Ms J BurnsClaimantBarts Health NHS TrustRespondent
Before
Employment Judge MassarellaIn person for claimantMs H. Patterson (instructed by Counsel) for respondentDate 12 December 2025
JUDGMENT
[1]the Claimant’s claim of direct disability discrimination at Issue 20, relating to the Respondent’s failure to deal with her grievance without unreasonable delay, succeeds;[2]the claims of direct disability discrimination at Issues 1-6, and the claims of failure to make reasonable adjustments at Issues 23 and 24, were presented out of time and it is not just and equitable to extend time; the Tribunal lacks jurisdiction to hear them, and they are dismissed;[3]the claims of direct disability discrimination at Issues 10, 11, 13, 14 and 15 are dismissed on withdrawal;[4]the remaining claims of direct disability discrimination are not wellfounded and are dismissed; Case Number: 3207423/2021 2[5]unless they are able to resolve the matter of remedy by agreement, the parties shall write to the Tribunal no later than 28 days from the date on which this judgment is sent to them, providing their available dates and proposed directions for a one-day remedy hearing.
REASONS
[1]JUDGMENT was sent to the parties on 26 June 2025. Written reasons were requested by the Claimant in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024. Although the request was made on 27 June 2025, it was not referred to me until 18 July 2025. Procedural history[2]ACAS early conciliation took place between 4 October and 5 November 2021. The claim form was presented on 4 December 2021.[3]There was a preliminary hearing (‘PH’) before EJ Gardiner on 18 July 2022. The Judge clarified the claims, so far as he could. He recorded in his summary that he had explained to the Claimant the difference between direct disability discrimination (s.13 Equality Act 2010 (‘EqA’)) and disability-arising discrimination (s.15 EqA).[4]There was a second PH before the same judge on 30 November 2022. At that hearing he allowed the Claimant to amend her case to add additional claims. He then produced a final list of issues, which consisted of claims of direct disability discrimination and failure to make reasonable adjustments only. Case Number: 3207423/2021 2[5]The case was originally listed for three days in November 2023 (to deal with liability only) but it was postponed because of lack of judicial resources.
The hearing
[6]This hearing was originally listed before a full panel. One of the nonlegal members did not attend the hearing and could not be contacted. The Claimant did not consent to the Tribunal sitting as a panel of two. There was no application to adjourn the hearing. I decided that it was in the interests of justice to hear the case sitting alone: the case was presented in 2021; there had already been one postponement; it was important for all concerned that the proceedings be concluded within this trial window.[7]The case had been fully prepared for a final hearing in November 2023. Just over a week before the first day of this hearing, the Claimant disclosed a large number of documents, recordings (mostly covert recordings of meetings with managers) and transcripts of those recordings; she asked for them to be included in the bundle. The Respondent’s solicitor told the Claimant that she would need to make an application to the Tribunal to admit new evidence at this stage. No written application was made before the hearing. The Claimant made an oral application, which occupied most of the afternoon of the first day. Without objection from the Respondent, I admitted 11 hard copy documents which were placed at the back of the hearing bundle in a non- agreed section. As for the recordings and transcripts, the Claimant did not pursue an application to admit all of them but focused on a small number of them.[8]For the reasons given orally at the hearing, I ordered that the existing transcript of the Claimant’s meeting with Ms Staddon on 27 March 2020 be checked for accuracy and resubmitted. As for the recording/transcript of a meeting on 8 April 2021 with Ms O’Connell, it emerged that a transcript of that meeting was already in the bundle. I allowed the application to admit a revised transcript of those parts of the meeting of 24 December 2020 with Ms O’Connell which referred to the question of overtime; I ordered the Respondent to prepare the transcript and to agree it with the Claimant.[9]On 15 May 2025, the Claimant had made an application to amend her case to add the following claim: ‘I wish to add the respondent’s failure to take reasonable steps to prevent and address the bullying, harassment, and discrimination faced, in breach of their duty of care and the Equality Act 2010.’[10]For the reasons given orally at the hearing, I refused the application.[11]I asked the Claimant if she needed any adjustments for the hearing. She said that she might need additional breaks; I encouraged her to ask for them, when needed.[12]Ms Patterson (Counsel for the Respondent) confirmed that disability has been conceded in relation to the following impairments: anxiety, depression, stress and panic attacks. The Claimant confirmed that she had prepared the questions she wished to ask the Respondent’s witnesses in cross- examination; she was supported during the hearing by her son. At the end of Case Number: 3207423/2021 3 the first day we agreed a timetable, aiming to conclude evidence and submissions by the end of Day 4. I planned to take Day 5 to deliberate and to list a further day to give oral judgment and to case manage remedy, if appropriate.[13]The final bundle consisted of 702 pages. There was a separate witness statement bundle of 65 pages which I read on the morning of Day 1. I told the parties that they would have to take me to documents in the bundle they wanted me to read.[14]I heard evidence from: 14.1. the Claimant; and, on behalf of the Respondent, from: 14.2. Ms Shenaz Valliani (Senior Sister, Outpatients Department, Royal London Hospital, line managed the Claimant); 14.3. Ms Christelle Hunter (Senior Sister, Outpatients Department, Royal London Hospital, line managed the Claimant); 14.4. Ms Emma Staddon (Matron, Outpatients Department, Royal London); 14.5. Ms Christine O’Connell (Manager Central Appointments Office, line managed the Claimant from 31 March 2020); 14.6. Ms Sharon Walshe (Service Manager for the Outpatient Department at the Royal London); 14.7. Mr Shirazul Islam (Team Leader, Scheduling Unit); 14.8. Mr Thomas Logan (Divisional Director of Operations for Women’s Health).[15]Because the Claimant had not led evidence in her witness statement about time limits, with Ms Patterson’s agreement I asked the Claimant some open questions relevant to the issue at the beginning of her oral evidence.[16]In the event, the parties’ evidence occupied the first four days of the hearing. They lodged written submissions, which I read carefully; they attended on the morning of Day 5 for oral submissions, which were extremely brief. I then took the rest of that day to begin my deliberations; I listed a sixth day in chambers and gave oral judgment on liability on the morning of Day 7.[17]I record that the Claimant conducted her case in a calm and organised fashion. Ms Patterson presented her client’s case with care and skill, while being mindful of the fact that the Claimant was unrepresented. I am grateful to them both. Conclusions in relation to time limits: the period between November 2018 and March 2020[18]I begin this judgment by deciding whether, having now heard all the evidence, the Tribunal has jurisdiction to determine the Claimant’s claims of disability discrimination arising out of the period she spent working as a healthcare Case Number: 3207423/2021 4 assistant (‘HCA’) in the Outpatients Department (‘OPD’) at the Royal London Hospital, between January and March 2020: the six claims of direct disability discrimination at Issues 1 to 6 (see the Appendix to this judgment) and two claims of failure to make reasonable adjustments at Issues 23 and 24. Brief summary of the chronology up to March 2020[19]The Claimant’s employment with the Respondent Trust began on 27 October 2014. She was employed as a Nursing Assistant, which is equivalent to an HCA, at St Bartholomew’s Hospital (‘Barts’), which is part of the Respondent Trust. She worked full-time, 37.5 hours a week.[20]During her time at Barts, the Claimant raised a grievance in which she alleged bullying by colleagues. She considered that this grievance was badly managed and not properly investigated. From 24 April 2017 to 18 November 2018 (a period of 574 days), the Claimant was absent through ill-health, which she maintains was caused by bullying and harassment by her managers and co-workers. It was apparent from the fact that the Claimant was still seeking to include documents from the 2017/2018 period in the bundle for this hearing, some seven years later, that the events of that time continue to pre-occupy her.[21]In November 2018, with her agreement, the Claimant was redeployed to the Royal London Hospital (also a part of the Trust) where she joined the OPD as an HCA. The idea was that she would have a fresh start under new management.[22]She continued to have further sickness absence, both on a long-term and intermittent short-term basis, for various reasons, only some of which related to the impairments she relies on in these proceedings. Ms Hunter and Ms Valliani managed her absence under the Respondent’s policies. They referred her to occupational health (‘OH’) and, in August 2019, conducted a stress risk assessment. She was permitted to have time off for medical appointments and allowed to take discretionary breaks when needed.[23]However, in August 2019, she said that she was finding it tiring to work full- time; she submitted a request to work flexibly, four days a week, which was granted and implemented from October 2019. Steps were taken to arrange for her not to be assigned to work on the busiest clinics during both morning and afternoon sessions.[24]A further period of sickness absence for foot pain in late February 2020 resulted in the Claimant triggering the formal, final stage of the intermittent sickness absence process. However, the Covid pandemic intervened, and the next stage did not take place until November 2020.