Dr E Kariki v Wrightington Wigan and Leigh Teaching Hospitals NHS Foundation Trust: 2411744/2023

EMPLOYMENT TRIBUNALS

Case No 2411744/2023

Between

Dr E KarikiClaimant

Wrightington Wigan and Leigh Teaching Hospitals NHS Foundation TrustRespondent

Before

Employment Judge Cookson

Date 30 July 2025

JUDGMENT

It is the unanimous decision of the Tribunal that:

[1]The Claimant’s claim of direct disability discrimination is not well-founded and is dismissed.

[2]The complainant’s claim of discrimination because of something arising in consequence of disability is not well founded and is dismissed.

[3]No order is made in relation to the deposit paid by the Claimant in relation to complaint 2 above on the basis that the Claimant has appealed against the making of the Deposit Order and in those circumstances, it would not be in accordance with the overriding objective for us to reach conclusions about what should happen to the deposit.

REASONS

[1]The Claimant is a radiologist. This complaint related to the withdrawal of an offer of a position as a senior clinical fellow in musculoskeletal radiology at the Respondent which the Claimant alleges was withdrawn either because of her disability or for a reason arising out of her disability.

[2]The Claimant undertook early conciliation between 1 September 2023 and 13 October 2023 and lodged her claim on 13 November 2023.

[3]The Claimant brought claims of direct disability discrimination and discrimination because of something arising in consequence from disability following the withdrawal of the conditional job offer on 2 June 2023. The Claimant says that she is disabled by anxiety and depression. The Respondent has accepted that the Claimant was disabled because of depression between November 2020 and October 2022, but not that the Claimant was disabled at the time that she said she was discriminated against in this claim. This point was not actively pursued in submissions by the Respondent, but in the absence of formal concession about disability we have made findings about that below.

[4]There was a case management preliminary hearing in this case to identify the legal issues before Employment Judge Cline on 3 July 2024. He determined that the Claimant’s complaint under Section 15 of the Equality Act, that the reason for the unfavourable treatment that she complains about was something arising in consequence of her disability where the something arising was the need to make reasonable adjustments, had little reasonable prospect of success and ordered her to pay a deposit of £150. The Claimant complied with that deposit order, and we considered that claim at this hearing. The Claimant had subsequently appealed the decision to make that deposit order to the EAT. We have explained below the decision that we have made in relation to what we should do about the deposit being held by HMCTS.

[5]The final hearing in this case had been listed in person. Over the lunchtime on day one the Tribunal was informed that Alexandra House, where the Employment Tribunal is based, was being closed at short notice due to safety concerns being raised about the building. This made it necessary to adjourn the first day of the hearing, but we were able to reconvene the following day by CVP. The Tribunal is grateful for the resilience and flexibility shown by the parties in the circumstances. Unfortunately, however this did mean that the Tribunal ran slightly short of time and although we were able to complete the evidence over the days listed for the final hearing, it was necessary for the hearing to be reconvened in order to hear submissions and for the Tribunal to undertake its deliberations. In the circumstances the Tribunal decided to reserve its decision.

[6]At the start of the hearing the Claimant presented the Tribunal with details of some adjustments she would require because of her disability, which we were able to put in place.

[7]In reaching our judgment we considered the following:a. A bundle of documents which runs to some 920 pages although the Tribunal have only considered documents which they were taken to in evidence and cross examination. A small number of additional documents were added to the bundle in the course of the hearing.

b. The evidence contained in witness statements for the Claimant in relation to her disability and in a second statement relating to the events of the claim together with her oral evidence;

c. The evidence contained in witness statements for the Respondent from Dr R Tuano-Donnelly (at the relevant time the Acting Clinical Director of Radiology) and Mr Lee Unsworth (Directorate Manager for Radiology Cancer Services and Pathology) together with their oral evidence.

d. Oral and written submissions from Ms Rumble and written submissions from the Claimant.

Findings of Fact

[8]We have made our findings of fact in this case on the basis of the materials before us, taking into account contemporaneous documents where they exist and the witness evidence. We have resolved conflicts of evidence on the balance of probabilities, taking into account our assessment of the credibility of witnesses and the consistency of their evidence with the surrounding facts. We have not made findings of fact in relation to every matter which was contested in evidence before us, simply those which were material to the determination of the legal issues in this case. Claimant’s Disability

[9]In disputing that the Claimant was disabled at the relevant time, in the evidential case the Respondent pointed to the absence of records showing the Claimant was visiting her GP after October 2022 for reasons related to stress or mental health and that her prescription for medication had ended in April 2022. The Claimant told us that she had not found the support provided by her GP to be very helpful. She received psychological counselling from July 2020 until November 2021 with the British Medical Council services and Greater Manchester Mental Health Services. After that time, she received psychotherapy from a psychologist in Greece and she continues to be under the care of a consultant psychiatrist there. The Claimant explained that she has found it easier to discuss her situation in Greek which is her first language.

[10]In the initial statement about disability provided to the Tribunal and the Respondent following an order made by Employment Judge Slater, the Claimant explained that she had been diagnosed with mixed anxiety/depressive disorder and adjustment disorder in November 2020 and a report from the consultant confirmed that she was prescribed anti- depressant medication in November 2020 until April 2022 and, after a relapse, she has been prescribed antidepressants again since 24 July 2023. Her treatment continues. Elsewhere the Claimant reports first experiencing work related stress and anxiety in May 2017 and having symptoms of depression since August 2020.

