Mr S Smith v Cambridge University Hospitals NHS Foundation Trust: 3304557/2022
EMPLOYMENT TRIBUNALS
Case No 3304557/2022
Between
Mr S SmithClaimantCambridge University Hospitals NHS Foundation TrustRespondent
Before
Employment Judge M Warren
Members
Ms L Davies and Mrs N ChristofiIn person for claimantMr R Hignett (instructed by Counsel) for respondentDate 2 June 2025
JUDGMENT
[1]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.[2]The complaint of unfair dismissal is not well-founded and is dismissed.[3]The complaint of direct sex discrimination is well-founded and succeeds.[4]The remedy to which the Claimant is entitled shall be determined at a remedy hearing by CVP on 27 and 28 October 2025.[5]Case management orders will follow separately. Approved by:
REASONS
[1]Mr Smith was employed by the Respondent as a Healthcare Support Worker between 14 May 2018 and 13 June 2022, having resigned his employment by a letter dated 2 March 2022. After Early Conciliation between 3 March and 4 April 2022, he issued these proceedings claiming constructive unfair dismissal, disability discrimination and sex discrimination on 14 April 2022.[2]The case was managed by Employment Judge Harrington at a Preliminary Hearing on 16 February 2023.[3]It is not disputed that Mr Smith was at all material times a disabled person by reason of depression, low mood, panic attacks and PTSD.
The Issues
[4]The issues were identified at the preliminary hearing before EJ Harrington. A draft List of Issues was produced before the hearing.Tthat was discussed and agreed during the hearing. The agreed List of Issues are set out in the Preliminary Hearing Summary.[5]At the outset of this hearing, both parties confirmed to us that we may rely upon the List of Issues as correctly identifying the issues in this case.[6]During oral evidence, Mr Smith suggested that Allegation 2.2.3 in relation to his claim of constructive unfair dismissal, ought really to have appeared as an allegation of failure to make reasonable adjustments and that it did not belong in the list of allegations said to amount to a breach of the implied term of mutual trust and confidence.[7]In preliminary discussions, Mr Smith confirmed on enquiry from the Tribunal, that his complaint of failure to make reasonable adjustments is not that the Respondent did not exempt him from the duty known as ‘specialling’ altogether, but that it did not exempt him from specialling aggressive or violent patients, which is how his reasonable adjustment claim is put in the List of Issues.[8]The Agreed List of Issues as identified by EJ Harrington appears below by way of cutting and pasting. The Agreed List of Issues 1 Claimant’s claims1.1 Constructive unfair dismissal (s95(1)(c) Employment Rights Act 1996, “ERA”)1.2 Disability discrimination1.3 Sex discrimination 2 Constructive unfair dismissal2.1 Did the Respondent commit a fundamental breach of an express or implied term of Claimant’s contract of employment?2.2 By reference to the Claim Form, the Claimant alleges that the Respondent breached the express/implied terms as follows:2.2.1 Requiring the Claimant to perform duties for which he had not received training. Specifically, the Respondent assigning the Claimant ‘special patients’ without providing him with control and restraining training2.2.2 Requiring the Claimant to ‘special’ for more than two hours consecutively in breach of para 7 point 4 of the Respondent’s Specialling Policy2.2.3 Claire Chapman, making a comment in an Occupational Health referral on 15/12/2021 that “ whilst we can continue to implement the restrictions on a temporary basis, we cannot implement these indefinitely due to the nature of Stuart’s role” (a reference to specialling)2.2.4 Sarah Hardy writing to the Claimant on 14/02/2022 requiring a return with no changes to be made to the practice of Specialling or to the Claimant’s role in relation to Specialling2.3 If so, was that breach sufficiently serious to justify the Claimant resigning?2.4 If so, did the Claimant resign in response to that breach?2.5 If so, did the Claimant delay too long in terminating the contract of employment as a response to the breach that is relied upon? 3 Disability3.1 It is agreed by the parties that the Claimant is a disabled person within the provisions of the Equality Act 2010 (“EqA”) during the relevant period because of the following conditions: 3.1.1 PTSD, Depression, low mood, panic attacks, self-harming behaviour3.2 Did the Respondent know, or ought reasonably to have known, of the Claimant’s alleged disabilities during the relevant period? 4 Disability discrimination Failure to make reasonable adjustments4.1 Did the Respondent apply the following provision, criteria and/or practice (“PCP”), namely: 4.1.1 The requirement to special aggressive and/or violent patients4.2 If so, did the application of any such PCP put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who do not have the Claimant’s disability? 