[25]The first national lockdown started on 23 March 2020. The Respondent was under enormous pressure at this time; the pandemic had a huge impact on day-to-day operations; many staff from the OPD were being redeployed to other areas of the hospital. On 30 March 2022, Ms Staddon emailed the Claimant to tell her that she had arranged temporary redeployment for the Claimant to the Central Appointments Office (‘CAO’), where the Claimant began to work on 31 March 2020 in a Band 2 admin role. Case Number: 3207423/2021 5[26]All the claims relating to the Claimant’s time in the OPD at Royal London fall into the period January to March 2020. The first allegation of discrimination relating to the Claimant’s period of work in the CAO relates to something which happened in June 2020. The Claimant’s evidence about time limits[27]In response to my questions about why she bought her Tribunal claims when she did, and not earlier, the Claimant said that she was going to bring a case when she worked in Barts and she spoke to someone who suggested that she should see a solicitor; she thought about it and decided against doing so; she thought that moving to a new department meant that things would get better.[28]She explained that when she moved to the Royal London, she felt that she was not in the right frame of mind and did not think that she would be able to go through with it; she then did not see the pattern of adverse treatment she says she experienced in her new role until her health started to deteriorate. She said that she did not know a lot about the Employment Tribunal, although she did regard herself as a person with a disability. She was advised by OH from 2019 onwards that she was covered by the Equality Act 2010 and was entitled to reasonable adjustments. She had access to advice from her trade union; she also had an advocate, Mr Rahman, from the Working Well Trust (a charity which supports people with mental health disabilities), who advised her that she needed to contact ACAS if she wanted to bring a Tribunal claim. She maintained that she did not know about time limits until she got in touch with ACAS ‘in July 2021’ (in fact, she contacted ACAS in October 2021). The law: time limits[29]S.123(1)(a) Equality Act 2020 (‘EqA’) provides that a claim of discrimination must be brought within three months, starting with the date of the act (or omission) to which the complaint relates.[30]The three-month time limit is paused during ACAS early conciliation. In working out when the primary time limit expires, the period starting with the day after conciliation is initiated and ending with the day of the early conciliation certificate, is not to be counted (s.140B(3) EqA). If the time limit would have expired during early conciliation or within a month of its end, then the time limit is extended so that it expires one month after early conciliation ends (s.140B(4) EqA).[31]The limitation period in a claim for a failure to make reasonable adjustments was considered by the Court of Appeal in Hull City Council v Matuszowicz [2009] ICR 1170. For the purposes of claims where the employer was not deliberately failing to comply with the duty, and the omission was due to lack of diligence, it is to be treated as having decided upon the omission when, if it had been acting reasonably, it would have made the reasonable adjustments.[32]S.123(3)(a) EqA provides that conduct extending over a period is to be treated as done at the end of the period. The leading authority on this provision is Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530, in which the Court of Appeal held that Tribunals should not take too literal an approach to determining whether there has been conduct extending over a Case Number: 3207423/2021 6 period. Addressing the approach in earlier authorities, Mummery LJ held (at [52]): ‘[…] the focus should be on the substance of the complaints that the [employer] was responsible for an ongoing situation or a continuing state of affairs […] The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.’[33]However, for there to be conduct extending over a period there must have been ongoing discriminatory conduct. It is not enough that incidents are linked and that later events would not have occurred but for the earlier events, there must be something in the conduct that establishes a continuing discriminatory state of affairs (Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40 at [31]).[34]A single act, for example a decision not to appoint a person to a post, does not ‘extend over a period’ merely because it has continuing consequences (Amies v ILEA [1977] ICR 308).[35]In an appropriate case, a relevant factor is whether the same person is responsible for each of the acts: Aziz v FDA [2010] EWCA Civ 304 at [33].[36]The Tribunal may extend the three-month limitation period for discrimination claims under s.123(1)(b) EqA where it considers it just and equitable to do so.[37]There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. There are statutory time limits, which will shut out an otherwise valid claim unless the Claimant can displace them. Whether a Claimant has succeeded in doing so in any one case is not a question of either policy or law; it is a question of fact and judgment, to be answered case by case by the Tribunal of first instance which is empowered to answer it (Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 per Sedley LJ at [31-32]).[38]In the context of discrimination cases, the importance of recalling not only what is done but the thought processes involved make it more likely that memory fade will have an impact on the cogency of the evidence (Redhead v London Borough of Hounslow UKEAT/0086/13/LA per Simler J at [70]). Analysis and conclusions: time limits[39]The starting point is that the Claimant had three months, plus any extension gained by the ACAS early conciliation period, from any alleged discriminatory act, to present her claims to the Tribunal.[40]Any act or omission which took place before 5 July 2021 is out of time, subject to the Claimant succeeding in an argument that there was conduct extending over a period, linking forward to a successful claim of discrimination after that date; alternatively, she must persuade me to extend time on a just and equitable basis.[41]I have had the advantage (which the judge at the two preliminary hearings did not have) of hearing full evidence on all the issues and so I have a clear view of the chronology of the allegations, of the individuals against whom they were Case Number: 3207423/2021 7 pursued, and of the potential for there to be links between one act/group of acts and another act/group of acts.[42]The allegations in this case fall into two periods.[43]Period 1 relates to the allegations about the events between January and March 2020, when the Claimant worked in the OPD at the Royal London. She was managed by Ms Valliani, Ms Hunter and Ms Staddon.[44]Period 2 relates to the period between April 2020 and December 2021, when the Claimant worked in the Central Appointments Office. She was managed by Ms O’Connell and Ms Walshe.[45]The last alleged act of direct discrimination about which the Claimant complains in Period 1 is Issue 6: that, on 27 March 2020, Ms Staddon refused to redeploy her to a non-Covid ward, as recommended by her GP note. The first alleged act of discrimination in Period 2 is Issue 7: that, in around June 2020, the Claimant was asked by Ms O’Connell to carry out a pre-screening role that was too difficult for her.[46]Then there are the two claims of failure to make reasonable adjustments at Issues 23 and 24. The point at which time runs in a claim of failure to make reasonable adjustments can sometimes be difficult to ascertain, but not in this case. The Claimant’s allegations relate to an alleged failure to make reasonable adjustments to her workload while working as an HCA in the Royal London Hospital; there cannot be any ongoing failure after she stopped doing that role at the end of March 2020. As for the sickness absence trigger points, the Claimant’s own case is the trigger points ought to have been adjusted in February 2020; time runs from then.[47]Consequently, there are no live allegations of discrimination at all relating to the Claimant’s first two months working in the CAO in April and May of 2020. All the evidence suggests that that was a stable period, during which she was doing work which she enjoyed (see below).[48]In my judgment, that gap of two months would be enough, in itself, to point towards the conclusion that there was no conduct extending between periods 1 and 2 which could amount to a continuing discriminatory state of affairs, assuming that I were to find that there was a meritorious claim of disability discrimination in period 2.[49]There are then a further three factors which point away from there being conduct extending between periods 1 and 2: firstly, the fact that the allegations in relation to period 2 are made against different managers from the alleged discriminators in period 1; secondly, the conduct in period 2 occurred in a different part of the Respondent’s organisation; thirdly, there was no cogent evidence of any cooperation or collusion between the different alleged discriminators in periods 1 and 2.[50]I have concluded that these factors, taken together, defeat the argument that, even if any of the claims in period 1 were to succeed, there was discriminatory conduct extending between period 1 and period 2. In my judgment, the acts complained of in period 2 are unconnected with the earlier alleged acts of discrimination. Case Number: 3207423/2021 8[51]Thus, in order for the Tribunal to have jurisdiction to hear the claims relating to period 1, the Claimant would have to persuade me that it would be just and equitable to extend time.[52]The delay in bringing proceedings is very long indeed: the claims in period 1 are out of time by between 15 and 18 months.[53]I am satisfied that the Claimant knew, or ought reasonably to have known, about the Employment Tribunal and of her right under the Equality Act 2010 to complain to the Tribunal about disability discrimination: OH advised her in 2019 that she probably came under the Equality Act 2010; during period 1 the Claimant herself highlighted the need for reasonable adjustments at meetings with her managers. She was a member of a trade union (Community Trade Union) at all material times; she also had support from Mr Rahman of the Working Well Trust from 2019; thus, she had access to legal advice and support throughout. I do not accept her evidence that she did not know about time limits until she contacted ACAS; I find it implausible. However, if I am wrong about that, the process of issuing a Tribunal claim is not complex and is widely publicised online; a few minutes of research would have taken the Claimant to the necessary guidance. I have concluded that the Claimant did not issue Tribunal proceedings earlier, not because there was any impediment to her doing so, but because she chose not to do so.