Mrs D White v Northern Care Alliance NHS Foundation Trust: 2406050/2022

EMPLOYMENT TRIBUNALS

Case No 2406050/2022

Between

Mrs D WhiteClaimant

Northern Care Alliance NHS Foundation TrustRespondent

Before

Employment Judge Aspinall

Date 24 July 2024

JUDGMENT

The judgment of the Tribunal is that: The claimant’s complaint of disability discrimination, failure to reasonably adjust succeeds. Background

[1]By a Claim Form dated 9 August 2022 the claimant brought complaints of race discrimination and disability discrimination against her former employer and two named individual respondents. The claims against the individual respondents were rejected, though it is not clear by whom, on 10 August 2022 and this Tribunal endorses that rejection today on the ground that there were no ACAS certificates provided for the named individuals.

[2]The case came to a case management hearing before Employment Judge Warren. At that hearing the race discrimination complaints were withdrawn and the claimant confirmed that she brought no money complaints.

[3]The complaint before the Tribunal was solely a claim for failure to reasonably adjust in the provision of specialist software to enable her, as a person with severe sight loss, to carry out her duties as an Advanced Social Work Practitioner. The List of Issues

[4]The claimant confirmed that the only complaint is brought under Section 20(5) Equality Act 2010 for failure to provide auxiliary aids. Those aids were(a) Fusion software,

(b) training to be able to use Fusion (see paras 69-71 below as to how this was addressed) and

(c) bespoke scripting software. Earlier complaints about failure to provide disability impact training and Orcam read hardware and headphones were not pursued. At the request of the Tribunal a List of Issues was prepared and the following List was agreed. Reasonable adjustments (1) Did the lack of the auxiliary aids and training identified in the 10 December 2020 Access to work report (A2W) as follows: a) Fusion software b) Training 3 half days of technical training on Fusion Software c) Scripting assessment never provided- scoping exercise put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that she could not undertake the duties of a social worker without them? The respondent accepts that there was a substantial disadvantage to the claimant. (2) Did the respondent know, or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? The respondent accepts that it knew of the substantial disadvantage from December 2020. (3) What steps could have been taken to avoid the disadvantage? The claimant says the auxiliary aids should have been provided promptly following the December 2020 A2W report. (4) Did the Respondent take such steps as would have been reasonable to take to provide the training and auxiliary aids? (5) Did the Respondent provide the Claimant with the software and training recommended in A2W?

a. Was there a failure to provide the auxiliary aids between December 2020 to August 2021?

b. Was there a failure to provide the auxiliary aids between August 2021 to February 2022?

c. Was there a failure to provide the auxiliary aids from February 2022 until the Claimants ill-health retirement in August 2022? (6) When did the respondent take those reasonable steps if at all? (7) If there was no reasonable step taken, or an unreasonable delay in the taking of a step then did that failure or delay amount to a failure to make reasonable adjustment? (8) If the respondent failed what financial losses has the discrimination caused the claimant? (9) Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? (10) If not, for what period of loss should the claimant be compensated? (11) What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? (12) Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result? Documents 4. The parties had prepared a bundle of 545 pages which was provided electronically. The Tribunal did not see the OH referral forms nor the claimant’s application for ill health retirement. Format of the hearing

[5]The final hearing started on CVP but had to move to a hybrid hearing, due to sound problems, so that the claimant and both representatives and the Employment Judge were in person for the evidence and respondent witnesses, panel members and observers remote. For the closing submissions the respondent’s representative also appeared remotely. Adjustments and timetable

[6]An adjustment was made so that the claimant had her sister sitting beside her when giving evidence and reading relevant extracts from the bundle to her. This judgment is provided in font size 16 to assist the claimant to read it. Oral Evidence

[7]The Tribunal heard oral evidence from the claimant.

[8]The Tribunal did not hear from her former colleague Mr Owens-Cooper. The Tribunal read his statement and attached no weight to it because he was not questioned about it. The Tribunal did not need to make findings based on his evidence as the respondent accepted that his intervention in August 2021 led to a change in direction and a renewed effort to implement adjustments.

[9]The Tribunal heard evidence from Ms Hardman who was the claimant’s line manager and Ms Higgin who heard the grievance. The Facts

[10]The claimant began working for the respondent’s predecessor organisations on 24 November 2003. At the time of the matters complained of she was an Advanced Social Work Practitioner. The claimant had been diagnosed, as a child, with Retinitis Pigmentosa which is a degenerative sight condition. During her early employment she had minor adjustments to provide large print documents and a large font keyboard, a large monitor and support with transport. From around 2012 onwards the claimant required specialist software and the intervention of Access to Work was helpful in the provision of that software.

