3 January 2023.

[2.16]The claimant knew of the existence of the Employment Tribunal and that she had a right to bring a claim before the Tribunal. She was aware there were time limits, but she did not know what they were. In her email to RJ on 26 February 2022 in which she raised a grievance against CB for alleged harassment, bullying and threatening behaviour, she alerted RJ that she was prepared to take further advice from ACAS if RJ did not provide a written response to her grievance. The Tribunal found that the claimant’s awareness of the existence of ACAS signalled the fact that she was also aware that she had employment rights which included bringing a claim in the Employment Tribunal if she was not satisfied with her employer’s response, and she had this in mind at that time of the earlier grievance. She therefore had some knowledge of the Employment Tribunal claims process.

THE LAW

[3.1]The relevant law is to be found in the Equality Act 2010 (“the EqA”) and the Employment Rights Act 1996 (“the ERA”) at: The EqA Section 20 Duty to make adjustments(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. 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) [Not strictly relevant to this case] Section 21 Failure to comply with duty (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. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. Section 26 Harassment (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of- (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for

b. B. Section 123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. The ERA Section 94 The right (1) An employee has the right not to be unfairly dismissed by his employer. Section 95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) . . . , only if)— (a) [Not strictly relevant to this case] (b) [Not strictly relevant to this case] (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. Section 111 Complaints to employment tribunal (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. APPLYING THE FACTS TO THE LAW Disability

[4.1]The Tribunal finds that the claimant’s diabetes does not satisfy the definition of disability laid down at S.6 of the EqA 2010 because as a physical impairment it does not have a significant effect on her day-to-day activities. She takes no medication for it and does very little in terms of diet to counter the effects of her diabetes.

[4.2]The Tribunal accepts that the claimant was disabled at the relevant time by reason of depression and a degenerative spinal disease because this is accepted by the respondent and the Tribunal has not been presented with evidence which contradicts this agreed position. The Tribunal also accepts that the respondent had knowledge of the claimant’s depression and of her degenerative spinal disease at the relevant time. The latter specifically was known to MB on 6 June 2018. However, CB was not personally aware of the claimant’s spinal condition. At most, CB knew from 9 November 2022 that the claimant was having a problem with her spine and had had an x-ray. The Tribunal rejected the claimant’s assertion that she made CB aware of her spinal condition in early July 2022. Time Limits

[4.3]The claims of harassment, failing to make reasonable adjustments and constructive unfair dismissal were all brought out of time.

[4.4]In regard to the claims brought under the EqA, the Tribunal found that it was not just and equitable to extend the time limit in the claimant’s case. In reaching this decision the Tribunal had in mind the case of British Coal Corporation V Keeble

[1997] IRLR 336

, and subsequent guidance given by Underhill LJ in Adedeji v University Hospitals Birmingham NHS Trust

[2021] EWCA Civ 23

. In accordance with the guidance in Adedeji the Tribunal did not use the factors laid down in of British Coal Corporation V Keeble as a checklist which had to be followed rigidly, but instead, assessed all the factors in this particular case which it considered relevant to whether it is just and equitable to extend time.

[4.5]What was relevant was the fact that the claimant knew of the existence of the Employment Tribunal and that she had a right to bring a claim before the Tribunal. She was aware there were time limits, but she did not know what they were. As early as 26 February 2022 the claimant was considering the possibility of a claim in the Employment Tribunal. She mentioned taking advice from ACAS at that time. It is more likely than not that she conducted some research at that time regarding the options open to her which of course included bringing a claim. Several months later, according to the claimant’s claims, the situation with CB deteriorated again, despite the earlier grievance she had brought against her. As a result, the claimant brought claims of harassment against CB, amongst other claims against the respondent in general.

[4.6]Equipped with the knowledge she had from her grievance earlier in the year, the claimant must have been aware that she could bring claims in the Employment Tribunal, yet she delayed doing so until after the time limits had expired. The claimant did not provide any cogent reasons for delaying her claims beyond the time limits. There was no delay on the part of the respondent which hampered the claimant, and at the time of the alleged unwanted conduct and failures to make reasonable adjustments, the claimant knew that she could seek advice from ACAS which would have included advice on bringing claims in this Tribunal and the applicable time limits.

[4.7]Taking the above factors into consideration, the panel found it was not just and equitable to extend the time limits for the harassment claims or the reasonable adjustment claims. Therefore, the Tribunal does not have jurisdiction to decide the claims of harassment and failing to make reasonable adjustments.