[54]Even if these factors did not point away from extending time, I consider that the prejudice to the Respondent of extending time for the allegations in period 1 would be very great. Firstly, there is the fact that it would be exposed to liability in relation to claims which are long out of time in a jurisdiction where Parliament has decided that time limits should be short and should require prompt action from employees. Secondly, and of greater significance, is the fact that each of the Respondent’s witnesses of fact giving evidence about period 1 had, at some point, difficulty recalling the events in question. I have no doubt that the cogency of the evidence has been affected by the passage of time. The prejudice to the Claimant is mitigated by the fact that she has other, more recent claims which she is still able to pursue, if time is not extended in relation to period 1. In my judgment, the balance of prejudice favours the Respondent.[55]For all these reasons, I decline to extend time on a just and equitable basis in relation to the claims in period 1. Consequently, the Tribunal lacks jurisdiction in relation to Issues 1-6, and 23 and 24, and they must be dismissed. Because I have reached that conclusion, I do not consider it a proportionate use of Tribunal time and resources to make detailed findings of fact about them.[56]As for period 2, Issues 7-12, 16 and 18 are also, on the face of it, out of time. However, because the potential for there to be conduct extending over a period is greater, I have made findings of fact. Findings of fact in relation to Issues 7-22 The Central Appointments Office (‘CAO’)[57]The Claimant started work in the CAO on 31 March 2020 as a Band 2 administrative assistant. She was line managed by Ms O’Connell. Case Number: 3207423/2021 9[58]The CAO booked first appointments for roughly 90% of outpatients at the Royal London and Mile End hospitals. On average it took 22,000 calls a month. There were around 60 to 65 staff members in the team. Issue 7. In around June 2020, the Claimant was asked to carry out a pre-screening role that was suitable for Band 3 staff but was too difficult for the Claimant as a Band 2 staff member.[59]In June 2020, the Claimant was assigned to the pre-screening team. Pre- screening was set up in response to Covid; its purpose was to check whether a patient who was due to attend hospital had symptoms of Covid before they came in.[60]The pre-screening team consisted of employees in Bands 2, 3 and 4, in part because people had been redeployed to the CAO team from various locations and different teams. The Claimant was the only Band 2.[61]The Claimant’s allegation in these proceedings is that requiring her to carry out this role was an act of direct disability discrimination because the work was too difficult for her as a Band 2 staff member.[62]The work consisted of telephoning a list of patients who were due to come into hospital, asking them whether they were experiencing any Covid symptoms and, if they were, advising them not to attend. I accept Ms O’Connell’s evidence that this was not difficult work; it was well within the Claimant’s capabilities. In her later grievance, the Claimant wrote: ‘I had to get advice from my union rep because I know other Band 2 staff was not asked to do pre-screening. I didn’t mind doing pre-screening I really enjoyed it. Even when it was really busy and stressful. I felt I was being used by my managers and when the pre-screening ended my colleagues will go on to be trained and I will be put in the post- room.’[63]There was no suggestion in her grievance that she considered that the issue related to her disability. The Claimant accepted in cross-examination that she felt she should have been on a par with other colleagues in terms of banding and pay; she ought to have re-banded; she was not treated fairly.[64]For the avoidance of doubt, although the pre-screening work was not explicitly referred to in the list of duties in the Claimant’s job description - the work only came into existence when the pandemic struck, after the job description had been created - the job description expressly states that the list is not exhaustive and that the employee may be required to perform other administrative tasks. Given the exceptionally challenging situation the Respondent was in because of the pandemic, it is unsurprising that updating job descriptions to reflect the many changes to its employees’ work, forced upon it by the pandemic, was not a priority. Issue 8. Christine O’Connell deliberately overburdened the Claimant with excessive tasks given the time available to do the pre-screening, in contrast to other staff who were not given the same excessive work.[65]When the Claimant was cross-examined on this claim, she said that she was not suggesting that Ms O’Connell acted deliberately to target her; rather, she said that the work was causing her ‘more stress and anxiety’. That is evidence Case Number: 3207423/2021 10 about the impact on the Claimant of the alleged treatment, it is not evidence that she was treated less favourably because of her disability. Ms O’Connell denied singling the Claimant out or treating her differently from others. I accept her evidence.[66]Moreover, the Claimant did not identify any specific occasions on which she was overburdened with work, or specific work she was given which was excessive. Issue 9. In Autumn 2020, the Claimant asked on around three occasions to be granted overtime for working beyond her contracted hours and was told that this was not possible, even though other employees in comparable roles were permitted to work overtime. She then asked on 24th December 2020 how does the overtime work and was informed by Christine O’Connell they have their own staff and they do it all the time.[67]Taking the allegation at face value, the Claimant appears to be complaining about not being paid when she exceeded her contracted hours. I accept Ms O’Connell’s evidence that there was no provision for additional payments in those circumstances unless an agreement was in place in advance to do overtime. There was no less favourable treatment.[68]If the allegation is understood as a claim that the Claimant was not allowed to do pre-booked overtime, there are no emails from autumn 2020, in which the Claimant raised the subject of overtime; she has not identified specific occasions on which she did so.[69]The only concrete evidence the Claimant relies on is a conversation she had with Ms O’Connell on 24 December 2020, which she covertly recorded, and which has been transcribed. Ms O’Connell has no memory of this conversation. That is hardly surprising, given that it was not a formal meeting; it was an informal chat held in passing. I do not infer anything from Ms O’Connell’s inability to recollect what the transcript now shows; she had no idea she was being recorded and would have had no reason to remember what she said.[70]The Claimant’s allegation is that Ms O’Connell said to her in this conversation, when asked how overtime worked, that ‘they [i.e. management] have their own staff and they do it all the time’. The clear implication of this allegation is that Ms O’Connell was seeking to dissuade the Claimant from doing overtime by suggesting that overtime was reserved to a select group, from which the Claimant was excluded.[71]When an accurate transcript of the recording was produced, it became apparent that Ms O’Connell did not say this. When asked by the Claimant how someone got overtime, Ms O’Connell replied ‘we have staff that do it. Are you on bank?’. The Claimant said that she ‘was on bank, it should be the same’. Ms O’Connell replied: ‘Right, so basically you are going to need to be virtualised next week’. Virtualisation was the process to enable an employee to undertake overtime. Ms O’Connell also observed: ‘a lot of people don’t want to do weekends and stuff’. Case Number: 3207423/2021 11[72]It was the Claimant, not Ms O’Connell, who later said ‘they do it all the time?’ The Claimant also said: ‘I don’t want to do it all the time but the odd one is okay’.[73]The Claimant accepted in cross-examination that Ms O’Connell did not say to her that she could not have overtime. I find that she did not in any way seek to dissuade the Claimant from doing overtime or exclude her from doing overtime; on the contrary, she asked the Claimant questions to prompt her to take the practical step (virtualisation) she would need to take; her comment about weekends was clearly a suggestion that overtime would most likely be available then.[74]I am not satisfied that the Claimant has proved, on the balance of probabilities, that she asked for overtime which was not given to her. Issue10. There was a one-month delay in responding to the Claimant’s request in November 2020 for a job description. Issue11. When the Claimant was given a job description on 18 December 2020, this was for the wrong job, not the job that the Claimant had been doing in pre-screening since June 2020.[75]The Claimant withdrew these allegations in the course of cross-examining Ms O’Connell. Issue 12. Whilst in the post room role in early 2021, the Claimant did not receive responses to her emails sent to Shirazul Islam and Christine O’Connell on 11th June 2021.[76]This relates to a period when the Claimant was working from home. There was a team meeting organised by Mr Islam on 11 June 2021 at 15:30 which was going to take place in the office. He sent an email round to staff working from home, asking them to cover calls until the meeting was finished; he said that the meeting would be carried out with them the following week when they were in the office. The Claimant emailed Mr Islam to say that she wanted to join the meeting virtually, but she did not get a reply. She followed up with an email to Ms O’Connell on 16 June 2021, asking for an update on what happened meeting, but did not get a reply. Neither Ms O’Connell nor Mr Islam could recall receiving the emails, nor why they did not reply. Issue 13. The Claimant’s attempts to log into online meetings from home 16th June and 9th July 2021 were unsuccessful, in that the Claimant believes she was barred from access to those online meetings.[77]The Claimant withdrew this claim; contemporaneous emails showed that both meetings were cancelled. Issue14. In or around March/April 2021 Mr Shirazul Islam took the Claimant off the training she had been allocated in order to complete two of her objectives set at her appraisal meeting with Koysol Ahmed (supervisor), namely how to carry out duties in the post room and dental duties. Issue15. In March 2021, the Claimant was excluded from certain duties in the job description for the post room role, including using the envelope machine the letters Case Number: 3207423/2021 12 and taking the post to and from the post room. Her role was restricted to uploading and scanning into the correct electronic files.