[11]The claimant’s role was as an advanced social work practitioner and her duties included managing her team, managing a case load, completing assessments, note and report reading and writing, attending and chairing multi disciplinary meetings. She needed assistive software to be able to perform those functions. This was not news to the respondent as the claimant had had sight impairment throughout her employment. They had known it was a degenerative condition. There was a history of them delaying to get equipment that she needed. In February 2017 the claimant experienced an acute deterioration in vision. She had three months off work as she adjusted to reduced vision. On return to work adjustments were made including a phased return with line management support, access to counselling, Access to Work assessment which resulted in a recommendation for the installation of software JAWS. There was a delay in its provision from June 2017 until January 2018 (not the subject of this claim). In July 2018 the claimant reduced her working hours to 18 hours per week.

[12]In March 2020 an occupational health assessment raised the possibility of the claimant transitioning from a working life to retirement. During the pandemic the claimant work from the office but experienced regular software crashes possibly because the respondent’s operating system had upgraded to Windows 10 and the JAWS software had been operating on Windows 7.

[13]At a sickness absence review meeting which took place on or around 3 December 2020 the claimant reported that the OH doctor had the right idea and that she wanted to leave next year as more and more of her work was on screen work. She said she did not feel effective and efficient on her own, it made her realise she did not have autonomy to do her own job anymore and that was not a safe way to practice. She said she did not want to be involved in mistakes and the note taker recorded “ill health retirement – it is a big step - look at Access to Work and OH before moving to this step”. A referral was made to OH, the claimant was pursuing an Access to Work assessment and it was agreed there would be a Teams meeting on 12 January 2021. December 2020 Access to Work assessment

[14]An Access to Work assessment was carried out on 10 December 2020 and made recommendations for use of a different software called FUSION, 3 half days of technical training in the use of FUSION and scripting assessment (to get bespoke software to assist the claimant). This meant that a provider called Blazie would undertake a scoping exercise then submit a quote to Access to Work for the cost of the scripting work. It was to make bespoke software for the claimant’s use to work across applications including Electronic Staff Record (ESR) Electronic Patient Record (EPR) Liquid Logic (a Trust application for work management) and to access Local Authority records and other resources. January 2021 sickness absence

[15]In January 2021 following a further acute decline in eyesight the claimant went off sick. She came to the belief that software would not be provided promptly and when provided might not be enough to enable her to perform her role. Occupational health assessment

[17]The respondent referred her for an occupational health assessment which took place by telephone on 23 February 2021. The OH report said: Ms White has been experiencing a medical condition which is progressive and unfortunately has no cure. This condition affects her sight and as per the current medical knowledge complete loss of eyesight is inevitable. In order to progress her application for retirement on the grounds of ill-health, we need confirmation from her specialist…… As soon as we get the information back from the specialist will make a final recommendation about her eligibility for the release of pension benefits on the grounds of ill-health. It made no mention whatsoever of the claimant waiting for software or other adjustment to be able to do her job. The August 2021 meeting and a focus on adjustments

[18]On 18 August 2021 the claimant, who had been off sick since January, met with Sarah Hardman, Jenny Leyland from HR, Michelle Slater from Unison and Mr Owens-Cooper the respondent’s equality, diversity, inclusion and engagement manager with a notetaker Ms Jones present.

[19]The meeting had been planned as an ill-health retirement decision making meeting but at the request of Mr Owens-Cooper was changed at short notice to be an absence review meeting. The claimant wanted ill-health retirement. She said that her eyesight had deteriorated so much that she did not feel she could come back to her role.

[20]Mr Owens-Cooper said that the claimant was not ill. She was unable to attend work because her adjustments were not in place and that the Trust had a duty to consider all adjustments before supporting ill-health retirement. It was agreed her pay would be put back to full pay during her absence, and not half sick pay as she was not sick but was prevented from working by the absence of adjustment. Her line manager Sarah Hardman was to pursue purchase of the auxiliary aids and there was to be a follow up meeting in September.

[21]On 8 September 2021 the claimant’s union representative wrote to JL on her behalf saying: I cannot wholly confirm that having the Fusion software in place would have resulted in me returning to work as I have never used that system. Also, my eyesight deteriorated further in January 2021…..never once was it mentioned that I should or could have been referred to the Equality, Diversity and Inclusion team……. I feel it is unfair that my managers or HR did not inform me sooner of this possible support or further assessments…

[22]On 17 September 2021 JL at HR wrote to her colleague to confirm that we didn’t pursue the Access to Work assessment until the meeting with E&I that took place in August 2021. She had no idea of timescales for the purchase of equipment but hoped to have them within the next few weeks.

[23]On 28 September 2021 Ms Hardman requested a purchase order for Fusion professional software, 3 half days of technical training, one ORCAM read device, one ORCAM earphones totalling £4350. On 1 October 2021 a purchase order was raised by the respondent to pay Blazie to do the scripting assessment.

[24]On 14 October 2021 Sarah Hardman wrote to the claimant to record the outcome of the August meeting. She put in writing that Stella Higgin had authorised the recommendations of Access to Work from 10 December 2020 on 15 December 20202 but that no follow up happened since this day. She recorded that the claimant said that her circumstances had changed since that assessment and Dean Owens-Cooper had said that a reassessment should be pursued. She recorded the claimant’s comment that she did not feel she could come back to work because her eyesight had deteriorated so much.