[11]In terms of the impact on her ability to undertake day to day activities, the Claimant describes difficulty in decision making and organising her day-to-day life, for example planning a trip to a bank or professional meeting or appointment. She describes feeling profoundly worried and has thought about failure and disaster and has experienced difficulties carrying out simple tasks like washing, going for a walk and reading a book. She finds social interaction difficult and tends to avoid social situations and has also experienced difficulty sleeping and has altered eating habits. She also describes unpredictable crying spells, irritability and having suicidal thoughts. What was unfortunate was that despite clear instructions being given by Employment Judge Slater, the Claimant had failed to provide very clear dates about when and over what period the Claimant had experienced these impacts on day-to-day activities.

[12]Despite our concerns, we concluded that this evidence was consistent with the report from her the Claimant’s consultant psychiatrist albeit the Claimant had unhelpfully redacted that report without the leave of the tribunal. The reports records that when the Claimant first presented with symptoms, she was experiencing “depressed mood, crying spells, social withdrawal, and anhedonia, feelings of despair, sleep and appetite disorder, worthlessness and anxiety symptomology with frequent somatization, mainly with feelings of palpitations”. It also reported that the Claimant’s functionality on every level was noted with severe reduction including personal and professional activities.

[13]It is important that the Tribunal makes clear concerns about the amount of weight we could attach to this report. It had been heavily redacted by the Claimant without explanation, and we recognised the possibility that the report contained information which would be unhelpful to her. We therefore did not attach the same weight we might have attached to an unredacted report, but nevertheless despite our concerns we could see evidence which corroborated the Claimant’s own evidence.

[14]The report notes that the Claimant’s symptomology greatly improved as a result of therapeutic interventions. No date is given for that improvement. The report then refers to renewed functional decline and intensity of symptomology after a relapse. The only date given by the consultant for that is July 2023 and the report, perhaps because of the redactions, is somewhat unclear. The Claimant says that she first experienced a relapse of symptoms in November 2022.

[15]In our conclusions we have explained what we determined on the issue of disability. The offer of employment and its withdrawal.

[16]The Respondent is an NHS Foundation Trust.

[17]The Claimant applied for the post of senior clinical fellow in muscular skeletal radiology (“the Post”) at the Respondent on 15 December 2021. She was interviewed on 7 February 2022 by Dr Raquel Tuano-Donnelly who was a consultant radiologist and at the relevant time was acting clinical director of radiology, and Mr Lee Unsworth, who at that time was the directorate manager for radiology and cancer services.

[18]At the time of her application for the Post, the Claimant was working at Manchester Royal Infirmary (MRI). On the application form she had been asked to provide details of up to three referees, one of whom it was required to be “your line manager or employer”. What that means for a doctor with clinical supervision is not clarified on the form. The Claimant provided details of Dr Lois McDonald and Dr Yousef Alwan both employed by MRI as her line managers/employers, but it seems she had not asked them about providing references in advance. There were equal opportunities questions on the form. The Claimant said this about disability “I do not wish to disclose whether I have a disability”.

[19]The interview went well, and the Claimant was formally offered the post on 22 February 2022. The offer was conditional and was subject to the following six pre-employment clearances: verification of identity documents, right to work checks, qualifications and professional registration, current DBS certificate and membership of DBS Update Service, employment history and references and OH clearance. The letter says: “With your help and cooperation we aim to complete your clearances and issue your unconditional offer within five weeks where this is within our control”. You cannot agree a start date for your new role until all clearances are received and deemed satisfactory. I will confirm your unconditional offer of the post by email, at which time you can contact your line manager to agree a mutually convenient start date and first date reporting arrangements”.

[20]Dr Tuano-Donnelly told us that she had been particularly impressed by the referees the Claimant had offered. Dr Lois McDonald in particular is someone she holds in high esteem and Dr Tuano-Donnelly told us this was a significant factor in the Claimant being offered the job. Based on our industrial experience, the Tribunal found it somewhat surprising that Dr Tuano-Donnelly placed so much weight on the identity of referee without knowing what the reference would say, but we accepted that her evidence about that was genuine, and we found no reason not to accept that evidence.

[21]By mutual agreement the start date for the Claimant was deferred for a year with the result that the Claimant was due to begin her new employment with the Respondent on 2 August 2023.

[22]On 23 February 2022, when the offer of employment had originally been made, the Claimant had asked for clarification in relation to references and whether she should provide two references as referred to in the conditional offer letter. She explained that she had provided referees in her application without seeking consent for those individuals to be contacted. Her email to the Respondent said this: “May I ask for clarification please in relation to the required references. In the conditional offer letter, it is noted that I am required to provide two references. This is absolutely clear. However, colleague references are sent directly by the referees. Could you please clarify whether I should provide two referee details?. I have provided referee details in my application, without providing consent for them to be contacted prior to my interview, and I wonder if any of these referees may have already or is planned to be contacted? Should I need to approach my referees directly at this time, I wonder whether they would need to send the references to WWL [the Respondent] or to me, in order for me to forward the letters to WWL.”

[23]The recruitment officer replied as follows “Yes we require you to provide details of two times referees that will cover your past three years of employment. We won’t however need these until the May prior to your start date. There isn’t anything required from you at the moment, someone will be in touch in May 2023 to commence pre-employment checks. If there is however anything you require in the meantime you of course are able to contact us.” On 26 April 2023 references were requested from the referees outlined in the Claimant’s original application. The Claimant was not contacted about beforehand.

[24]On 2 May 2023 the Claimant wrote to the medical recruitment officer, Ms Hale, after receiving a re-issued conditional offer letter and an email about the ID and pre-employment check process. The Claimant said this “I am writing in relation to my references. In the period from my application in December 2021 to today my referees have changed. I am not sure if the referees listed in the application have been contacted; I have not received an email asking whether they can be contacted, and I want to make sure they will not be. Should the referees originally listed have been contacted, the requests need to be retracted. Since this matter is of utter importance, could you please let me know who I should send the details of the referees who should be contacted in relation to my job offer at WWL?”