[78]The Claimant withdrew these claims in the course of cross-examining Mr Islam. Issue 16. In June 2021, Christine instructed other team members to email the Claimant if they had queries, which put an unreasonable burden on the Claimant.[79]Ms O’Connell accepts that, if a team member had a query specifically for the Claimant about something she was working on, she would tell them to contact the Claimant directly, if she was working that day. Ms O’Connell’s evidence was that she would do the same if there was a query for another member of the team, if they were working that day.[80]The Claimant accepted that she did not know whether Ms O’Connell was taking the same approach with other members of the team; she said in cross- examination that she did not have any contact with other colleagues. Thus, she had no evidence, other than an assumption on her part, that Ms O’Connell was treating her less favourably than others.[81]I accept Ms O’Connell’s evidence; I find that she did not treat the Claimant less favourably than any other member of the team. Issue 17. There was a delay from 8th April 2021 to 5th August 2021 in providing the Claimant with the outcome of the sickness review meeting in April 2021.[82]On 8 April 2021, the Claimant attended a formal sickness absence outcome meeting, conducted by Ms O’Connell and Ms Walshe. After the meeting Ms O’Connell drafted a letter recording the outcome. The Respondent accepts that the Claimant did not receive that letter until 5 August 2021.[83]The Claimant’s case is that there were two pieces of information she was waiting to have confirmed: her working from home arrangement and her sickness absence target for the next three months. She had been told at the meeting that she could not work from home full-time but should continue to work one week from home and one week in the office. She had told been told that her sickness absence target was no absences in the next three months. She asked that both decisions be reconsidered.[84]The Claimant chased the outcome (if not the outcome letter) in emails dated 13 and 16 April 2021 to both managers; she specifically mentioned the working from home issue. Despite the Claimant’s attempt to persuade me otherwise, I find that she did not mention the issue of targets in either of these emails.[85]Ms O’Connell replied on 16 April 2021, stating that the decision about working from home would not be changed. She did not address the targets issue, probably because the Claimant had not mentioned it.[86]On 20 April 2021, the Claimant made a note that she had spoken to Ms O’Connell and asked for the outcome letter; Ms O’Connell said that she had prepared the letter but had forgotten to give it to the Claimant; she would do so later on. Case Number: 3207423/2021 13[87]Later in the day, Ms O’Connell spoke to the Claimant to say that she had had a discussion with Ms Walshe and they had decided that the Claimant could work from home, but that she would need to be referred to OH. There was no discussion about targets.[88]The Claimant attended an OH appointment and, from then on, worked from home.[89]It is clear from the unsent outcome letter, that Ms O’Connell and Ms Walshe had, in fact, amended the Claimant’s sickness absence target to 2 days sickness absence in the next three months.[90]There is no reference anywhere in the documents to the Claimant raising the issue of targets again. The Claimant accepted that she did not raise it in May, June or July. Her explanation for not following it up was that ‘it didn’t really matter because I was working from home… It was really not so much of an issue – but the fact that I did not get the outcome letter was upsetting to me’.[91]The letter was eventually sent to the Claimant on 5 August 2021 by Ms Walshe when the Claimant chased it. By then, some of the information contained in it was no longer accurate because of the change in the Respondent’s position on the Claimant working from home. Issue 18. 16th April 2021, Christine O’Connell and Sharon Walshe refused permission for the Claimant to work from home even though this was recommended government and NHS guidance at the time if this was possible.[92]This allegation also arises out of the same meeting of 8 April 2021. At that point the Claimant was working a pattern of one week at home, one week in the office. At the meeting Ms O’Connell told the Claimant that she had decided that this arrangement should not be changed. In her email of 16 April 2021. Ms O’Connell wrote: ‘as you can imagine we had lots of similar requests although we have looked at each on individual basis we unfortunately cannot allow you to work from home on a long-term basis, so we will need you to attend work one week every two.’[93]It was put to the Claimant in cross-examination that she was being treated the same as her colleagues; she agreed. Consequently, there was no less favourable treatment.[94]In her email of 19 April 2021, the Claimant wrote: ‘I am asking for this clarification as my GP strongly feels that the trust should reconsider increasing home working flexibility in my case in light of my underlying and long-term medical conditions which render me in the high risk category…’[95]She went on to refer to the Respondent making reasonable adjustments. The Claimant followed this up with a GP note on the same day. Ms O’Connell and Ms Walshe then changed their mind and, either on 19 or 20 April 2021, permitted the Claimant to work from home full-time. Issue 19. 16th July 2021, during a meeting to discuss the Claimant’ duties, Sharon Walshe disregarded information previously sent to her about the purpose of the meeting and failed to complete the meeting before bringing it to an end. Case Number: 3207423/2021 14[96]The Claimant had an online meeting with Ms Walshe on 19 July 2021, at which she was accompanied by her representative Mr Hassan Rahman. By an email dated 14 July 2021, Mr Rahman forwarded some documents to Ms Walshe in advance of the meeting. He wrote: ‘these documents reflect some of the outcomes and key points gleaned from the assessments undertaken with Julie. However as there is a lot of information, I will help steer our conversation to ensure we focus on the key points to help increasing understanding of how to support Julie to stay well and work.’[97]The Claimant’s evidence was that at the beginning of the meeting, Ms Walshe said ‘so what’s this meeting all about’. She inferred from this that Ms Walshe had not read the documents she had been sent and thought that this was disrespectful to Mr Rahman. Ms Walshe’s evidence was that she had read the documents before the meeting.[98]I accept that evidence. It is clear from Mr Rahman’s comments that he was expecting to lead the conversation and was not expecting Ms Walshe to be across all the detail. I find that Ms Walshe’s opening comment is more consistent with her deferring to Mr Rahman to lead the conversation, rather than not having any idea what the meeting was about.[99]Consequently, that part of this claim fails on its facts.[100]The second part of the allegation is that Ms Walshe failed to complete the meeting before bringing it to an end.[101]The Claimant accepts that that it was she who brought the meeting to an end because she believed that there was someone else in the room with Ms Walshe and that, when Ms Walshe assured her that there was not, she thought she was not telling the truth.[102]Consequently, that part of this claim fails on its facts as well, and the claim is dismissed. Issue 20. There was a significant delay in progressing and determining the Claimant’s grievance first raised on 14th October 2021 with Thomas Logan (divisional manager women’s health Barts health NHS trust). On 10th June 2022 Sati Bhachu (the Claimant’s union representative for community trade union) emailed Thomas Logan to request for an update or outcome of the grievance. 29th June 2022 Thomas Logan replied saying due to a change in HR this had caused a delay and he was on annual leave, and he was due back into work on 4th July 2022. He promised he would chase it up however he did not get back to the Claimant.[103]The Claimant first raised a grievance on 9 September 2022. She provided details of the grievance in an email of 14 October 2022.[104]The document was long and difficult to follow. It assumed the reader would be as familiar with the context and the personalities involved as the author. Much of it was historic and related to the issues the Claimant had encountered at Barts in 2017. Much, but not all of it, related to perceived slights and relatively minor disputes and disagreements with colleagues. Some of it, however, related to an alleged failure to provide support to the Claimant in relation to her mental health difficulties. Case Number: 3207423/2021 15[105]Some of the issues, relating to her time in the COA, were issues which she went on to raise in these proceedings, including the unfairness of being required to do pre-screening work as a Band 2, which I have rejected in this judgment; some of them the Claimant has herself withdrawn in these proceedings.[106]The Claimant described working relationships with staff members deteriorating, including what she regarded as hostile treatment. She described being overloaded with work and pressured to do certain types of work. She complained about not being given a variety of tasks to help unlearn and develop skills. She described bullying behaviour and favouritism by Ms O’Connell. She described being isolated at work. None of this ostensibly related to the Claimant’s disability.[107]However, in the ‘Conclusion’ section of the grievance the Claimant alleged that she had: ‘not been supported with my mental health since I started working at central appointments. All this has started to make me feel suicidal again in which I can’t understand why my managers are treating me like this … Since working at the NHS I have become a shadow of myself I don’t think I will ever be the same again … I wanted to raise this grievance a month ago after the meeting I had with Sharon, Christine and Hassan to discuss my Barts ability passport and any other ways of supporting me with my mental health because nothing has been put in place since I started at central appointments.’