[25]On 21 October 2021 the claimant lodged a grievance saying that she was being disadvantaged because the occupational health and Access to Work recommendations were not being followed. During October and early November there were email exchanges between the respondent and Blazie to try and get the scripting assessment done. Blazie needed to see how the claimant used the various applications. On 18 October Ms Hardman emailed Blaize to chase up progress on the provision of the software. It was agreed there would be a live demonstration of use of the respondent’s systems over Teams so that Blazie could understood how the claimant would experience those systems. In the event that could not happen because it would have exposed live patient data to Blazie. The demonstration had to be postponed whilst confidentiality arrangements were put in place. Return to work

[26]On 28 October 2021 the claimant returned to work. FUSION had been installed on her old laptop which had insufficient memory to properly support its functionality; so that it did not work fluently without buffering and only worked in sessions at a maximum of 40 minutes.

[27]In November 2022 the respondent and Blazie were emailing each other about the need to set up the demonstration of “end to end journeys” to show how the claimant used the systems. There were ongoing email exchanges chasing people up and seeking out IT colleagues who may be able to support the process. There was a meeting with Blazie (which did not include the claimant) and an initial demonstration of the use of the applications.

[28]On 30 November 2021 Dr Prasad at OH wrote to Ms Hardman Deborah’s condition has worsened over time and she tells me that since April consultation her eyesight has deteriorated which has made day-to-day activities very difficult and she can only manage self-care at home as she is aware of where items are located. Having discussed her underlying medical condition in my opinion it may be difficult for her to return to her workplace. Once her equipment has arrived, I would suggest that she has a risk assessment carried out with her managers to identify what she is able to do at work. If it is not possible for her to carry out her contractual duties at work, I would suggest that she considers an application for ill-health retirement if this is feasible. Deborah continues to wait for her equipment to arrive so she can return to her workplace. I would suggest she has a risk assessment and is referred back to occupational health if she is unable to carry out her duties,

[29]The position was clear that the OH advice was that the equipment/software must be in place and a risk assessment carried out before any decision could be reached by the claimant as to whether or not she wished to consider ill-health retirement .

[30]On 7 December 2021, despite the equipment not being in place and no risk assessment carried out, JL made an OH referral for the claimant to be assessed for ill health retirement. The report said that it “shared the equipment recommendation to this referral” and that the claimant had the Access to Work report. The referral said: Deborah has an Access to Work report from December 2020 that is been implemented however Deborah has told me that due to her condition being degenerative she doesn’t feel this equipment is going to work long term The referral outlined what needed to be done. It said Assessment Process 1. Scoping looking into applications I.e. ESR have a list via screen share, not completed yet. NDA due to confidential information. 2. Testing 3. Report for access to work to authorise the funding 4. Deliver product The OH report went on to say Deborah is not able to undertake the role of duty manager or authorising work due to her degenerative condition At that point the claimant was working one day per week from home.

[31]On 8 December the claimant attended the grievance meeting. She was accompanied by Michelle Slatter her trade union representative. At that meeting she told Ms Hardman that she was not confident that even with all the equipment in place she would be able to perform her role. They agreed there should be a further OH referral to consider ill health retirement. On 10 December 2021 Ms Hardman wrote to the claimant to give an informal grievance update. She said that the claimant would be paid so that the sick pay for 23rd of June to 28 October 2021 was paid in full and not at half pay rate.

[32]The letter accepts the A2W review in December 2020 recommended new IT software, hardware and training and I apologise that this has not been fully implemented.

[33]Ms Hardman said that she had engaged Blazie and that they said they were in the initial installation phase and had been unable to provide a timescale for completion. A colleague in Procurement for the respondent was identified as someone who could send an email to Blazie to pursue commitments about end dates.

[34]On 14 December 2021 the claimant appealed the outcome of her grievance and wish to proceed to a stage II grievance hearing. She said she had been misled into thinking that she could take ill health retirement.

[35]On 24 December 2021 the claimant received a further apology email from Ms Hardman in relation to the lack of implementation of the software. She updated the claimant that Blaizie said it was still in the initial installation phase and could not give a timescale.

[36]By 17 January 2022 Blazie was still not able to give a timescale for when the bespoke software would be ready. This meant the claimant wasn’t able to do any of her ordinary social work duties. She was asked by Sarah Hardman to chair adult safeguarding meetings but these were taking place over zoom which again posed accessibility issues for her. In January 2022 the claimant asked the respondent to put her on medical suspension because the absence of software meant that she could not do her job. The medical suspension began on 15 February 2022.

[37]On 18 January 2022 Ms Hardman asked colleagues by email who she should be approaching to move the software issues forward. She said: This is in relation to getting the software Deborah requires in place so she can function in her role. This is becoming increasingly difficult situation to manage as I do not know who I’m supposed to be approaching to get the access that is required. I was unable to access any training system of EPR to do the walk through the company that building the systems for and had to get them to sign a confidentiality form, log onto the live system in my name to show them whatever needs to be able to do on the system. IT have been really unhelpful and that you are aware there is also an ongoing grievance in relation to the situation with Deborah. Does anyone have an appropriate contact in IT who I can liaise with to progress this situation please.