[25]Dr Tuano-Donnelly and Mr Unsworth both told us that they regarded this changing of referee details as being very significant and that it would require explanation. However, the recruitment officers did not tell the Claimant this nor did they warn her that this matter might be of concern. We were not told why the Claimant was not informed about that. This was just one of the reasons why the Tribunal were surprised by the absence of any evidence from the Respondent’s recruitment team given the significance of the actions of that team in this case. How we took that into account is explained in our conclusions.

[26]On 4 May 2023 Ms Hale the medical recruitment officer emailed the Claimant to tell her that they had been trying to contact Dr Lois McDonald for a reference, but no response had been received and asking the Claimant to contact Dr McDonald to ask her to respond as soon as possible. The Claimant was warned that if the Respondent was unable to obtain a satisfactory reference that may result in the offer of the job being withdrawn.

[27]On 5 May 2023 the Claimant raised her concern that the original referees had been contacted despite her email of 2 May. On 5 May 2023 the Claimant emailed Sara Atcha the Respondent’s recruitment manager to point out that she had already contacted the recruitment team in relation to referees that she had included in her original application, indicating that they should not be contacted. She also pointed out the referees would not cover the last three years of her employment and training activity as required.

[28]The Claimant went on to explain that she had updated referee details and these new individuals wanted to provide personal email addresses and asked what the situation would be if there is a gap in employment. Ms Atcha replied on 9 May, she said this: “To clarify the referees provided thus far only cover up and until December 2021 at the point you submitted your application and therefore does not cover the full three year period to May 2023. We do need the reference from your previous employer/line manager at MFT. We cannot accept a work reference from a personal email address so would not be able to satisfy employment history, we can only request a character reference from a personal email address. In regard to overseas employment I understand that not all employers have a work email system so we have a process to verify a reference provided. If you return the offline form I will be able to advise further regarding any gaps in employment”.

[29]The following day the recruitment officer contacted Mr Unsworth to express concern that for the last ten working days the team have been trying to contact Dr Lois McDonald and Dr Yousef Alwan to provide the references and had not a reply. The email continued by recognising that there may be a legitimate reason for the lack of response, for example that the referee is on holiday, but if the team were unable to establish a legitimate reason for the lack of response the options would be withdrawing the offer of employment or asking the candidate to provide an alternative referee. On 12 May Ms Atcha contacted the Claimant to warn her that a number of aspects of the pre-employment checks were still outstanding and that as a result the Respondent had no option but to consider withdrawing the conditional offer.

[30]On 17 May 2023 the Claimant returned various of the pre-employment forms and provided details of three new referees, Dr Whitehouse who she has identified as the Head of the Unit at MRI, and two others, one a colleague at another institution with whom she had worked on a research project, and an academic who had worked with her while she was teaching. The Claimant gave her most recent employer as Keel University and stated that she had been working as a lecturer in diagnostic imaging. The offline form the Claimant returned contains various questions marked as monitoring of information in relation to the Equality Act which were not completed. This included questions about disability status which were left blank.

[31]On 25 May 2023 the Claimant submitted an online occupational health (“OH”) questionnaire to Wellbeing Partners which we have been told is a joint venture between the Respondent and another NHS Trust. The Claimant told us, and it was not disputed, that Wellbeing is physically based at the Respondent, and it uses the Respondent’s servers for the purposes of processing data.

[32]In the reply to the questionnaire the Claimant answered “no” to the question “do you have any psychological illness/impairment/disability which may affect your work?”, but then in response to the question “if yes please give details” stated “depression”.

[33]In answer to the question “do you think you may need any adjustments/assistance to help you do the job or have you required any workplace adjustments in your previous posts?” She answered “yes” and added “previous adjustments requested during a period suffering from symptoms of depression that affected my everyday life. These included flexible working, environment/access to a space that is quiet, safe, with fresh air and with adjustable light conditions, coaching/mentoring”. In relation to the question “are you waiting investigations attending hospital, taking medication or receiving treatment including pills, tablets, inhalers, injections from a health profession?” she answered “yes” and disclosed that she was receiving counselling from a psychologist with periodic consultants with a psychiatrist, but was not currently on medication. In relation to the question “do you wish to discuss any health issues with a member of the occupational health team” she stated “yes” that she would “like to discuss any options that would be available if needed”.

[34]The Claimant had completed the OH questionnaire on-line. The Claimant told us that the document in the hearing bundle, which appears to be a printout of her answers, did not look the same as when she had completed the form. The discrepancies were not explained but the Claimant did not suggest that she had given different answers to questions or there was missing information. There was another document in the hearing bundle which appears to be a printed copy of OH questions, although the questions do not appear exactly the same as the electronic version. That document appears to show a first page that the Claimant would see when she completed the online form which includes a privacy notice. The Claimant disputed that she had seen the privacy notice and that the document included later in the bundle was what she had seen. It was put to her in cross examination that she must have clicked through a screen during which some sort of consent had been provided. Although the evidence before us was not as clear as perhaps it could be, we accepted that it was more likely than not that the Claimant had clicked a consent screen which included the privacy notice because the Claimant would have to have been provided with some information about how her sensitive personal data was to be processed and the Claimant told us that she could not recall exactly what she had seen. We accept that there was a privacy notice on the site setting out how the sensitive personal data would be processed in accordance with legislative obligations.