[4.8]The exception to the three-month time limit rule is different when claims of unfair dismissal are brought. The test is whether or it was not reasonably practicable for the complaint to be presented before the end of the three-month period. On the facts of the claimant’s case the Tribunal found that it was reasonably practicable for her to bring her claim of constructive dismissal in time. Although her effective date of termination was 30 December 2022, she in fact gave notice of her intention to leave the respondent’s employment almost two-months before the date of termination. She therefore had almost five months in which to consider whether she wanted to bring a claim, seek advice, conduct research, speak to ACAS (as she previously suggested she would) and then make a decision. For these reasons the Tribunal does not have jurisdiction to decide the claim of constructive unfair dismissal. Harassment

[4.9]The Tribunal reached its decision on jurisdiction as part of its assessment of the whole of the evidence in this case. Although deprived of jurisdiction to make a determination on the claims of harassment, failing to make reasonable adjustments and constructive unfair dismissal, on assessing all of the evidence concurrently, the Tribunal did reach conclusions on the merits of those claims.

[4.10]If the claims of harassment were brought in time the Tribunal concluded that they would not have been proved.

[4.11]By rostering the claimant to work at Leighton Hospital on 15 August 2022 CB did not single out the claimant because of her disabilities or for any other reason. CB merely performed her role as a line manager, whose duty was to ensure available staff were deployed appropriately, to ensure the service met the needs of its patients. CB did not personally intervene and alter the staff rota as suggested by the claimant, in an effort to inconvenience her. Andrea Gardner (AG) drafted the rotas, but these were always subject to change by CB who had greater oversight of staffing issues. It was also part of the claimant’s terms of employment that she could be deployed to sites other than her usual base and she was not treated any differently to other staff in this regard. There was no reason why it would have any of the statutory effects.

[4.12]By cancelling one-to-one meetings on 17 and 25 October 2022, and 8 and 11 November 2022, CB did not engage in any form of unwanted conduct towards the claimant connected to her disabilities. CB had good reason to cancel the meetings which could not be successfully challenged by the claimant. On the first occasion her stepson was ill. On the second she had Covid. On the third she had to rearrange because it clashed with another meeting and on the fourth it was cancelled because of the claimant’s resignation. There was no reason why it would have any of the statutory effects.

[4.13]The telephone call to the claimant on 12 October 2022 did not amount to harassment as claimed. CB had access to the DAWN system and noted that the claimant was falling well short of her dosing requirement for her shift. CB was merely fulfilling her duty as a line manager, accountable to her own line manager for the effective delivery of a service. It was perfectly reasonable of her to make the enquiry she did with the claimant. It was not unwanted conduct and had nothing to do with the claimant’s disabilities. There was no reason why it would have any of the statutory effects.

[4.14]In regard to the alleged remark by CB on 29 November 2022, “What are you saying, you can’t do your job?”, the Tribunal was not persuaded that CB used the words as the claimant recalled at a later date. If it had been as combative as the claimant alleged then she would have made a written record of it given her history with CB (ie, the grievance). But even if the comment was made, in the same or similar terms, the Tribunal found it would not have amounted unwanted conduct, related to disability and with any of the statutory effects. CB was striving to deliver a service and was faced with the added difficulty of overcoming an objection from one of her staff who, on the face of it, was unwilling or reluctant to perform the role she was contracted to do.

[4.15]If a comment like that suggested by the claimant was made by CB, it was merely a reflection of her frustration. Even taken at its highest, and viewed objectively, the comment would not have had the purpose or the effect of violating the claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In the Tribunal’s judgement the claimant had demonstrated, through email correspondence prior to this time and certainly at the time of the earlier grievance, that she was a robust and assertive individual, willing and able to defend her own position and to challenge her line management when it suited her. Therefore, the effect she claims the comment had on her, if uttered at all, was rejected by the Tribunal. Failure to make reasonable adjustments

[4.16]The respondent did not fail to make reasonable adjustments.

[4.17]Three provisions, criteria or practices (“PCP”) were suggested in the list of issues. The first two each amount to a PCP. They are rostering staff to undertake lone work at outreach clinics and the requirement for staff to pick up equipment at a different site to the outreach clinics.

[4.18]The third suggested PCP, as worded in the list of issues, is not a PCP in the Tribunal’s judgement. However, it is apparent that the intention was to capture the PCP which requires staff to routinely work at a desk and operating “display screen equipment” (“DSE” ie, computers). Expecting staff to work to do desk-based work without an appropriate chair and without a DSE are not PCP’s themselves but are the steps that an employer might take prevent a disabled person being at a substantial disadvantage.

[4.19]Having found the above three PCPs to be in place, the panel did not find that any one of them put the claimant at a serious disadvantage.

[4.20]The main thrust of the claimant’s complaint about reasonable adjustments was connected to the requirement to work at locations other than her primary workplace which was at Macclesfield Hospital.