[38]By 24 January 2022 Lewis had been identified as a colleague who could work with Blazie and Ms Hardman was told that he was chasing them up. There was a meeting on 28 January 2022 between the claimant and Lauren McCabe from HR at which the claimant said that she agreed with Dr Mijares clinical opinion and that she was finding it difficult to learn to use a computer in a new way with a loss of sight. She had started fusion training but it was a slow process as the laptop could not support the software and she did not feel it was reasonable to expect that she be able to attain a competency level which would allow her to continue to work. The claimant spoke about her frustration in the time it had taken to get the Fusion software and training in place (there was still no timescale for the bespoke software). The claimant was protesting that as an organisation the respondent did not have a clear pathway to support staff who required digital adjustments.

[39]On 3 March 2022 the grievance stage II hearing took place by teams. Ms Higgin, Head of Service Adult Social Care chaired the hearing. Mr Owens-Cooper attended with the claimant’s TU rep Ms Slatter to provide support and make representations on her behalf. Mr Owens-Cooper said that there was no need for the claimant to be ill-health retired until such point as all other reasonable adjustment options have been fully explored. The respondent accepted that it had put the process of acquiring bespoke software on hold and acknowledged in the outcome letter that the timeliness of the procedure to fall short of being acceptable.

[40]On 5 April 2022 the claimant received the stage II grievance outcome from Ms Higgin. It said that Mr Owens-Cooper had told the respondent in August 2021 that he did not feel that the Trust should be looking at ill health retirement until such a point as all options for reasonable workplace adaptations and adjustments had been sought. Mr Owens-Cooper felt the claimant was not ill but needed adjustments to be able to do her role. The grievance outcome found that the claimant had not been misled about illhealth retirement. The outcome accepted that you have encountered extensive delays in the Blazie process of getting the software in place. Ms Higgin said, “I cannot fully understand at all points as to exactly why there has been such a delay in your equipment being fully useable. For this reason I have sought further investigation into the exact chronology of events to see if there is anything the Trust can learn or improve from this process in supporting people who need specialist software in a timely fashion”. Ms Higgin partially upheld the delay part of the grievance.

[41]On 4 May 2022 the claimant proceeded to a stage III grievance hearing. There was a short delay whilst the panel was convened. The meeting took place on 1 July 2022. The outcome was delivered on 8 July 2022. The Stage III grievance outcome found that between December 2020 and August 2021 the access to work software had not been ordered. This was because the focus had been on the claimant’s application for ill-health retirement. Between January and August 2021 the respondent had failed to contact the equality diversion and inclusion team, Mr Owens Cooper had only been asked to review the claimant’s case on 20 July 2021. The stage III grievance accepted “the management team made a number of failings in our consideration for a return to work with further adjustments or ill-health retirement”. The stage III grievance outcome gave the claimant an apology for the distress the lengthy process had caused her.

[42]On 4 July 2022 the claimant again saw the OH doctor. Dr Mijeres confirmed that she was not fit for work and repeated his support for ill-health retirement. He said based on the information received there are no further treatment options that could be offered to ameliorate Ms White’s difficulties with normal day-today activities including work. Hence she is permanently unfit for her employment.

[43]By 28 July 2022 the claimant had given up on the adjustments ever being made because(i) her historic experience of the respondent was one of lengthy delay in achieving adjustment and

(ii) she had had apologies for delay but no commitment to timescales going forward and

(iii) her line manager’s response to her saying that the Fusion couldn’t run properly on the laptop was an ineffectual “log it with IT” and

(iv) in the past she had waited for equipment and ended up buying it herself on Amazon (headphones). She reached the final conclusion that, as it stood, in the absence of aids, she could not do her job. She was fearful that she would lose her home. She confirmed that she wished to be dismissed and seek ill health retirement from her pension. Ms Higgin wrote on 28 July 2022 to confirm that there would be a meeting to review her employment. On 11 August 2022 the claimant attended a long-term sickness hearing chaired by Mr Williams. He terminated the claimant’s employment on the grounds of ill-health. She subsequently applied for her pension on grounds of ill health and it was awarded and back dated from 11 August 2022. Relevant Law

[44]Section 20 of the Equality Act 2010 provides:(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. …….. (11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. The EHRC Code of Practice on Employment (2011) at paragraph 6:13 says that an auxiliary aid is something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services for example the provision of a sign language interpreter or support worker.

[45]Section 21 provides:(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.

[46]In circumstances where the absence of an auxiliary aid places a disabled person at a substantial disadvantage in relation to a relevant matter when compared with persons who is not disabled, the employer is under a duty to take such steps as are reasonable for it to have to take in order to avoid the disadvantage. The test of reasonableness in this context requires an objective standard.