[35]The Claimant told us that she was not contacted by anyone from OH after she submitted the online questionnaire on 25 May 2023. We did not receive any evidence from OH, or indeed anyone from the Respondent’s recruitment and personnel department about that, but there is no evidence that OH did assess the information provided by the Claimant or provide any of that information to the Respondent. As the Claimant pointed out there are some printouts of internal tracking information from the recruitment system which suggests that from the Respondent’s point of view the issue of the OH questionnaire was still with the Claimant. That is consistent with the Claimant having completed the form on-line but it not having been seen or processed by anyone at the OH service.

[36]The Claimant had indicated on her OH questionnaire form that she wished to discuss her health issues with a member of the OH team and that she had not given consent for any existing OH records to be used in assessment. We accepted the evidence of Dr Tuano-Donnelly and Mr Unsworth that they were unaware of the information contained in the OH questionnaire and they had not spoken to anyone from the OH service about it.

[37]The Claimant’s new referees named in her new form were not contacted. Dr Tuano-Donnelly and Mr Unsworth told us that before this litigation they had been unaware that any details of new referees had been provided. They could not tell us why the new referees were not contacted, nor could they explain why they had not been told about them. Both Respondent witnesses told us however that the fact that the Claimant had provided new referee details and did not want her original referees to be provided would a matter of significant concern for the Respondent. The Tribunal accepted that, in the recruitment for a clinical post, such concerns would be inevitable given that it may be sign that the Claimant is concerned that adverse information about performance or conduct would be revealed in previous employment. We accept that the fact the Claimant had asked for referees to be contacted using personal email addresses would add to concern given the importance of formal employer references being provided. However, it was not explained to us why Dr Whitehouse, who was identified by the Claimant as a senior/lead of MSAK team at Manchester University Hospitals NHS Foundation Trust, was not contacted. If there had been concerns about the Claimant’s abilities or work presumably those would have been known by him. It was also not explained to us why the Claimant was not asked why her referees had changed and being given the chance to reconsider her objection to the original referees being contacted.

[38]Dr Tuano-Donnelly told us that in her view a reference from the originally named “employer/line manager” Dr McDonald was essential because she had assumed that Dr McDonald was the Claimant’s relevant clinical director at the time her application had been submitted and that meant that Dr McDonald would have knowledge of the Claimant’s work and access to her “logbook” which contained the important details about the Claimant’s clinical practice. In Dr Tuano-Donnelly’s understanding the reference on the application form to “line manager/employer” is in fact a reference to the relevant clinical director and it appears she expected the Claimant to be aware of that although it is not clear on what basis. There is no reference on the application form to a reference being required from a clinical director for the relevant clinical appointments. The Claimant has told us that in fact Dr McDonald had been her assigned line manager for a period of time, but that it had been Dr Whitehouse who had been the clinical director and would have better knowledge of her work and experience. What that does not explain is if Dr Whitehouse was always the better referee why the Claimant had not provided his details in the first place.

[39]The Tribunal found the evidence of both parties to be somewhat unsatisfactory. We found the Claimant’s explanation for not wanting Dr MacDonald to be contacted and her position of the relevance of Dr Whitehouse to be unconvincing, but the Tribunal also found it curious that the Respondent had not considered it necessary to contact Dr Whitehouse or anyone else to ensure the whole of the Claimant’s three years of employment was covered because the Respondent would have no way of knowing who the Claimant’s clinical director was between the application form being submitted and the proposed start date of the Claimant’s new employment.

[40]In the course of the hearing the Claimant applied to have the Respondent’s recruitment policy introduced into evidence. That was resisted by the Respondent on the basis that, if it was a relevant document, it should have been included previously. However, it was surprising to the Tribunal that this document had not been disclosed as an obviously relevant document by the Respondent at the relevant stage of the proceedings. The Tribunal accepted the Claimant’s arguments that this was a potentially relevant and important document, and we allowed the Claimant to introduce it into evidence and gave the Respondent the opportunity to recall the Claimant to be asked questions in cross examination about it if necessary.

[41]The Respondent’s recruitment policy refers to an NHS guidance document about references which deals with circumstances in which a reference is not provided. It sets out a procedure which should be followed in such circumstances which includes giving the applicant for whom a reference has not been provided the opportunity to provide further information. That was not applied in this case.

[42]Dr Tuano-Donnelly told us that she was unaware of that guidance and that in her approach she had simply relied on guidance from the recruitment team. We accepted Dr Tuano-Donnelly’s evidence about that, but we found it surprising that this Tribunal had not been offered evidence from any of the Respondent’s recruitment team to explain why NHS England guidance had not been followed or why that guidance had not been drawn to the attention of Dr Tuano-Donnelly. While Dr Tuano-Donnelly may not have been aware of the guidance, presumably the recruitment team would have been.

[43]On 2 June 2023 Ms Atcha emailed the Claimant to inform her that her offer of employment which had been subject to receiving satisfactory responses to a number of pre-employment checks would not proceed and her conditional offer had been withdrawn. Dr Tuano-Donnelly told us that this was her decision alone and she had instructed HR to withdraw the offer because the reference requirements had not been met. She had not been told that references had not been provided for the Claimant’s employment with MRI but she had not been told the Claimant had provided Dr Whitehouse’s details or details of other new referees.

[44]We noted that the bundle contains correspondence from Dr Lois McDonald contacting the Respondent to query whether she needed to provide a reference because she had been contacted by the Respondent but told by the Claimant that a reference would not be required. The Respondent had not told Dr McDonald that it considered a referee from her to be essential . It appears that Dr Alwan had indicated that he was not willing to provide a reference.