[108]In the ensuing paragraphs there are further references to the Claimant’s mental health, for example ‘all the stress of this has made me really unwell again and I have to take time off sick’.[109]Mr Logan was appointed to deal with the grievance. He emailed the Claimant on 18 October 2021 and suggested a face-to-face meeting, which took place on 15 November 2021. Mr Logan and the Claimant attended, as did the Claimant’s trade union representative and a representative of HR. The meeting lasted more than an hour. No notes were taken.[110]Mr Logan told the Claimant that the first avenue under the policy would be informal resolution. He invited her to complete a request for resolution under the dignity at work policy. He confirmed this in an email of 22 November 2021. He asked the Claimant and her representative at the meeting to put the grievance into a more concise and clear form.[111]The Claimant’s trade union representative submitted the form on 16 December 2021; it again contained a lengthy narrative; it was not much clearer than the original. However, there was a section titled ‘working from home and inconsideration to my health conditions’, which again raised issues about being ‘unsupported with my condition’. At one point she stated: ‘I am suffering from depression, anxiety and I have been since I had a breakdown when I was working at Bartholomew’s after being bullied at work and after raising a grievance for it to be ignored for a year’. In the outcome section she wrote: ‘Since I started at central appointments, I haven’t had a supervision to discuss any support I need to help with my mental health or my physical health. My Barts ability passport on my work stress assessment should have been reviewed but it wasn’t.’ Case Number: 3207423/2021 16[112]There was then a long period of delay. The Claimant’s representative chased in March and then again in June 2022. Mr Logan replied on 29 June 2022, apologising for the delay in explaining that there had been a changeover in HR support.[113]In July 2022 Mr Logan drafted a response to the Claimant, which he forwarded to HR for comment. The final version was not sent to the Claimant’s representative until the end of August 2022. Mr Logan’s evidence was that this was a result of a mix-up as to who was going to send the response. The gist of the response was that the Claimant was asked to clarify her grievance.[114]On 2 September 2022, the Claimant wrote to Mr Logan saying that she would like her complaints to be investigated, saying that she was distressed at the amount of time the process was taking, leading her to believe that he was not taking her complaint seriously.[115]On 20 September 2022, Mr Logan wrote to HR, asking that the Claimant’s complaint be passed to the dignity at work triage panel. It appears that never happened and the grievance progressed no further. Mr Logan’s evidence was that he thought that the matter was being progressed by the triage panel. He told the Tribunal that he did not make any enquiries as to whether that was correct. The Respondent has led no evidence about what did or did not happen after 20 September 2022.[116]The Claimant stated when she was being cross-examined that she believed that the delay was because Mr Logan did not take her complaint seriously because she has mental health difficulties and there is a stigma associated with that.[117]The Claimant put to Mr Logan that he did not take her allegations seriously because of her mental health. He disagreed. She relied on a passage in his witness statement, in which he had said the following: ‘Although I did not fully understand what Julie’s complaint was about, it struck me that her concerns seemed to relate to interpersonal issues between herself and colleagues that she had previously worked with at Saint Bartholomew’s and Royal London, but whom she no longer worked with, as well as similar concerns regarding her current colleagues in Central Appointments. Generally, the Trust’s approach where there are interpersonal issues (rather than allegations which are potentially more serious such as allegations of sexual harassment) will be to attempt to address the concerns informally, e.g. via mediation between the relevant members of staff. It is unusual that a complaint of this nature would be formally investigated in the first place; [it] is usually only a few attempts at informal resolution unsuccessful that there would be formal process.’[118]At the end of the previous paragraph, Mr Logan wrote: ‘The letter also described how Julie was suffering from anxiety and depression and was receiving support, counselling and medication from her community mental health team.’[119]That is the only reference to the Claimant’s mental health in Mr Logan’s witness statement. There is no reference to the complaints of lack of support in relation to her mental health. Issue 21. 2nd December 2021, the Claimant had her return to work meeting with Tasnia Sultana (Line manager for central appointment). In the meeting it was discussed regarding her occupational health report in which was recommended she Case Number: 3207423/2021 17 would work 50% at home and 50% in the office. Tasnia was unable to make the decision so was referred to Sharon Walshe in which Tasnia would get back to her with the outcome however she did not get back to the Claimant with the outcome.[120]This complaint relates Ms Sultana not coming back to the Claimant with a decision about the Claimant’s working pattern after a meeting on 2 December 2021.[121]It is not disputed that the Claimant met with Ms Sultana on 2 December 2021 (Thursday). Ms Sultana said she needed to consult with Ms Walshe because Ms Walshe was the person with authority to make the decision.[122]The Claimant approached Ms Walshe directly, shortly after the meeting with Ms Sultana and a meeting was arranged between Ms Walshe and the Claimant to take place on 09 December 2021 (Thursday). Ms Walshe reached a decision on 09 December 2021, and she told Ms Sultana what it was on the same day. Issue 22. 9th December 2021 the Claimant had asked Sharon Walshe if she could work from home as was recommend by occupational health (OH) report. She was informed by Sharon Walshe she could not work from home. She asked her if anyone was working from home in which her response was no. However the rostering system stated differently. When she challenged her about people working from home, her response was that they have health conditions however the Claimants health conditions was not considered and no reasonable adjustment was made as recommend by OH.[123]The Claimant was not told she could not work from home in accordance with OH’s recommendation. As per Ms Walshe’s e-mail to Ms Sultana, it was agreed on 9 December 2021 that the Claimant could work from home on Thursday and Fridays. This was 50% of her 4-day working week. That was in line with OH advice.[124]The Claimant sought to suggest Ms Walshe said something different to this at the meeting on 9 December 2021. There is no contemporaneous documentation to support this assertion. It is implausible that Ms Walshe would agree one thing with the Claimant and then e-mail Ms Sultana the same day confirming that she had agreed something different.[125]It is incorrect that the Claimant was told that she could not work from home, that no reasonable adjustments were made and that OH advice was ignored.[126]This claim fails on its facts. The law Direct discrimination
The law
[127]S.13(1) EqA provides: 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.[128]The question whether the alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did; the test is Case Number: 3207423/2021 18 subjective (Nagarajan v London Regional Transport [1999] ICR 877, per Lord Nicholls at 884). Lord Nicholls considered the distinction between the ‘reason why’ question from the ordinary test of causation in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at [29]: ‘Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach…The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.’[129]It is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of; it need not be the sole ground for the decision (Nagarajan at 886).[130]However, the fact that a claimant’s disability is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the reason for that treatment (per Underhill J (President) in Amnesty International v Ahmed [2009] ICR 1450 at [37]).[131]It is well-established that unfair treatment is not to be equated, as such, with discriminatory treatment (Glasgow City Council v Zafar [1998] ICR 12). Discrimination may, however, be inferred if there is no explanation for unreasonable behaviour (see the discussion in The Law Society v Bahl [2003] IRLR 640 (EAT) at [93-98], upheld by the Court of Appeal [2004] IRLR 799 at [100-101]).[132]In a case where an employee who raises a grievance about (say) sex discrimination which is then, for reasons unrelated to his or her gender, mishandled, the mishandling is not discriminatory simply because the grievance concerned discrimination. It is not a ‘but for’ test; the Tribunal must scrutinise the motivation of the alleged discriminator (Dunn v Secretary of State for Justice [2019] IRLR 298 CA, per Underhill LJ at [44]).[133]The Court of Appeal in Coyne v Home Office [2000] ICR 1443 makes clear that the employer will not be guilty of discrimination if an inadequate response to a grievance was demonstrably unrelated to the relevant protected characteristic of the Claimant.[134]In the disability discrimination legislation, where it is the fact of the disability which influences the decision-maker this will be direct disability discrimination (for example, prejudices about people living with a particular condition: see Stockton on Tees Borough Council v Aylott [2010] ICR 1278, which concerned stereotypical assumptions about people with mental health issues). Where the reason for the unfavourable treatment is because of something arising in consequence of the claimant’s disability the case falls within s.15 EqA.[135]The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical Case Number: 3207423/2021 19 comparator; and secondly going on to consider whether that treatment is because of the protected characteristic, here race/religion.[136]It is an essential element of a direct discrimination claim that the less favourable treatment must give rise to a detriment (s.39(2)(d) EqA). There is a detriment if ‘a reasonable worker would or might take the view that [the treatment was] in all the circumstances to his detriment’ (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 at [35]). An unjustified sense of grievance does not fall into that category. The burden of proof[137]The burden of proof provisions are contained in s.136 EqA:(1) This section applies to any proceedings relating to a contravention of this Act.