[47]The EHRC Code of Practice on Employment (2011) lists factors which might be taken into account when deciding if a step is a reasonable one to take, including, whether taking any particular steps would be effective in preventing the substantial disadvantage, the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer's financial or other resources, the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer. Acquiring or modifying equipment for work purposes is given as an example of a reasonable step for an employer to take to make adjustment for a disabled worker.

[49]In Mallon v Aecom Ltd

2021 ICR 1151

, EAT, the claimant had dyspraxia and argued that he required a reasonable adjustment to make his job application orally rather than online. The EAT held that an employment judge had erred in striking out the claim on the ground that the claimant would not be able to establish that the PCP of requiring an online application placed him at a substantial disadvantage in comparison with people who are not disabled. As a litigant in person, he had not put his claim as either a PCP or auxiliary service case but had simply stated that he needed to be allowed to make an oral application rather than having to complete an online form because of his dyspraxia. The EAT decided that the Employment Tribunal had been wrong to interpret his claim solely as a PCP claim, and that it could have been interpreted as an auxiliary service claim under section 20(11).

[50]For the purposes of the Equality Act 2010 ‘auxiliary aid’ is drawn widely. It can include technology such as software or hardware. An auxiliary service can include service such as personal assistant, support worker or interpreter.

[51]There is no obligation on the disabled person to say what the adjustment should be. It is for the employer to assess the disadvantage and seek to remove it. However, the EAT found in Project Management Institute v Latif

[2007] IRLR 579

, EAT that while the nature of the adjustment that is lacking need not itself come from the claimant, it does seem that there must at least be before the tribunal facts from which, absent any innocent explanation, it could be inferred that a particular adjustment could have been made. Otherwise, the respondent would be placed in the 'impossible position' of having to prove the negative proposition that there was no reasonable adjustment that could have been made. Further, the EAT emphasised the importance of tribunals confining themselves to findings about proposed adjustments which are identified as being in issue in the case before them in Newcastle City Council v Spires

UKEAT/0034/10

[52]If nothing the employer can do will have the effect of getting the disabled person back to work, it cannot be reasonable for the employer to have to do anything at all. The adjustment must have a prospect of removing the disadvantage. It does not need to be a good or real prospect, just a prospect, that if the reasonable step were taken the disadvantage might be removed. Leeds Teaching Hospital NHS Trust v Foster

UKEAT/0552/10

, [2011.

[53]The purpose of an adjustment is to enable or facilitate a return to work, to give the employee a chance of that, and if the adjustment will not achieve that purpose then it cannot be reasonable for the employer to have to make it. Conway v Community Options Ltd

UKEAT/0034/12

, [2012]. It will be a matter for the Tribunal as to at what point in a period of deterioration in a degenerative condition the situation becomes irretrievable, so that the adjustment will not facilitate or enable work. Until that point the duty to make adjustments persists. Where the stage had been reached that the consequences of the disability were irretrievable the duty to make adjustments was therefore said to have fallen away HM Prison Service v Johnson

[2007] IRLR 951

. Applying the Law to the Facts

[54]The following section relies on the headings from the List of Issues: LOI:1 Did the lack of the auxiliary aids identified in the December 2020 A2W report put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that she could not undertake the duties of a social worker without them?

[55]The claimant could not see to access records and reports that she needed to see on various applications and software that the respondent used. She needed to be able to access them with limited sight. The failure to provide the Fusion Software and training to use it and a bespoke piece of software to be produced from a scripting assessment put the claimant at that disadvantage. She was rightly concerned that if she could not see the relevant information she did not have all she needed to make safe decisions. She was concerned as a professional practitioner that that put her and those she managed at risk, it could put her professional practice certificate at risk. The disadvantage meant that she could not safely perform key parts of her role. It was a substantial disadvantage. The respondent accepted that there was substantial disadvantage. LOI:2 Did the respondent know, or could it reasonably have been expected to know, that the claimant was likely to be placed at the disadvantage?

[56]The respondent conceded that it knew at all material times that the claimant was placed at a substantial disadvantage. It had knowledge of disability and substantial disadvantage in relation to the particular failures to provide Fusion software and training and a bespoke scripting assessment from December 2020. LOI:3 What steps could have been taken to avoid the disadvantage?

[57]The respondent analysed the duty to take reasonable steps in three time periods: December 2020 to August 2021, August 2021 to February 2022 and February 2022 to August 2020. The duty arose in December 2020 and continued until the point at which, if reached, no adjustment would have provided a chance or prospect of removal of the disadvantage. Whilst those time periods may have assisted the respondent to put its case about why it was not reasonable for it to have to act during each of those periods because of the claimant’s position (such as that she was seeking ill health retirement or was off sick or was advised by Dean Owens-Cooper to get adjustments first and hold off ill-health retirement decision making), the duty remained on the respondent irrespective of whether the claimant was off sick and or exploring options such as ill health retirement throughout the period from December 2020 until 11 August 2022.