[45]Dr Tuano-Donnelly and Mr Unsworth both gave us clear evidence that they were totally unaware of the information disclosed by the Claimant in her OH questionnaire. The Claimant invited us to draw an inference from the timing of the decision to withdraw and the fact that on 26 May, within two days of her completing the questionnaire, Ms Atcha had marked her references as being out of time even though by that time she had provided new referee details and the Respondent’s usual five week check period had not lapsed. We had no evidence from the HR team to confirm that they had no knowledge of the Claimant’s depression and Dr Tuano-Donnelly told us that NHS HR teams do share information directly on occasion and that this might be done by telephone without any records being kept, but she and Mr Unsworth were adamant that HR did not tell share any information nor do we have any evidence that the Respondent’s HR team had in fact been in touch with the team at MRI.

[46]The bundle contains correspondence about what happened after the offer was withdrawn in terms of involvement of the Claimant’s BMA representative and in relation to subject access requests, but we did not consider this to be relevant to our decision about what had been in the minds of the putative discriminator(s) at the time of the relevant decision.

[47]Some reference was made in evidence to the issue of the Claimant having completed the Fellow of the Royal College of Radiologists (“FRCR”) parts 1 and 2 or for there to be equivalent evidence of radiology training and there was some dispute in the evidence about whether the Claimant held that or not. We did not find it necessary to resolve the dispute about that because it was Dr Tuono-Donnelly’s clear evidence in cross examination that the reason for her decision had been about the provision of satisfactory references. In any event, even if Dr Tuono-Donnelly had mistakenly believed that the Claimant did not hold appropriate qualifications in this regard which seemed to be the Claimant’s case, that would not have helped the Claimant in this claim. That qualification issue is entirely unrelated to disability so at best this was a further a nondiscriminatory reason for the decision to withdraw the offer. However, it was not a reason relied upon y the Respondent at this hearing. The Law Direct discrimination

The Law

[48]Section13(1) Equality Act 2010 provides that ‘A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’.

[49]A complaint of direct discrimination will only succeed where the tribunal finds that the protected characteristic was the reason for the Claimant's less favourable treatment. It is for the tribunal to decide as a matter of fact what is less favourable.

[50]It is necessary to explore the employer’s mental processes (conscious or subconscious) to discover the ground or reason behind the act. In the majority of cases, the best approach to deciding whether allegedly discriminatory treatment was ‘because of' a protected characteristic is to focus on the reason why, in factual terms, the employer acted as it did. As Lord Nicholls put it Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL the issue essentially boils down to down to a single question: did the complainant, because of a protected characteristic, receive less favourable treatment than others.

[51]The EHRC Employment Code makes the point, at para 3.14, that the motive or intention behind the treatment complained of is irrelevant. In other words, it will be no defence for an employer, faced with a claim under S.13(1), to show that it had a ‘good reason' for discriminating.

[52]The Court of Appeal in Owen and Briggs v James

1982 ICR 618

, CA, held that while the protected characteristic (in that case, race) need not be the only reason for the treatment, it must have been a substantial reason. In O'Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor, the EAT stated that the protected characteristic need not even be the main reason for the treatment, so long as it was an ‘effective cause'. The EHRC Employment Code confirms this, noting that ‘the [protected] characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause' - para 3.11.

[53]Where the employer behaves unreasonably, that does not mean that there has been discrimination, but it may be evidence supporting that inference if there is nothing else to explain the behaviour — Anya v University of Oxford and anor ICR 847, CA.

[54]Comparators: In order to claim direct discrimination under section 13 EqA, the Claimant must have been treated less favourably than a comparator who was in the same, or not materially different, circumstances as the Claimant. Whether the comparator is actual or hypothetical, the comparison must help to shed light on the reason for the treatment. Section 23(1) stipulates that there must be ‘no material difference between the circumstances relating to each case’ when determining whether the Claimant has been treated less favourably than a comparator. In other words, in order for the comparison to be valid, ‘like must be compared with like’.

[55]A comparator must not share the Claimant’s protected characteristic. The EHRC Employment Code makes it clear that that the circumstances of the Claimant and the comparator need not be identical in every way. Rather, ‘what matters is that the circumstances which are relevant to the [Claimant’s treatment] are the same or nearly the same for the [Claimant] and the comparator’

[56]In the absence of an actual comparator — i.e. a real person who is in materially the same circumstances as the Claimant but who has not suffered the same treatment — the question of less favourable treatment needs to be determined by reference to a hypothetical comparator who resembles the Claimant in all material respects. Discrimination arising from disability

[57]Section 15 EqA defines discrimination arising from a disability “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had a disability.”

[58]Section 15 EqA is particular to people with disabilities. It recognises that the reason for discriminatory treatment might not be the disability itself (that would be direct discrimination) but because of the way the disability impacts on the disabled person, for example because they had to take a lot of time off due to sickness absence caused or related to their disability

[59]The treatment is unlawful if it is “unfavourable” rather than “less favourable” which means that no comparator is required for this form of alleged discrimination.

[60]In terms of proving causation, it is sufficient for a Claimant to show facts from which the tribunal could reasonably conclude that there is some causal link, and that the unfavourable treatment has been caused by an outcome or consequence of the disability. The employer’s motivation is irrelevant. 61. s15 EqA requires unfavourable treatment to be because of something arising in consequence of the disabled person’s disability. If the something is an effective cause – an influence or cause that operated on the mind of the alleged discriminator to a sufficient extent (whether consciously or unconsciously), the causal test will be satisfied.

[62]Even if a Claimant succeeds in establishing unfavourable treatment arising from disability, the employer can defend such a claim by showing either that the treatment was objectively justified, or that it did not know or could not reasonably have known that the employee was disabled.

[63]There is guidance for tribunals about how to approach s15 claims in the case of Pnaiser v NHS England and anor

2016 IRLR 170

, EAT. Mrs

Justice Simler summarised the proper approach to establishing causation under S.15 is as follows:

[64]First, we must identify whether the Claimant was treated unfavourably and by whom.