(2) 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.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[138]The operation of the burden of proof provisions was summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi [2020] IRLR 118 at [18]: ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy.1 He explained the two stages of the process required by the statute as follows:(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.’ 1 Madarassy v Nomura International plc [2007] ICR 867, CA Case Number: 3207423/2021 20[139]The consequence of the way that s 136 works is that, if a respondent fails to show that the relevant protected characteristic played no part in its motivation for doing the act complained of, a tribunal is not obliged to make a positive finding as to whether or how it did so: indeed one of the reasons for the (partial) reversal of the burden of proof which it effects is that it can often be very difficult for a claimant to prove what is going on in the mind of the putative discriminator (per Underhill LJ in Otshudi at [44]).[140]The burden of proof provisions should not be applied by the Tribunal in an overly mechanistic manner: see Khan v The Home Office [2008] EWCA Civ 578 per Maurice Kay LJ at [12]. The approach laid down by s.136 EqA will require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of s.136 will be of little assistance: see Martin v Devonshires Solicitors [2011] ICR 352 at [39], approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 at [32].[141]As for the ‘something more’ required to shift the burden, Sedley LJ observed in Deman v Equality and Human Rights Commission [2010] EWCA Civ 1279 at [19]: ‘the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.’[142]Paragraph 16.44 of the statutory Code of Practice on the Equality Act 2010, gives effect to section 15(4) of the Equality Act 2006 by emphasising that employers should keep records to justify decisions and states: ‘If the employer does not keep records of their decisions, in some circumstances, it could result in an Employment Tribunal drawing an adverse inference of discrimination.’[143]This is further emphasised in paragraph 17.4 of the Code, which says: ‘Where resources permit, employers are strongly advised to maintain proper written records of decisions taken in relation to individual workers, and the reasons for these decisions. Keeping written records will help employers reflect on the decisions they are taking and thus help avoid discrimination.’[144]The Tribunal may draw adverse inferences against the employer because of its failure to adduce evidence and/or call the actual decision makers who alone could explain the reason why the act/omission occurred. In Wisniewski v Central Manchester Health Authority [1998] PIQR P324, Brooke LJ laid down certain principles as to when drawing an adverse inference might be appropriate against a party who could call a potentially relevant witness but fails to do so. Essentially an adverse inference can be drawn where there was a case to answer; the witness could have been expected to give material evidence; and there was no credible evidence given for not calling him. Conclusions on Issues 7-22[145]The Claimant withdrew the following issues: Issues 10, 11, 13, 14 and 15. They are dismissed. Case Number: 3207423/2021 21 Issue 7. In around June 2020, the Claimant was asked to carry out a pre-screening role that was suitable for Band 3 staff but was too difficult for the Claimant as a Band 2 staff member.[146]The claim which the Tribunal is being asked to determine (that the work was too difficult for the Claimant and that, in requiring her to do it, the Respondent treated her less favourably than a person without her disability) is quite different from the one which she raised at the time (that it was unfair to ask her to do it without re-banding her).[147]That claim of disability discrimination fails on its facts because (as I have found at para 62) the work was not too difficult for her. In the course of the hearing, the Claimant accepted that she could not explain the connection between the treatment and her disability. The claim is not well-founded and is dismissed. Issue 8. Christine O’Connell deliberately overburdened the Claimant with excessive tasks given the time available to do the pre-screening, in contrast to other staff who were not given the same excessive work.[148]The Claimant withdrew the allegation that Ms O’Connell acted deliberately. I have found that there was no less favourable treatment (para 65). Further, no specific occasions were identified by the Claimant; the allegation is very generalised.[149]When the Claimant cross-examined Ms O’Connell on this issue, I asked her whether she was going to put to Ms O’Connell that the reason for the alleged treatment was disability, the Claimant said No. Although she did not formally withdraw the claim, she effectively did not pursue it.[150]For all these reasons the claim is not well-founded; it is dismissed. Issue 9. In Autumn 2020, the Claimant asked on around three occasions to be granted overtime for working beyond her contracted hours and was told that this was not possible, even though other employees in comparable roles were permitted to work overtime. She then asked on 24th December 2020 how does the overtime work and was informed by Christine O’Connell they have their own staff and they do it all the time.[151]The Claimant’s allegation is factually unsustainable (paras 67-74 above). Ms O’Connell did not say what the Claimant alleged she said. The fact that the Claimant made this covert recording of a casual chat with her manager and then gave an inaccurate account of its contents does not reflect well on her.[152]The claim is not well-founded; it is dismissed. Issue 12. Whilst in the post room role in early 2021, the Claimant did not receive responses to her emails sent to Shirazul Islam and Christine O’Connell on 11th June 2021.[153]The Claimant did not put to Mr Islam that his failure to reply was an act of disability discrimination. In fact, the Claimant said ‘I understand that he probably made a mistake and forgot, but it made me feel isolated’; that, of course, is a non-discriminatory explanation for the treatment. Case Number: 3207423/2021 22[154]I have concluded that the claim against Mr Islam was not pursued and it is dismissed. Alternatively, there is no evidence from which I could reasonably conclude that the Claimant’s disability was a material influence on Mr Islam’s conduct.[155]The Claimant put to Ms O’Connell that it was indirectly discriminatory because she was working at home by reason of her disability. That is not the claim she has brought, which is a claim of direct disability discrimination. There is no evidence from which I could reasonably conclude that Ms O’Connell did not reply because of the Claimant’s disability or that she treated the Claimant less favourably than she treated, or would have treated, a person without the Claimant’s disability.[156]Accordingly, the burden of proof does not pass to the Respondent to provide a non-discriminatory reason for Ms O’Connell’s failure to respond and the claim against her is dismissed. Issue 16. In June 2021, Christine instructed other team members to email the Claimant if they had queries, which put an unreasonable burden on the Claimant.[157]Because there was no less favourable treatment (para 81), this claim of direct disability discrimination fails and is dismissed.[158]Although not strictly necessary to do so, I observe that it is difficult to see how being asked to deal with queries about matters you are working on could be objectionable. A reasonable employee, in my view, would regard this as a normal part of their duties. If the Claimant had a sense of grievance about, it was unjustified; consequently, there was no detriment. Issue 17. There was a delay from 8th April 2021 to 5th August 2021 in providing the Claimant with the outcome of the sickness review meeting in April 2021.[159]Clearly the letter should have been sent to the Claimant when it was drafted, which must be at some point between 8 and 20 April 2021 (para 86 above); that was regrettable. However, I am not satisfied that there is evidence before me from which I could reasonably conclude that the failure to send the letter was in any way influenced by the fact that the Claimant was a disabled person, or that the Claimant was treated less favourably than a person without her disability was or would have been treated.[160]There is nothing to persuade me that Ms O’Connell failed to send the letter for an improper reason; there is nothing to suggest that the letter was deliberately withheld because of the Claimant’s disability; it was a straightforward administrative letter, which summarised what was said at a meeting. The Claimant suggested in cross-examination that she believed that Ms O’Connell deliberately did not send the outcome letter to her to prevent her from taking two days sickness absence. In my judgment, that is implausible; there is no evidence to support it. I think it more likely that it was simply an oversight on Ms O’Connell’s part at a very busy time. It was not sent until August because Ms O’Connell had forgotten about it and the Claimant was no longer greatly worried about targets, as she acknowledged in her own evidence (para 90).[161]Consequently, the claim is not well-founded and is dismissed. Case Number: 3207423/2021 23 Issue 18. 16th April 2021, Christine O’Connell and Sharon Walshe refused permission for the Claimant to work from home even though this was recommended government and NHS guidance at the time if this was possible.[162]As a claim of direct disability discrimination, this claim is misconceived. The Claimant was not subjected to less favourable treatment because of her disability. She was treated the same as everyone else, at least until the Respondent acceded to her request, when she was treated more favourably than others (paras 92-95).[163]Even if the Claimant had brought this as a claim for failure to make reasonable adjustments - which she did not - that claim would have been bound to fail because, having asked for an adjustment to be made in her case, and provided a GP letter in support, Ms O’Connell and Ms Walshe then made the adjustment, either the same day or the day after. The Respondent made the reasonable adjustment within a reasonable period. Issue 19. 