4.2.1 Exacerbated known mental health issues including PTSD, anxiety and depression4.3 Did the Respondent known or could it reasonably be expected to know that the Claimant was likely to be placed at the stated disadvantage?4.4 If so, did the Respondent take such steps as were reasonable to avoid the disadvantage? The Claimant asserts that the following were reasonable adjustments that the Respondent could have made: 4.4.1 Permanent exemption from specialling known aggressive and violent patients. C asserts it would have been reasonable to do this following the referral on 28 November 2019 to occupational health 5 Sex discrimination Direct sex discrimination (s13 Equality Act 2010)5.1 Did the Respondent assign the Claimant to ‘special patients’ who were aggressive and/or violent patients on the following dates and wards: 4 October 2018 L4 ward, 14 February 2019 J3 ward, 26 July 2019 J2 ward, 29 January 2021 L4 ward, 21 March 2021 N2 ward (occasions on which C was harmed and requiring treatment) and on the following other occasions when so assigned but not physically harmed to the extent he required medical treatment: on an occasion between 21 March 2021 and 25 May 2021 and on 25 May 2021 N2 ward?5.2 Was the Claimant treated less favourably than the Respondent treated or would have treated persons who are a different gender to the Claimant in the same or not materially different circumstances as the Claimant?5.3 The Claimant identifies the following comparators:5.3.1 In respect of the 5 occasions when the Claimant was harmed and required treatment he compares himself to the female HCA’s on duty with him on those wards on those dates5.3.2 In respect of the other occasions when the Claimant was not physically harmed and didn’t require treatment he compares himself to the female HCA’s on duty with him on Ward N2 (this is because C was required to move wards on those dates)5.4 If so, was the treatment because of the Claimant’s sex? 6 Jurisdiction6.1 Are any of the Claimant’s complaints brought outside the relevant time limit specified in section 123 Equality Act 2010?6.2 If so, would it be just and equitable for the Employment Tribunal to extend time? 7 Remedy 7.1 If the Claimant is successful, what compensation should the Employment Tribunal award to the Claimant? End of Agreed List of Issues Evidence[9]We had before us an 81 page witness statement from Mr Smith, who gave evidence. He did not call any other witnesses.[10]For the Respondents, we had before us witness statements from: 10.1. Ms H Oakley, Divisional Head of Nursing for Division B, Investigator; 10.2. Mrs S Arthur, Employee Relations Manager, Division A, ER Advisor at the time in question; 10.3. Mr D Cleave, Head of Nursing for Division C, Commissioned Investigation; 10.4. Mrs S Hardy, Senior Sister for Division C, Ward Manager Ward N2; 10.5. Miss C Mills, Divisional Head of Workforce for Division A; 10.6. Miss C Hames, Senior Sister for Division A, Ward Manager Ward L4; 10.7. Miss C Chapman, Matron for Division C; and 10.8. Ms Rachel May, Divisional Head of Nursing for Division A.[11]At the outset of the hearing, we read all of the witness statements and read or looked at in our discretion, the documents referred to.[12]Ms May was not called to give evidence, we heard oral evidence from all of the other witnesses.[13]We made clear at the outset that we do not read all of the documents in the bundle and that the parties must make sure that they take us to the relevant passages in the documents during the course of oral evidence.[14]We received comprehensive written submissions from Mr Smith and Mr Hignet which were very helpful and for which we are grateful. We also heard oral submissions from both of them. Adjustments in the Hearing[15]We enquired of Mr Smith what adjustments we might need to make to the hearing in order to facilitate his participation without disadvantage because of his disabilities. I explained that we would break every 50 minutes for 10 minutes, that we would always take lunch between 1pm and 2pm and that we would always finish at 4pm or shortly thereafter. We adhered to that timetable.[16]Mr Smith confirmed that there were no other adjustments he felt would be helpful other than for the Tribunal to keep in mind that from time to time he may become upset and find it difficult to focus, which we did. There were occasions when we paused for that reason. The Law Discrimination
The Law
[17]The relevant law is set out in the Equality Act 2010.[18]Section 39(2)(c) proscribes an employer from discriminating against an employee by, at (d) subjecting the employee to detriment.[19]Section 39(5) imposes on an employer a duty to make reasonable adjustments Direct Sex Discrimination[20]Mr Smith says that he was directly discriminated against because he is a man.[21]Direct discrimination is defined at s.13(1): “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”.[22]Section 23 provides that in making comparisons under section 13, there must be no material difference between the circumstances of the Claimant and the comparator. The comparator may be an actual person identified as being in the same circumstances as the Claimant, but not having his protected characteristic, or it may be a hypothetical comparator, constructed by the Tribunal for the purpose of the comparison exercise. The Claimant must show that he has been treated less favourably than that real comparator was treated or than the hypothetical comparator would have been treated.