[58]The steps that could have been taken to avoid the disadvantage were the acquisition and installation of fusion software on a fully functioning laptop, the provision of 3 half days training for the claimant to learn how to use that software at time when the software was running effectively on hardware that was not cutting out and the scoping and commissioning of the writing and installation and use of a piece of bespoke software to enable the claimant to work across the respondent’s software applications and platforms so as to be able to do her job. In deciding that these are reasonable steps the Tribunal had regard to the size and resources of the employer. It is an NHS Trust. There was an A2W report and funding available. The provision of the software and training to the claimant would not disrupt other people’s work but rather enable her to minimise reliance on others and work as independently as possible. It did require the Trust to work with an outside provider for the bespoke scripting software and the Tribunal acknowledges that that may have taken longer than being able to commission things in house.

[59]The Tribunal rejects the respondent’s submission that it was not reasonable for it to have to take any steps whilst the claimant was a) off sick from January 2021 and or b) expressing interest in ill health retirement.

[60]In relation to being off sick the purpose of an adjustment is to get a person back to work. Often, an employer will take the view that it doesn’t need to do anything until the employee is fit for work, and an employee cannot return to work unless adjustments are made. The duty falls on the employer from the point of knowledge until the disadvantage is removed. This Tribunal does not accept that the duty is necessarily lifted or that an employer is necessarily exonerated from having to take action during periods of sickness absence. What are reasonable steps will depend on the facts of the case.

[61]Of course, an employer will not wish to intrude on sickness absence and there may be cases where it is appropriate for any action on adjustments to be put on hold, but where, as here, the absence relates directly to the need for the adjustment, there could and should have been progress on the A2W recommendations. The respondent did not and could not have known at that time how long sickness absence would last. In not pursing the purchase of the Fusion, Fusion training and bespoke software during the claimant’s sickness absence from January 2021 through to October 2021 and throughout her return to work in 2021 and subsequent absence and up to termination of employment the respondent did not take reasonable steps to put the adjustments in place.48. The respondent was unreasonable in failing to take steps on the basis that the claimant was expressing an interest in ill health retirement. The claimant was clear in oral evidence that she would not have asked for ill-health retirement if the auxiliary aids had been provided. It was put to her that this was not what the documents showed her to have been saying at the time. At the time she was saying she wanted to explore ill-health retirement from October 2020, before the Access to Work report in December 2020 and throughout the period thereafter, even bringing a grievance in October 2021 saying that she had been misled and the outcome she wanted was ill-health retirement. Her response was that nothing had been done to get the adjustments in place and she was concerned that her professional registration would be at stake if she tried to work and made mistakes because of accessibility issues. She said she had had enough, did not think the respondent would get the aids in place (that was what experience had shown her) and was fearful of losing her home so that ill-health retirement was at least a way of securing her finances.

49. The Tribunal accepts the claimant’s evidence that she always fought for other people but that she was broken and had no energy to fight to keep her own job, she had lost all faith in the respondent making the reasonable adjustment, she needed to remain in work and she needed financial certainty. The Tribunal accepts the claimant’s submission that her choice about the ill health retirement must be viewed through the prism of the failures to reasonably adjust, so that she was left with no other alternative. It also accepts the claimant’s very frank evidence that even if the adjustments had been in place she may not have been able to fully perform in her role. She was concerned that her sight loss was such that even with adjustments she may not meet the standard of competency needed in her role. She said this in her letter of 8 September 2021.

[62]Dr Mijares’ report, which is advice and recommendation to management only, operates on the underlying assumption that a degenerative sight condition renders a person permanently unfit for employment. This is made explicit in the letter dated 28 July 2021 when he says: “There are no further treatment options that could be offered to ameliorate Ms White’s difficulties with normal day to day activities, including work. Hence, I consider her permanently unfit for employment.”

[63]The Tribunal did not hear evidence from Dr Mijares but is concerned that he appears to equate (in the use of the word hence) visual impairment, partial or total sight loss, with being permanently unfit for work. There is no evidence of Dr Mijares having explored the component parts of the claimant’s role and the impact that the A2W recommendations would have had on her ability to perform each of those parts. Those would have been reasonable steps to take. His letter was no doubt written in support of any application for ill-health retirement at a time when the claimant could not see any other option, but at the time it was written, the A2W recommendations had not been actioned so neither the claimant nor OH nor her manager could know what if any part of her role the claimant could be fit to perform with adjustment. The duty lay with management to see what could be done to make adjustments to get the claimant back to work. It relied on an OH report that had not looked at what could be done but focused solely on supporting ill health retirement.

[64]By contrast Dr Prasad’s OH report of 30 November 2021 stated that once the equipment had arrived, and a risk assessment had been carried out, then if it was not possible for her to carry out her duties at work the claimant could consider ill health retirement. The respondent did not follow the sequence of events set out in Dr Prasad’s report.