[4.21]In reality, and on the claimant’s evidence, she in fact only worked alone at one such outreach location in the relevant period and this was when she worked a single shift at Knutsford Community Hospital on 11 October 2022. She complained of having to drive 11.3 miles to Macclesfield Hospital to collect Vitamin K. The claimant was silent on the point, but this journey must have been from her home to Macclesfield Hospital, which was her usual journey. It was an important requirement that anticoagulant practitioners had access to Vitamin K which is stored in refrigerated conditions. At that time, there were no fridges in the outreach locations. The claimant then had to drive 11.1 miles to Knutsford. In the afternoon, the claimant had to drive back to Macclesfield Hospital to finish her shift.

[4.22]The claimant claimed that a substantial disadvantage was the back pain she suffered as a result of the additional driving. The Tribunal was not satisfied, without more, that the claimant suffered any pain or discomfort over and above that which she may have experienced daily when driving to work. On a daily basis she was driving to and from work, a total of 22.6 miles. The Tribunal was not satisfied the additional short time spent in a car on the single occasion complained of, or on any other odd occasion when she was required to travel to an outstation, amounts to a substantial disadvantage.

[4.23]Even if this driving complaint amounted to a substantial disadvantage, then the respondent had no knowledge of it. The respondent (although not CB) was aware of the claimant’s back condition, but the claimant did not make her employer aware that it was aggravated by driving.

[4.24]The claimant did not claim that she was at any disadvantage at Knutsford due to the office chairs there or the anything to do with DSE assessments. She did claim that she complained to CB about the chairs in her Macclesfield office. She said she did this in July 2022, but as mentioned above, the Tribunal found that no such conversation took place. The claimant produced photographs of office chairs said to be from her Macclesfield office, said to have been taken in August 2022 as proof that she was unhappy with the state of the chairs. Yet the photographs do not indicate anything suggesting they were not suitable for the claimant’s back problem and if she was unhappy with the chairs, she did not raise a concern or complaint at the time, in writing, which one would expect if she had genuine concerns. This failure caused the Tribunal to conclude that she was not caused any disadvantage by the office chairs in Macclesfield nor was she caused any disadvantage by the alleged failure to conduct a DSE assessment there. Even if the claimant was at a disadvantage because of office chairs or the failure to carry out a DSE assessment, then this would have been because of her spinal disease and not her anxiety and depression. The respondent (although not CB) was aware of the spinal condition, but it was not aware of any disadvantage because the claimant at no time suggested it to the respondent.

[4.25]As for the claimant’s anxiety and depression, she did not adduce cogent evidence to persuade the Tribunal that the requirement to work a single shift at Knutsford, without the support of an anticoagulant support worker, put her under such additional stress that she was at a substantial disadvantage. Similarly, the Tribunal found no evidence of other substantial disadvantage suffered by the claimant which was linked to her anxiety and depression. Constructive Dismissal

[4.26]The repudiatory breach alleged by the claimant in this case is one of breaching the implied term of trust and confidence. The claimant submitted a short letter of resignation on 4 November 2022. In that letter she gave no indication that she was unhappy with CB or any other aspect of the respondent’s conduct towards her. From the absence of such early complaint, the Tribunal drew the inference that the claimant did not, at that time, hold any belief that her employer had conducted itself in a manner calculated to destroy or seriously damage the relationship of trust and confidence between them.

[4.27]The above inference drawn by the Tribunal is bolstered further by fact the claimant was content to work a full 8 week notice period, a decision which contradicts her claim that the respondent had conducted itself unreasonably as she later claimed.

[4.28]Even if she genuinely held such a belief (and the Tribunal emphasises that she did not), the Tribunal is not satisfied by the evidence that the respondent did conduct itself in a manner calculated to destroy or seriously damage the relationship of trust and confidence. The essence of this case was that the claimant had a firm view of how she wanted to do her job, which did not include working at locations other than her primary place of work, despite this being a term of her contract of employment. This caused her to clash with her line manager, CB, who had a responsibility to deliver an important health service, with limited resources.

[4.29]The Tribunal did not find the respondent to be an unsympathetic employer. On the contrary, it took active and detailed steps to assist the claimant return to work after a period of illness from 16 February to 12 June 2022. The stage 2 absence review letter by RJ dated 6 June 2022 clearly shows the positive efforts made by the respondent to support the claimant with measures such as a phased return to work. As a result of the claimant’s grievance against CB, the respondent took positive steps to mend the relationship between the claimant and CB, and CB played an active part in that by conducting regular one-to-one meetings with the claimant.

[4.30]For the above reasons, the claimant’s claim of constructive unfair dismissal would also fail if the Tribunal had jurisdiction to deal with it. Judge C J Cowx 5 March 2025 REASONS SENT TO THE PARTIES ON 24 March 2025