[23]The leading authority on when an act is because of a protected characteristic is Nagarajan v London Regional Transport [1999] IRLR 572. Was the reason the protected characteristic, or was it some other reason? One has to consider the mental processes of the alleged discriminator. Was there a subconscious motivation? Should one draw inferences that the alleged discriminator, whether he or she knew it or not, acted as he or she did, because of the protected characteristic? - (see paragraphs 13 and 17).[24]The protected characteristic does not have to be the only, nor even the main, reason for the treatment complained of, but it must be an effective cause. Lord Nicholls in Nagarajan referred to it being suffice if it was a, “significant influence”.[25]Detriment was defined in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285; the Tribunal has to find that by reason of the act or acts complained of, a reasonable worker would or might take the view that he or she had been disadvantaged in the circumstances in which he or she had thereafter to work. However, an unjustified sense of grievance does not amount to a detriment. Failure to Make Reasonable adjustments[26]Section 20 defines the duty to make reasonable adjustments, which comprises three possible requirements, the first of which might apply in this case set out at subsection (3) as follows:- “(3) The first requirement is a requirement, where a provision criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”[27]Section 21 provides that a failure to comply with such requirements is a failure to make a reasonable adjustment, which amounts to discrimination.[28]There are five steps to establishing a failure to make reasonable adjustments (as identified in the pre-Equality Act 2010 cases of Environment Agency v Rowan [2008] IRLR 20 and HM Prison Service v Johnson [2007] IRLR 951). The Tribunal must identify: 28.1. The relevant provision criterion or practice applied by or on behalf of the employer; 28.2. The identity of non-disabled comparators, (where appropriate); 28.3. The nature and extent of the substantial disadvantage suffered by the disabled employee; 28.4. The steps the employer is said to have failed to take, and 28.5. Whether it was reasonable to take that step.[29]The employer will only be liable if it knew or ought to have known that the Claimant was disabled and that he was likely to be affected in the manner alleged.[30]It is important for the claimant to identify the PCP relied upon and for the Tribunal to makes its decision on the PCP advanced by the Claimant, see Secretary of State for Justice v Prospere UKEAT/0412/14.[31]Claimants are not required to prove that they were disadvantaged, it is not a test of causation, it is a comparative exercise to test whether the PCP has the effect of disadvantaging the disabled Claimant more than trivially in comparison with others who are not disabled, see Sheikholeslami v University of Edinburgh 2018 IRLR 1090.[32]The duty is to make “reasonable” adjustments, to take such steps as it is reasonable for the employer to take to avoid the disadvantage. The test is objective. Our focus should be not on the process followed by the employer to reach its decision but on practical outcomes and whether there is an adjustment that should be considered reasonable. It is for the tribunal to determine, objectively, what is reasonable. It is not a matter of what the employer reasonably believed. Unusually, the tribunal may substitute its view for that of the employer and it is permissible for the tribunal to conclude that different adjustments would have been reasonable from those contended for by the Claimant: see Smith v Churchills Stairlifts Plc [2006] ICR 524 CA; Royal Bank of Scotland v Ashton [2011] ICR 632 EAT; Garrett v LIDL Ltd UKEAT 0541/08; Southampton City College v Randal IRLR 2006 18; Project Management Institute v Latiff [2007] IRLR 579.[33]The Equality and Human Rights Commission: Code of Practice on Employment (2011) at paragraph 6.28 sets out examples of matters we might take into account in evaluating whether proposed steps are reasonable as follows: 33.1. The effectiveness in preventing the substantial disadvantage; 33.2. Its practicability; 33.3. The financial and other costs and the extent of any disruptions that may be caused; 33.4. The employer’s financial or other resources; 33.5. The availability of financial or other assistance, (eg through Access to Work), and 33.6. The type and size of the employer.[34]In Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 Elias LJ said: “So far as efficacy is concerned, it may be that it is not clear whether the step proposal will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.”[35]The resources, financial and otherwise, available to the employer are relevant as is its size. For example redeployment is more likely to be reasonable for a large employer.[36]The effect of an adjustment on others is relevant. But one should not forget that employers are under a statutory obligation to take positive action.