[65]The interest in ill-health retirement and support for it was not a reason for the respondent not to adjust. The claimant was sending mixed messages, initially that she wanted to go and later that she wanted adjustment and then again that she wanted to go but it is not for the claimant to say what the adjustment should be or to switch the duty on the respondent on and off. The reasonable steps were those in the A2W report, Dr Prasad’s letter and Mr Owens-Cooper’s advice, adjust first and then consider if the claimant can or cant do her job. What if the adjustments had been put in place and the claimant could have worked effectively and still said she wanted to take ill-health retirement. It was not a matter for her. The decision lay, on termination of employment on medical grounds, with the respondent and on ill-health retirement ultimately with the decision makers in the pension scheme. The respondent failed to take reasonable steps to act on the recommendations throughout. The claimant’s views about staying or going were not relevant and not a reason that could exonerate the respondent from its duty to adjust. LOI:4 Did the Respondent take such steps as would have been reasonable to take to provide the training and auxiliary aids? LOI:5 Did the Respondent provide the Claimant with the software and training (the “auxiliary aids”) recommended in the 10th December 2020 Access to work report (p.371-91)? a) Was there a failure to provide the auxiliary aids between December 2020 to August 2021? b) Was there a failure to provide the auxiliary aids between August 2021 to February 2022? c) Was there a failure to provide the auxiliary aids from February 2022 until the Claimants ill-health retirement in August 2022? LOI:6 When did the respondent take those reasonable steps if at all ? Fusion software

[66]The Fusion professional software was recommended in December 2020. In August 2021 Mr Owens-Cooper argued for the provision of the auxiliary aids before any decision on whether or not to support ill health retirement could be made. On 14 October 2021 Ms Hardman acknowledged that there had been no follow up since the permission to order the software on 15 December 2020. The claimant came back in to work on 29 October 2021. On 1 November 2021 there was still confusion as to whether or not the Fusion software had been ordered and how it would get installed on the claimant’s laptop. In November 2021 Dr Prasad set out that it should be adjustments first then a risk assessment and only then if the work could not be done, consideration given to ill-health retirement. The grievance outcome found that a purchase order had been raised on 13 October 2021. It is not clear when it was actually ordered. In the end the claimant had to pursue ordering it herself. The Tribunal rejects the respondent’s submission that Ms Hardman and others were acting reasonably to acquire and install Fusion from December 2020 to November 2021.

[67]In December 2021 permission was granted from the IT department to download the Fusion software to the claimant’s laptop. It is not clear when that was downloaded though probably at some date in early December 2021. The claimant then experienced problems because her laptop was deficient. It could not host the software without dropping out after around 40 minutes. She had some Fusion training in December but the laptop kept dropping out. The problem was the laptop did not have capacity to run the software. She told Ms Hardman in December 2021 that the laptop did not have capacity. Ms Hardman told the claimant to log the issue with IT. It’s not the job of the visually impaired person to action the reasonable adjustments that the respondent is required by law to make. Ms Hardman did nothing herself to procure a new laptop for the claimant but made the old laptop that lacked capacity the claimant’s problem. Ms Hardman’s answer in cross-examination as to why she did not pursue getting a new laptop so the Fusion could run was “what would that have achieved ?”. The Tribunal finds that she had formed a fixed view that the claimant could not do her job, that complying with the recommendations would be futile.

[68]On 7 January 2022 the claimant had still not been able to use the Fusion software effectively because of problems with the laptop. At that point the licence key that was the permission to use the software had then expired so that even if the laptop had been adequate the passage of time meant the Fusion licence was now an issue. The claimant, despairing, again went off sick. At all points up to termination of employment the claimant had an inadequate laptop that could not run the Fusion software effectively. Fusion training

[69]The claimant’s claim for failure to provide training cannot be brought under section 20(5) as training is not an auxiliary aid. In Mallon above the EAT approved an approach in which the Tribunal assisted the litigant in person in looking at the thing he complained about and applying relevant law. In other cases too higher courts have encouraged tribunals to assist in the interpretation of PCP’s to fit the particular mischief that a claimant complains about.

[70]In this case the claimant is represented. In her claim form she clearly states that she was not provided with training. Both representatives accepted that training is not an auxiliary aid. What they did not do is amend the List of Issues to plead a PCP or auxiliary service. The training issue is there on the list. The parties have had the benefit of sensible and pragmatic representation. Each side addressed the failure to provide Fusion training in their cross-examination of the other’s witnesses and each made detailed closing submissions about the Fusion training.

[71]The Tribunal, having heard the evidence and submissions, but without having expressly consulted the representative on this point, considers it in the interests of justice to address the claimant’s failure to provide Fusion training complaint as the failure to provide an auxiliary service within section 20(11). The service being the provision of a trainer to teach the claimant how to use the software.

[72]The Tribunal finds that although there was an attempt to provide some training it was wholly ineffective because the respondent had not ensured that there was hardware on which the software could operate effectively. Training in those circumstances was useless. It would have been reasonable for the respondent to have provided the training within one month of the Fusion being installed on a laptop on which it could work effectively. By the end of February 2021 the three half days training ought reasonably to have been undertaken.