16th July 2021, during a meeting to discuss the Claimant’ duties, Sharon Walshe disregarded information previously sent to her about the purpose of the meeting and failed to complete the meeting before bringing it to an end.[164]For reasons I have already given (paras 96-102) this claim fails on its facts; it is dismissed. Issue 20. There was a significant delay in progressing and determining the Claimant’s grievance first raised on 14th October 2021 with Thomas Logan (divisional manager women’s health Barts health NHS trust). On 10th June 2022 Sati Bhachu (the Claimant’s union representative for community trade union) emailed Thomas Logan to request for an update or outcome of the grievance. 29th June 2022 Thomas Logan replied saying due to a change in HR this had caused a delay and he was on annual leave, and he was due back into work on 4th July 2022. He promised he would chase it up however he did not get back to the Claimant.[165]I began by asking myself whether the Claimant has proved facts from which, in the absence of an adequate explanation, I could reasonably conclude that disability was a factor in the delay in progressing the grievance and the ultimate failure to deal with it at all (paras 103-119). At this first stage it is legitimate to take into account all evidence which is potentially relevant to the complaint of discrimination, other than the absence of an adequate explanation. I considered the following factors to be relevant. 165.1. The delay during the period when Mr Logan had some involvement was exceptionally long, even by NHS standards. 165.2. There was not merely a delay; there was a total failure to deal with the grievance. 165.3. Mr Logan has never enquired as to what happened after he directed that the grievance be referred to the triage panel. 165.4. In describing the grievance in his witness statement, Mr Logan contrasted it with ‘allegations which are potentially more serious such as allegations of sexual harassment’. Case Number: 3207423/2021 24 165.5. Mr Logan omitted any mention of the unequivocal complaints by the Claimant - in both the original and revised versions of the grievance - that she had not been given support by her employer in relation to her mental health since she started working Central Appointments. 165.6. There are barely any records of the decision-making process: no notes were taken of the meeting the Claimant had with Mr Logan; there are scant records of discussions between Mr Logan and HR. 165.7. On the face of it, HR was as much to blame for the failure, if not more, than Mr Logan, yet no one from HR was called by the Respondent to give evidence as to its part in the failure to deal with the grievance in a timely fashion or at all. 165.8. Complaints of disability discrimination are (self-evidently) likely to be brought by disabled people, as they were in this case.[166]Taking all the factors set out above together, I consider that I could properly infer from them that Mr Logan had a stereotypical assumption that grievances which contain complaints of a failure to provide support in relation to long-term mental health difficulties, which are likely to be brought by a disabled employee, are inherently less serious than other types of complaints, such as complaints of sexual harassment, where there is no particular likelihood that the complainant will be a disabled person. I could reasonably conclude that that was part of the reason (it need not be the entire reason, or even the predominant reason) why he did not ensure that the grievance was dealt with in a timely manner, or indeed at all. I could infer from his failure to mention the clear complaints of lack of support for the Claimant’s mental health that he was being evasive. I could also reasonably infer from the failure to call any witness from HR that the Respondent was avoiding calling evidence which would be unhelpful to its defence.[167]I have concluded that the burden shifts to the Respondent to show that the failure to deal with the grievance was in no sense whatsoever because of disability.[168]At this second stage, I remind myself of the guidance in In Igen v Wong [2005] ICR 931, in which the Court of Appeal said: ‘(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [sex/disability], since "no discrimination whatsoever" is compatible with the Burden of Proof Directive. (12) That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that [sex/disability] was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the Respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof […].’[169]Mr Logan is a very senior manager in the Respondent, who undoubtedly will have had many other pressing matters to deal with. Nonetheless, he accepted the task of dealing with this grievance and he did not complete it. Case Number: 3207423/2021 25[170]I observe that he was in many respects a candid witness who acknowledged that the failures in this case were unacceptable. The Respondent’s decision not to call any witnesses from HR put him in the difficult position of having to explain their failures as well as his own, which he was unable to do with any degree of detail.[171]As for the delay from December 2021, when the second version of the grievance was lodged, to June 2022, Mr Logan’s evidence was that this was a very difficult time within the Respondent, coming out of Covid. There were significant operational issues within the hospital, as it looked to reinstate clinical activity. I accept that both he and the organisation were under a great deal of operational pressure at this time. But this very high-level, generalised account does not satisfactorily explain why Mr Logan did nothing at all to progress the Claimant’s grievance over a period of six months, not even asking someone else to chase it, or even to deal with it on his behalf, apparently not even making any enquiries as to whether anything had been done or could be done to progress it.[172]I am told that there was a handover of HR staff and a big backlog of employee relations issues at the time. Again, my difficulty with this as an explanation is that it is so generalised. No detail was provided as to the nature of the ‘handover of HR staff’. I can understand why something of that sort might lead to some delay in progressing an individual’s grievance; I have not been told why it would lead to a delay of six months. What was it about this handover that meant that nothing was done?[173]I am told that in the latter part of 2022, Mr Logan was also dealing with the consequences of the Ockenden report into maternity services at the Royal London Hospital. Of course that must have been a challenging time, but again no explanation as been given as to why nothing of substance was done to progress the grievance. I am told that there was some confusion as to who should write to the Claimant, but I was given no detail about how that confusion arose, or when it came to light.[174]Further, it is clear that Mr Logan instructed HR to pass the grievance to the triage panel in September 2022. The Respondent has led no evidence at all as to what happened thereafter and why. I can only assume that nothing happened.[175]Mr Logan did not provide a satisfactory explanation for the omissions in his witness statement. He did not lead evidence that he would habitually have presided over a complete failure by the Respondent to deal with a grievance which was similarly serious, but which was brought by a person without a mental health disability and/or did not concern allegations which amounted to allegations of disability discrimination. I would be very surprised if that were the case.[176]In short, while the Respondent has provided some explanation for the delay, it is partial and in the most general terms. It does not provide a satisfactory, non- discriminatory explanation for such a complete failure. To use the language of Coyne, the Respondent has not proved that the failure was demonstrably unrelated to the relevant protected characteristic of the Claimant, which is disability. Case Number: 3207423/2021 26[177]In my judgment, the Respondent has not discharged the burden on it to show that disability was in no sense whatsoever a factor in the delay. Consequently, applying the provisions of the burden of proof, I must uphold this claim of direct disability discrimination.[178]For the avoidance of doubt, the fact that Mr Logan told me that he did not know the Claimant was a disabled person does not assist the Respondent. There is no knowledge requirement in a claim of direct disability discrimination. The Respondent has conceded that the Claimant’s mental health impairments was a disability at the material time. In any event, Mr Logan knew from the grievance documents about the Claimant’s mental health problems, that they were long-lasting and that they were a significant part of her grievance. Issue 21. 2nd December 2021, the Claimant had her return to work meeting with Tasnia Sultana (Line manager for central appointment). In the meeting it was discussed regarding her occupational health report in which was recommended she would work 50% at home and 50% in the office. Tasnia was unable to make the decision so was referred to Sharon Walshe in which Tasnia would get back to her with the outcome however she did not get back to the Claimant with the outcome.[179]Given the Claimant’s non-working day was a Monday, there were only 3 working days between the Claimant’s meeting with Ms Sultana and Ms Walshe’s decision being communicated to the Claimant (para 120 onwards).[180]In my judgment, there was nothing unreasonable about that delay. Indeed, the Claimant accepted in cross-examination that the combination of the fact that it was winter and the fact of the Covid pandemic meant that there was a lot going on in the hospital. If the Claimant had a sense of grievance about the short delay, it was unjustified. Consequently, there was no detriment, and the claim must fail.[181]If there was a detriment, the Claimant has not provided any facts from which I could reasonably conclude that there was less favourable treatment or, if there was, that it was because of her disability. The claim would fail for those reasons as well. Issue 22. 9th December 2021 the Claimant had asked Sharon Walshe if she could work from home as was recommend by occupational health (OH) report. She was informed by Sharon Walshe she could not work from home. She asked her if anyone was working from home in which her response was no. However the rostering system stated differently. When she challenged her about people working from home, her response was that they have health conditions however the Claimants health conditions was not considered and no reasonable adjustment was made as recommend by OH.