[37]In the context of reasonable adjustments and knowledge, the Code at 6.19 reads: For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. Burden of Proof[38]Section 136 deals with the burden of proof: “(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.[39]It is therefore for the Claimant to prove facts from which the tribunal could properly conclude, absent explanation from the Respondent, that there had been discrimination. If he does so, the burden of proof shifts to the Respondent to prove to the tribunal that in fact, there was no discrimination. The reason for this is that the evidence about the reason for prohibited conduct is generally, in the hands of the employer. See Lord Legett in Efobi v Royal Mail Group Limited [2021] IRLR 811.[40]The appeal courts’ guidance under the previous discrimination legislation continues to be applicable in the context of the wording as to the burden of proof that appears in the Equality Act 2010. That guidance was provided in Igen Limited v Wong and others [2005[ IRLR 258, which sets out a series of steps we have carefully observed in the consideration of this case.[41]This does not mean that we should only consider the Claimant’s evidence at the first stage; a tribunal should consider all the evidence at the first stage in order to make findings of primary fact and assess whether there is a prima facie case. There is a difference between factual evidence and explanation, (which is considered at the second stage). See Madarassy v Nomura International plc [2007] IRLR 246 CA.[42]Rentokil Initial UK Limited v Miller [2024] EAT 37 at paragraph 43 assists with the burden of proof in reasonable adjustment cases. Section 136 requires that the Claimant prove that the PCP was applied, and that it placed them at a disadvantage. They should also put forward and identify some potentially or apparently reasonable adjustment. If they do that, the burden of proof then shifts to the Respondent to show that it would not have been reasonable to expect them to have made the adjustment. Time[43]Section 123 of the Equality Act requires that any complaint of discrimination within the Act must be brought within three months of the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable. It reads:(1) [Subject to [[section] 140B],] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.(2) …(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[44]On the question of whether it is just and equitable to extend time, in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 the Court of Appeal clarified that there was no requirement to apply any check list under the wide discretion afforded tribunals by s123(1). The only requirement is not to leave a significant factor out of account, (paragraph 18). Further, there is no requirement that the tribunal must be satisfied that there was a good reason for any delay; the absence of a reason or the nature of the reason are factors to take into account, (paragraph 25).[45]The discretion is a broad one, meaning that all relevant factors should be considered, including in particular the length and any reason for, the delay, see Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23.[46]In the case of Robertson v Bexley Community Services [2003] IRLR 434 the Court of Appeal stated that time limits are exercised strictly in employment law and there is no presumption, when exercising discretion on the just and equitable question, that time should be extended. Nevertheless, this is a matter which is in the Tribunal’s discretion.[47]That has to be tempered with the comments of the Court of Appeal in Chief Constable of Lincolnshire v Caston [2010] IRLR 327 where it was observed that although Lord Justice Auld in Robertson had noted that time limits are to be enforced strictly, his judgment had also emphasised the wide discretion afforded to Employment Tribunals. Lord Justice Sedley noted that in certain fields such as the lodging of notices of appeal in the EAT, policy has led to a consistently sparing use of the power to extend time limits. However, this has not happened and ought not to happen in relation to the discretion to extend time in which to bring Tribunal proceedings which had remained a question of fact and judgment for the individual tribunals.[48]More recently in Jones v Secretary of State for Health and Social Care 2024 EWCA Civil 1568 the Court of Appeal suggested that there was much to be said for focussing less on Bexley and more on some of the other Court of Appeal authorities, such as those summarised by Leggatt LJ in Morgan.[49]The onus is on the Claimant to persuade the tribunal that there is some good reason why it would be just and equitable to extend time, see Wells Cathedral School Ltd v Souter UKEAT/2020/00801.[50]In Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] ICR 283 EAT the claim was issued 17 days late. The tribunal rejected the Claimant’s explanation that he had not wanted to bring his discrimination claim during his employment for fear of recrimination. It found that as he had consulted solicitors shortly after his dismissal, he had opportunity to be informed about time limits and that he had failed to show that it was just and equitable to extend time. HHJ Peter Clark allowed the appeal, holding that the just and equitable test involved a wide discretion and a multi-factorial approach. In this case, after rejecting the claimant’s explanation, the tribunal should have gone on to consider the potential merits of the case and the balance of prejudice.