[73]Not providing training put the claimant at substantial disadvantage and in failing to provide it (ineffective provision because of laptop not able to support the software or training) the respondent failed to reasonably adjust from 1 March 2021 to the termination of employment. Bespoke scripting software

[74]The scripting assessment was recommended in December 2020. Mr Owens- Cooper raised the need for this to be done urgently in August 2021. The first meeting with Blazie to begin the process of understanding what was needed to provide the scripting assessment was arranged for 10 January 2022. The meeting took place on 17 January 2022. That was thirteen months after the A2W report and almost six months after Mr Owens-Cooper said it was urgent. There was then much email activity and issues arose such as proper precaution for the use of patient data or accessing live systems but, as at termination of employment there was still no date from the respondent as to when the scripting software to enable the claimant to work across software and systems was in place.

[75]The Tribunal rejects the respondent’s position as stated in Ms Higgin’s grievance outcome letter dated 20 June 2022 that the delays were outside of the Trust’s control. Although there was much activity, with emails flying about Blazie software, and Ms Hardman asking who could help her with this, there were no outcomes. The A2W recommendations were not implemented.

[76]The Trust delayed from December 2020 to January 2022 and then, when it rapidly became apparent that Blazie would not commit to providing a delivery date, it delayed further. The respondent could have considered commissioning an alternate provider. It did not do so. It delayed further, unreasonably in awaiting responses from Blazie. The respondent did not even get to the stage of completing a scoping exercise and getting costs and delivery timelines from Blazie. The claimant never met with Blazie.

[77]The creation of bespoke software was undoubtedly a complicated task. The claimant worked across different databases and applications so that bespoke software was needed. It was never provided. This amounted to a failure to reasonably adjust from December 2020 to termination of employment.

[78]The Tribunal rejects the submissions that being off sick or expressing an intention to take ill health retirement exonerated the respondent from its duty to reasonably adjust.

[79]Provision of Fusion software and training (auxiliary service) and provision of bespoke software to allow the claimant to work across applications were reasonable steps for the respondent to take. It would have been reasonable to have ordered and installed the Fusion software on a laptop on which it could function effectively within one month of the A2W report so by the end of January 2021, with as above training on that software completed by 1 March 2021.

[80]It would have been reasonable to have scoped the task of writing a bespoke piece of software and getting costings for that within three months of the A2W report in December 2020 and then to shop around and commission and work on design and installation within a further three months. The Tribunal has not had evidence on this point from specialist providers so can only use its own robust common sense and apply a reasonable period for that work, having heard submissions from the parties. By June 2021 it would have been reasonable to have had bespoke software in place to enable the claimant to work across her applications.

[81]Without determining the impact training point the Tribunal finds that if those sessions had been undertaken it is possible that the claimant, who was dealing with the devastating impact of deterioration in her sight, might have withdrawn her expressions of interest in retirement. In April 2021 she was 48 years old and a senior and experienced advanced social work practitioner. Without the impact training, which may have given her a more positive mindset at that time, and, with her experience of the respondent’s historic delay in providing adjustments, and her own recent experience of rapid deterioration in her eyesight and her financial fears, she saw no option but ill-health retirement. Even if the adjustments had been made the claimant may still have felt she could not perform at a level of competency she was happy with and may still have wanted to go. She has been very frank about that throughout. Conclusion LOI: 7 If there was no reasonable step taken or an unreasonably delay in the taking of a step then did that failure or delay amount to a failure to make reasonable adjustment ?

[82]Yes, the respondent failed to adjust in provision of the auxiliary aid of Fusion software from January 2021 to August 2022, the provision of an auxiliary service of a trainer on Fusion from March 2021 to August 2022 and the provision of bespoke software from June 2021 to August 2022.

[83]In an effort to assist the parties to avoid the need for a further hearing the Tribunal considered provisionally, if future losses are pursued, which is not clear from the Schedule of Loss provided, what was the percentage chance of the claimant remaining employed with adjustments in place. The Tribunal expresses the following provisional views; the claimant was throughout interested in ill health retirement. She asked for it to be considered before the A2W report. She then had further sight deterioration. She was concerned that even if with adjustment she could not function at the level of competency she would want. She brought a grievance all the way to stage III on the basis that she had wanted, and thought she was being processed towards, ill-health retirement. She repeatedly said she agreed with Dr Mijeres that she could not work at all. She changed position a little after Mr Owens-Cooper’s involvement but still pursued her grievance about wanting ill-health retirement. Taking that into account the Tribunal’s provisional view is that there would be a 1:3 chance of her having remained employed and probably in a less senior role, with the A2W adjustments in place and a 2:3 chance that even with timely adjustments, because of the extent of her sight loss, she would have retired.

[84]The Tribunal has listed a remedy hearing and made case management orders to prepare for that hearing. The final points on the list of issues dealing with remedy can be addressed at that hearing. Employment Judge Aspinall Date: 24 July 2024