[65]Next, we must then determine what caused that treatment — focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person but keeping in mind that the actual motive of the alleged discriminator in acting as he or she did is irrelevant.

[66]We must then establish whether the reason was ‘something arising in consequence of the Claimant’s disability’, which could describe a range of causal links. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. Burden of proof in relation discrimination complaints

[67]The burden of proving discrimination complaint rests on the employee bringing the complaint. However, it has been recognised that this may well be difficult for an employee who does not hold all the information and evidence that is in the possession of the employer and also because it relies on the drawing of inferences from evidence.

[68]The concept of the “shifting burden of proof” was developed to deal with this. This concept is discussed in a number of cases and is set out in section 136 of the Equality Act which states that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. If A is able to show that it did not contravene the provision, then this would not apply. (See Igen v Wong [2005] IRLR and subsequent cases including Madarassay v Nomura International Plc

[2007] IRLR 246

[69]In Laing v Manchester City Council [2006] IRLR tribunals were cautioned against taking a mechanistic approach to the proof of discrimination in following the guidance set out above. In essence, the employee must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer had committed an unlawful act of discrimination against them. The tribunal can consider all evidence before it in coming to the conclusion as to whether or not a Claimant has made a prima facie case of discrimination (see also Madarassay referred to above).

[70]In every case the tribunal has to determine the reason why the Claimant was treated as she was. As Lord Nicholls put it in Nagarajan v London Regional Transport

[1999] IRLR 572

“this is the crucial question”. It was also his observation that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator. If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reasons. It is sufficient that it is significant in the sense of being more than trivial.

[71]In assessing the facts in this case, the tribunal has reminded itself that simply showing that conduct is unreasonable and unfair would not, by itself, be enough to trigger the reversal of the burden of proof (Bahl v The Law Society

[2003] IRLR 640

). Unreasonable conduct is not always discriminatory.

[72]As explained in the case of Griffiths-Henry v Network Rail Infrastructure Ltd

2006 IRLR 865

, an employer does not have to establish that he acted reasonably or fairly in order to avoid a finding of discrimination. He only has to establish that the true reason was not discriminatory. However if unreasonable conduct occurs alongside other factors which suggest that there is or might be discrimination, then the tribunal should find that the Claimant had made a prima facie case and shift the burden on to the Respondent to show that its treatment of the Claimant had nothing to do with the Claimant’s gender or her status as a disabled person or the fact that she made protected disclosures (as applicable) and in so doing apply the burden of proof principle as set out above. Submissions

[73]We received written and oral submissions from Ms Rumble. We also received lengthy written submissions running to some 27 pages from the Claimant. She told us that she preferred to rely on her written submissions which covered everything which was relevant in her view.

[74]We do not attempt to set out in detail in the submissions here but in brief summary some of the key issues the Claimant argued that we should draw adverse inferences from the proximity of timing of the withdrawal of the job offer to when she had submitted the OH questionnaire to conclude that the Respondent must have been influenced by her disability in making that decision. She points out that job offer was withdrawn before the usual time for the completion of pre-employment checks would have run out and highlighted the NHS guidance on what should happen if a reference is not provided. She also argued that we should draw adverse inferences from a failing of the Respondent in the data subject access responses she received and from what she described as inconsistent and unreliable evidence from the Respondent.

[75]The Claimant suggested that we would not need to conclude the OH questionnaire had been seen by the Respondent’s decision makers for her claim to succeed and refers in her submissions to evidence of “undocumented discussions concerning the withdrawal… as well as a conversation with Dr Sarah O’Shea, a consultant radiologist from my previous employer”. However, the Claimant did not give any evidence about Dr O’Shea in her witness statement and the Respondent’s witnesses were not asked about any such discussion. It is unfortunate that on this and other matters there is rather more witness evidence in the Claimant’s submissions, which were only seen when we reconvened for submissions, than in her witness statement. The Tribunal could not take into account evidence the Claimant offered in the submissions which had not been put before us earlier and which had not been put to Respondent witnesses in cross examination.

[76]The Claimant also argued that the Respondent had constructive knowledge of her disability because information had been disclosed to it OH service and argued that because she had declined to say if she was disabled on her application form it would have been obvious that she was disabled and that this should have triggered some sort of follow up. She argued that her case could be distinguished from the case of Q v L

[2019] EAT 0209/18

relied upon by the Respondent in relation to the circumstances where knowledge of OH could be imputed to an employer, because the OH provider in this case used the Respondent’s own IT infrastructure and was covered by the same data protection policies and was part of a “mandated” pre-employment process. She argued that the Respondent in in this case has sought to avoid liability by “remaining will fully ignorant or by failing to investigate evident indicators of disability”.

[77]Ms Rumble argued the claims should dismissed. Again, we do not attempt to set out the submissions in full, but briefly summarise some of the key points argued. Ms Rumble submitted that the Claimant had not established that the burden of proof had shifted to the employer and emphasised that inferences can only be drawn from actual, not assumed findings of fact (BMA v Chaudhary (No 2)

2007 IRLR 800

[78]In relation to the direct discrimination claim, Ms Rumble submitted that the Claimant had not established that the burden of proof had shifted in circumstance where the clear evidence of Dr Tuono-Donnelly had been that she had made the decision to withdraw the job offer, that she had not known about the Claimant’s disability and therefore could not have been influenced by that and that she would have treated a non-disabled applicant who failed to provide referees in the way. Even if the burden of proof had shifted there was evidence of a non-discriminatory reason for withdrawing the job offer, that was the referee issue.