[51]Where there is no explanation for the delay, the test must still be applied and it is not a foregone conclusion that it would not be just and equitable to extend time, see Concentrix CVT Intelligent Contract Ltdv Obi [2022]EAT 229 and Owen v Network Rail Infrastructure Ltd [2023] EAT 106 .[52]If the claim is strong but there is no explanation for the delay, the lack of reason is not determinative and one should still do the balancing exercise, see Szmidt v AC Produce UKEAT/0291/14.[53]An ongoing disciplinary or grievance process may mean that it is just and equitable to extend time, but not necessarily. For example if the claimant had the benefit of advice and knew of the time limit, see for example Robinson v Post Office [2000] IRLR 804.[54]In the case of Hendricks v Metropolitan Police Commissioners [2003] IRLR 96 the Court of Appeal, on the question of what amounted to a continuing act, cautioned Tribunals against looking too literally for a policy, rule, practice, scheme or regime, but rather to look for incidents which are linked to each other and which are evidence of a “continuing discriminatory state of affairs”. As Mummery LJ put it at paragraph 52 of that Judgment: “The question is whether that is an act extending over a period as distinct from a succession of unconnected or isolated or specific acts, for which time would begin to run from the date when each specific act was committed”.[55]In Barclays Bank Plc v Kapur [1991] ICR 208 the House of Lords held that there was a distinction to be made between a continuing act and the consequences of a continuing act. If there is a discriminatory regime, rule, practice or principle in operation, then such extends over a period. If there is no such regime, rule, practice or principle, an act that affects an employee is not treated as continuing even thought that act has ramifications which extend over a period. Constructive Dismissal[56]The right not to be unfairly dismissed is provided for at section 94 of the Employment Rights Act 1996, (ERA).[57]Section 95 defines the circumstances in which a person is dismissed as including where: “(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”[58]That is what we call constructive dismissal. The seminal explanation of when those circumstances arise was given by Lord Denning in Western Excavating(ECC) Ltd v Sharpe 1978 ICR 221: “ If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employers conduct. He is constructively dismissed.”[59]The Tribunals function in looking for a breach of contract is to look at the employer’s conduct as a whole and determine whether it is such that the employee cannot be expected to put up with it, (see Browne – Wilkinson J in Woods v W M Car Services (Peterborough) ltd [1981] IRLR 347)[60]A fundamental breach of any contractual term might give rise to a claim of constructive dismissal, but a contractual term frequently relied upon in cases such as this, is that which is usually described as the implied term of mutual trust and confidence.[61]The leading authority on this implied term is the House of Lords decision in Mahmud & Malik v BCCI [1997] IRLR 462 where Lord Steyn adopted the definition which originated in Woods v W M Car Services (Peterborough) Ltd namely, that an employer shall not, without reasonable or proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee.[62]The test is objective, from Lord Steyn in the same case: “The motives of the employer cannot be determinative or even relevant…..If conduct objectively considered is likely to destroy or seriously damage the relationship between employer and employee, a breach of the implied obligation may arise.”[63]Individual actions taken by an employer which do not in themselves constitute fundamental breaches of any contractual term may have the cumulative effect of undermining trust & confidence, thereby entitling the employee to resign and claim Constructive Dismissal. That is usually referred to as, “the last straw”, (Lewis v Motorworld Garages Ltd [1985] IRLR 465).[64]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA 978 the Court of Appeal, (Underhill LJ and Singh LJ) reviewed the law on the doctrine of the last straw and formulated the following approach in such cases In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above.)(5) Did the employee resign in response (or partly in response) to that breach?[65]The last straw itself need not be unreasonable or blameworthy conduct, all it must do is contribute, however slightly, to the breach of the implied term of mutual trust and confidence, see London Borough of Waltham Forrest v Omilaju [2005] IRLR 35. However, an entirely innocuous act cannot be a final straw, even if the employee genuinely but mistakenly interprets the act as hurtful and destructive of mutual trust and confidence.