[182]This claim fails on its facts (paras 123-126); I agree with Ms Patterson that it is misconceived; it is dismissed. Final observations[183]In her evidence, the Claimant said that her managers during the material period consistently failed to support her in relation to her mental health. I acknowledge that this is her perception. However, having heard her own Case Number: 3207423/2021 27 account and that of the Respondent’s witnesses from both periods, I have concluded that it is not an accurate or a fair account.[184]On the evidence I have heard about the period November 2018 to December 2021, I consider that the Claimant’s managers have been consistently supportive of her. Many adjustments have been made. Allowance has been made for repeated, and sometimes lengthy, sickness absences. The Claimant has been permitted to work from home when others have not. In my view, the Respondent has gone to considerable lengths to support the Claimant as a disabled person and has shown patience and flexibility.[185]I mention this because, having upheld the single claim in relation to the failure to deal with the Claimant’s grievance, I think it is important that the Claimant should not read into my decision on that issue that I have formed the view that, had the grievance been dealt with in a timely fashion, it would necessarily have been decided in her favour. On the contrary, given that so much of it mirrors the complaints she has brought in these proceedings, many of which she has withdrawn on reflection, and all but one of which I have rejected, I think it more likely that the grievance would not have been upheld. It should nonetheless have been treated seriously and dealt with in a timely fashion. Employment Judge Massarella Date: 7 August 2025 APPENDIX: LIST OF ISSUES Direct disability discrimination Was the Claimant treated unfavourably because of her disability in the following respects? She compares her treatment to the treatment that a hypothetical non- disabled comparator would have received, save where specified otherwise. Issue 1. 8th January 2020, the Claimant became unwell in the afternoon and wanted to take discretionary break due to a busy clinic as agreed in her stress management plan. She was unable to take it due to the nurse in charge not being around for over 20 minutes. Next day in a meeting she was informed that she could no longer have an afternoon break by Shenaz Vallianni. Issue 2. 4th February 2020 the Claimant was rejected from receiving ECG and phlebotomy training despite it was agreed in her appraisal by her band 6 team leader Jerry. Issue 3. 13th February 20220 the Claimant had asked Christell (band 7 manager) to fill in a Barts ability form in and she had refused and stated that she had to wait for the occupational health referral first. However, Christell completed it for another member of staff without their occupational health referral. Issue 4. 21st February 2020 Christell (band 7 manager) sent the Claimant home due to her foot condition which was causing her discomfort. She had Case Number: 3207423/2021 28 asked to be put on light duties as she felt that they were reasonable adjustment which Christell had refused to implement and sent the Claimant home as unwell. As a result of the Claimant going home due to sickness, this lead to a break in the sickness policy resulting a stage 3 sickness meeting. Issue 5. 27th February 2020 the Claimant had a return to work meeting with Shenaz and Christell informing her that she was not down as having a disability with occupational health or her GP and that they are not going down the disability pathway. They also stated that she was going to final sickness stage 3 meeting. Issue 6. 27th March 2020 Emma Staddon refusing to redeploy the Claimant to non-Covid wards as recommended by her GP’s note. Emma also stated that she would go against GP advice. The GP’s note was handed in to Ms Staddon before the meeting. Issue 7. In around June 2020, the Claimant was asked to carry out a pre- screening role that was suitable for Band 3 staff but was too difficult for the Claimant as a Band 2 staff member. Issue 8. Christine O’Connell deliberately overburdened the Claimant with excessive tasks given the time available to do the pre-screening, in contrast to other staff who were not given the same excessive work. Issue 9. In Autumn 2020, the Claimant asked on around three occasions to be granted overtime for working beyond her contracted hours and was told that this was not possible, even though other employees in comparable roles were permitted to work overtime. She then asked on 24th December 2020 how does the overtime work and was informed by Christine O’Connell they have their own staff and they do it all the time. Issue 10. There was a one-month delay in responding to the Claimant’s request in November 2020 for a job description. Issue 11. When the Claimant was given a job description on 18 December 2020, this was for the wrong job, not the job that the Claimant had been doing in pre-screening since June 2020. Issue 12. Whilst in the post room role in early 2021, the Claimant did not receive responses to her emails sent to Shirazul Islam and Christine O’Connell on 11th June 2021. Issue 13. The Claimant’s attempts to log into online meetings from home 16th June and 9th July 2021 were unsuccessful, in that the Claimant believes she was barred from access to those online meetings. Issue 14. In or around March/April 2021 Mr Shirazul Islam took the Claimant off the training she had been allocated in order to complete two of her objectives set at her appraisal meeting with Koysol Ahmed (supervisor), namely how to carry out duties in the post room and dental duties. Case Number: 3207423/2021 29 Issue 15. In March 2021, the Claimant was excluded from certain duties in the job description for the post room role, including using the envelope machine the letters and taking the post to and from the post room. Her role was restricted to uploading and scanning into the correct electronic files. Issue 16. In June 2021, Christine instructed other team members to email the Claimant if they had queries, which put an unreasonable burden on the Claimant. Issue 17. There was a delay from 8th April 2021 to 5th August 2021 in providing the Claimant with the outcome of the sickness review meeting in April 2021. Issue 18. 16th April 2021, Christine O’Connell and Sharon Walshe refused permission for the Claimant to work from home even though this was recommended government and NHS guidance at the time if this was possible. Issue 19. 16th July 2021, during a meeting to discuss the Claimant’ duties, Sharon Walshe disregarded information previously sent to her about the purpose of the meeting and failed to complete the meeting before bringing it to an end. Issue 20. There was a significant delay in progressing and determining the Claimant’s grievance first raised on 14th October 2021 with Thomas Logan (divisional manager women’s health Barts health NHS trust). On 10th June 2022 Sati Bhachu (the Claimant’s union representative for community trade union) emailed Thomas Logan to request for an update or outcome of the grievance. 29th June 2022 Thomas Logan replied saying due to a change in HR this had caused a delay and he was on annual leave, and he was due back into work on 4th July 2022. He promised he would chase it up however he did not get back to the Claimant. Issue 21. 2nd December 2021, the Claimant had her return to work meeting with Tasnia Sultana (Line manager for central appointment). In the meeting it was discussed regarding her occupational health report in which was recommended she would work 50% at home and 50% in the office. Tasnia was unable to make the decision so was referred to Sharon Walshe in which Tasnia would get back to her with the outcome however she did not get back to the Claimant with the outcome. Issue 22. 9th December 2021 the Claimant had asked Sharon Walshe if she could work from home as was recommend by occupational health (OH) report. She was informed by Sharon Walshe she could not work from home. She asked her if anyone was working from home in which her response was no. However the rostering system stated differently. When she challenged her about people working from home, her response was that they have health conditions however the Claimants health conditions was not considered and no reasonable adjustment was made as recommend by OH. Failure to make reasonable adjustments Case Number: 3207423/2021 30 Issue 23. 13th February 2020 Shenaz Vallianit refusing to lighten the Claimant’s workload, despite the Claimant asking her to do so. The Tribunal understands that the provision, criterion or practice relied upon by the Claimant was the workload that applied to those employees performing the same role as the Claimant. This placed the Claimant at a substantial disadvantage given the state of her mental health. The reasonable adjustment that the Claimant considers should have been made was to remove some of her duties and so lighten her workload. Issue 24. Also on 13th February 2020, refusing to adjust the trigger points under the sickness absence policy in the light of the Claimant’s mental health. On this day the Claimant had an end of probation meeting with Shenaz Valliani. She was informed that she needed to complete another three months without any days off as it will progress to stage 2 sickness meeting despite her health issues. The provision criterion or practice relied upon by the Claimant is the requirement in the sickness absence policy that the Claimant would progress to stage 2 if she exceed a certain number of days of sickness absence. This placed the Claimant at a substantial disadvantage given her mental health. It should have been adjusted to increase the number of days of sickness absence permitted to the Claimant before triggering a stage 2 sickness meeting. Case Number: 3207423/2021 1 EMPLOYMENT TRIBUNALS Claimant: Ms J. Burns Respondent: Barts Health NHS Trust Heard at: East London Hearing Centre On: 12 December 2025 Before: Employment Judge Massarella Representation Claimant: In person Respondent: Ms H. Patterson (Counsel)
The law
[1]the Claimant is entitled to an award for injury to feelings in relation to her successful claim of direct disability discrimination (at Issue 20) in the amount of £15,000;[2]she is entitled to interest on that sum in the amount of £4,497.53;[3]those sums relate to discrimination which occurred during employment (i.e. they do not relate to the termination of employment) and, accordingly, are not taxable.