[79]In relation to the s15 complaint, Ms Rumble argued that there was no evidence from the tribunal could conclude that the reason why the Claimant’s offer was withdrawn was one of the following (from the List of issues) “7.1The need to explore potential adjustments and/or support with Occupational health in relation to training; working, environment/access to a space that is quiet, safe with fresh air and with adjustable light conditions, coaching and mentoring. 7.3 The Claimant’s requirement for therapeutic interventions including psychiatric care and medication”

[80]Ms Rumble pointed out that the Claimant had accepted in cross examination that she had never given consent for the information shared with the OH to be provided to the Respondent and the Respondent’s evidence had been that the information had not been shared and would not be shared until consent had been given for this to happen. In those circumstances the Respondent had no reason to believe that the Claimant required adjustments based on the information it had from the application and interview process.

[81]Ms Rumble submitted that the case of Hammersmith and Fulham LBC v Farnsworth

2000 IRLR 691

could be distinguished from the Claimant’s case, because in that case the OH physician had not been bound by a duty of confidence not to disclose information he had to the Respondent. The claimant in that case had disclosed information including at an appointment and had given consent for information to be shared with her employer. On the facts in that case the OH physician had been an agent of the Respondent and part of the decision-making team.

[82]Ms Rumble relies on Q v L (above) because, as in that case the OH adviser had not passed on details of the employee’s medical history and had no express authorisation to do so under data protection rules. Further in this case, and in contrast to the facts in Q v L, the Claimant had not commenced employment or received an unconditional offer of employment, she had not emailed the Respondent or its agents about her disabilities and this was not a case where the Respondent should have made further enquiries about the Claimant’s condition given that it was bound by s60 of the Equality Act 2010. We were referred to the Court of Appeal decision in Hartman v South Essex Mental health and Community Care NHS Trust

[2005] EWCA Civ 06

. Discussions and Conclusions

[83]Issues 1 to 4 in the List of Issues: Did the Claimant have a disability, as defined under the Equality Act 2010, due to a physical or mental impairment (impairment; depression) at the material time (2 June 2023)?

[84]As noted, although disability had been disputed, the submissions were made on the basis that disability had been accepted (see para 3 of the Respondent’s skeleton argument).

[85]Paragraph 2.2. of Schedule 1 of the Equality Act provides that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is treated as continuing to have that effect if the affect is likely to reoccur. Likely to reoccur means it could well happen, see paragraphs C3 of the Guidance and Boyle -v- SCA Packaging Limited (Equality and Human Rights Commission Intervening)

2009 ICR 1056

, HL. The guidance states that the effects are to be treated as long term if they are likely to reoccur beyond twelve months after the first occurrence (see para C6).

[86]The question for the Tribunal is not whether the impairment itself was likely to reoccur, but whether the substantial adverse effect of the impairment is likely to reoccur. The Claimant’s first episode of depression requiring medication lasted from November 2020 until April 2022 and even after that she continued to receive psychotherapy, which the Claimant told us has helped her cope with, and manage, her symptoms. Of course, in assessing the affect of the depressive disorder on the Claimant’s day to day activities, we must disregard the effects of her medication.

[87]The Tribunal did have some concerns about the quality of the Claimant’s evidence about the impact of her mental impairment on day-to-day activities at the time her offer of employment was withdrawn, which is the relevant time. Her evidence lacks specificity about when she experienced her significant impact on day-to-day activities. The witness evidence of the Claimant tends to focus on the medical diagnosis of her impairment rather than the impact of that on day-to-day activities and there is unhelpful lack of specific evidence about the impact of day-to-day activities at the relevant time. However, we accepted there was sufficient evidence for us to conclude that the evidence showed that the Claimant’s depression had a significant impact on day-to-day activities prior to her interview with the Respondent, over a sustained period of time, and that it was likely to reoccur to affect the Claimant in the future.

[88]We concluded that the Claimant was disabled for the purposes of s6 of the Equality Act 2010.

[89]We considered the direct discrimination complaint first.

[90]Issue 14 required us to consider what the facts were in her relation to the withdrawal of the Claimant’s offer of employment.

[91]We considered that the following facts were significant. Of course, there is no dispute that the offer was withdrawn. The decision had happened before the Respondent’s own self-imposed timescale of the conditions attached to the offer to be met by the Claimant and shortly after she submitted a document online which referred to her disability, without following NHS guidance about what to do if references are not provided and without any attempt being made to request a reference from the head of the unit at MRI, Dr Whitehouse who would seem, on the face of things an appropriate referee to meet the requirements of the Respondent’s recruitment process. This was a case where the Respondent’s conduct does require explanation and we reminded ourselves that although a claimant must raise a prima facie case of discrimination it is important that we recognise the difficulties of proving discrimination and we do not place impose too high an obligation on the claimant in this regard.

[92]We concluded that these facts summarised above did shift the burden on proof to the Respondent to show that reason for the withdrawal was not the Claimant’s disability. Whilst we accepted of course that unreasonable or unfair conduct is not, itself, evidence from which we could conclude that discrimination had occurred, the timing of the decision looked at long aside the proximity of the submission of the questionnaire which refers to disability, did suggest that the reason could be the Claimant’s disability. This was a case where there appeared to be “something more” than simply unfair treatment. The absence of evidence and explanation from the Respondent’s recruitment team and the fact that we had no evidence to explain why Dr Whitehouse had not been considered as a potential referee was significant.

[93]We therefore rejected the Respondent’s arguments that the burden had not shifted to it to show a non-discriminatory reason.

[94]When we turned to the examine the Respondent’s evidence, we accepted Dr Tuono-Donnelly’s evidence that she was unaware that the claimant was disabled. We did not accept the Claimant’s argument that the fact that she had declined to say if she was disabled in her application form meant that the Respondent and its staff must have known she was disabled, and this was a fact from which we could conclude there was discrimination, even if we accepted that the respondent’s staff had not known about the OH questionnaire. In any event we agreed with Ms Rumble that this is not consistent with the evidence. The Respondent had offered the Claimant the job based on the information in her application form. The Claimant had not suggested that anything had been said in the course of the interview which would lead the Respondent to conclude that she was disabled and, in any event, based on that interview, the job offer had been made. It was clearly something which happened during the process of the preemployment checks which had caused the Respondent to decide to withdraw the job offer.

[95]We concluded that the evidence of Dr Tuono-Donnelly was decisive. The tribunal found her to be a straightforward credible witness, who was willing to accept that there were aspects of what happened which she could not explain, and which raised questions. Importantly we accepted that it had been Dr TuonoDonnelly’s decision alone to withdraw the conditional job offer. Mr Unsworth had been aware of the concerns about the absence of references and had discussed the issue with Dr Tuono-Donnelly, but the instruction to withdraw the job offer had been given by her. Dr Tuono-Donnelly’s evidence about that was unequivocal. Although, as we noted, we found it surprising that it appears the decision to offer the job to the Claimant had been influenced so significantly by the fact the Claimant had offered a particular respected specialist clinician as a referee in the first place, we accepted that had genuinely been an influencing factor in the decision to offer the role. We accepted that the Claimant being adamant that named referees should not be contacted for references was something which concerned Dr Tuono-Donnelly. This was a senior clinical role after all. We accepted that in Dr Tuono-Donnelly’s mind, based on the information in the application form and her understanding of the role of Dr MacDonald, that meant the Claimant was unwilling to allow the Respondent to approach her clinical director for a reference. The fact that Dr Tuono’- Donnelly’s understanding about that was, or may have been, flawed does not alter that this was reason for her decision.

[96]We concluded that Dr Tuono-Donnelly would have instructed the recruitment team to withdraw an offer of employment made to a non-disabled applicant who had told the Respondent it could not contact originally named referees and, on her understanding, had not provided appropriate referee details.

[97]In terms of arguments raised by the Claimant, we did not accept her suggestion that the fact that she had not said whether she was disabled should have prompted the Respondent to investigate further, nor did we see how that was relevant in this case. The issue for us was whether Dr Tuono-Donnell as the decision maker was influenced consciously or sub-conclusory by the Claimant’s disability. We were satisfied that she was not.

[98]It is perhaps worth making the point that based on the evidence before us, we are not saying that what happened to the claimant was fair. The job offer would not have been withdrawn as it was, if the Respondent and Dr Tuono-Donnelly had followed the NHS England guidance which was part of its own procedures. The fact that the Respondent seems not have been aware of that guidance does not reflect well on the Respondent, and especially on the recruitment team. But that does not mean that the complaint of discrimination is well founded. The Tribunal concluded that the Respondent had shown a nondiscriminatory reason for the withdrawal of the job offer because the reason was the Claimant’s withdrawal of her original referees. The complaint of direct discrimination is dismissed. Discrimination arising from disability- section 15 Equality Act 2010

[99]We did not consider the issues in the quite the same order as the List of Issues, instead we approached the issues using the guidance in Pnaiser.

[100]First it was not in dispute that the withdrawal of the Claimant’s conditional offer of employment was unfavourable treatment (issue 6).

[101]Next, we had to determine what caused that treatment recognising that we must focus on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person but keeping in mind that the actual motive of the alleged discriminator in acting as he or she did is irrelevant. This is Issue 8: Has the Claimant proven facts from which the Tribunal could conclude that the unfavourable treatment was because of any of those things?

[102]Much of the reasoning above applies here. For the Claimant’s s15 complaint to succeed, we would have to conclude that the reason for the job offer withdrawal was the information the claimant had set out about possible adjustments in her OH questionnaire because that was the only way Dr Tuono-Donnelly could have been influenced at all by the matters relied upon by the Claimant as set out in issue 7: “7.1The need to explore potential adjustments and/or support with Occupational health in relation to training; working, environment/access to a space that is quiet, safe with fresh air and with adjustable light conditions, coaching and mentoring. 7.3 The Claimant’s requirement for therapeutic interventions including psychiatric care and medication.”

[103]Quite simply the Tribunal had accepted that Tuono-Donnelly did not know that the Claimant considered that she would need adjustments and she did not know what the Claimant had said in the OH questionnaire. The matters in Issue 7 could not have influenced her decision in any way.

[104]The Claimant had highlighted to us in submissions the importance of the decision in Grosset v City of York Council which demonstrates the Respondent does not have to know that “something arising” is caused by or connected to disability if the Respondent fails to show that it did not know or could not reasonably be expected to know that the Claimant was disabled. However, on the Claimant’s case own case, this was not a situation akin to that in Grosset. In that case G was disciplined for misconduct where what he had done had been caused by or was related to his disability, but his employer had not been aware of that connection. In this case it is not that Dr Tuono-Donnelly did not know that matters in issue 7 were “something arising”, she did not know about them at all.

[105]As we reached that conclusion, it was not necessary for us to consider whether the matters set out in Issue 7 were in fact “something arising”. We concluded that the complaint was not well founded, and it was dismissed.

[106]As noted above. the s15 complaint is subject to a deposit order made on28 July 2024. We concluded that this complaint was not well founded for substantially the same reasons as Employment Judge Cline gave for making the deposit order but as we understand whether the order should have made at all is the subject of an EAT appeal, we did not go on to consider whether the Claimant had shown that she had not acted unreasonably as required by Rule 40(7) of the Employment Tribunal Rules of Procedure. Subject to the decision of the EAT in the appeal, further submissions from the parties will be invited on that issue. Approved by