Findings of Fact
[66]The Respondent is a large NHS Trust employing approximately 11,000 people, operating Addenbrooke’s and Rosie Hospitals in Cambridge.[67]Looking at relevant policies to begin with, the Physical Intervention Techniques Policy appears at page 236 of the Bundle, which gives at paragraph 3.1 a definition for Restrictive Interventions, “Deliberate acts on the part of other persons that restrict an individual’s movement, liberty and / or freedom to act independently in order to take immediate control of a dangerous situation where there is a real possibility of harm to the person or others if no action is undertaken; and end or reduce significantly the danger to the person or others; and contain or limit the person’s freedom for no longer than is necessary.”[68]Physical Intervention is defined at paragraph 3.2, “Physical Intervention is used to cover the use of direct or indirect force through bodily, physical or mechanical means to limit another person’s movement.”[69]At page 237 paragraph 4, “The use of PI must only be undertaken by staff who have been specifically trained to the Trust approved standards for the use of PI.”[70]At Section 5 of the Policy on page 237, “PI is only to be undertaken primarily by the security and portering management teams. Nursing and care team members may use restrictive practices in line with the Trust’s restrictive physical intervention (RPI) policy.”[71]The Restrictive Intervention Policy is at page 128. The key messages of this, are said to be that Restrictive Intervention should only be considered as a last resort when other types of intervention have failed and that the least restraining intervention should be used for the shortest period of time with regular reassessment and recorded evidence. The purpose of the policy is said to include to ensure that staff have appropriate training.[72]At page 130 paragraph 4, Restrictive Intervention is defined in the acute clinical setting as justified when it is necessary to prevent harm to a person who lacks capacity to make an informed decision relating to personal safety or the safety of others and its level is commensurate with the probability and potential severity of harm. A little later it is said to include, “Physical restraint which refers to direct physical contact between one person and another, or to physical contact mediated by an instrument or device. This may involve holding a person down or blocking their movements to stop them from leaving.”[73]In relation to Healthcare Assistants, (page 133) the policy states at 8.2.4 that Healthcare Assistants should be aware of the rationale for using RI, perform tasks within the scope of their job description and as directed by the nurse in charge and participate in one to one specialling as directed by the nurse in charge.[74]At 8.3 in relation to security staff, the policy says that security staff should only be involved as a last resort when the patient is displaying highly aggressive or violent behaviour which cannot otherwise be managed by the ward staff. Security staff may then be required to use Physical Intervention techniques to resolve an emergency situation.[75]The Respondent has a Violent and Aggressive Management Policy which starts at page 176, we begin at page 183. Here it says that the security team is responsible for providing first level response to incidents of violence and aggression, including Physical Intervention to prevent or stop physical assaults.[76]At page 185, managers are to provide initial support after a violent or aggressive incident. At paragraph 6.11 it says that all staff are responsible for avoiding violent and abusive or potentially violent and abusive situations, should not jeopardise their personal safety and should report all incidents of violence and aggression.[77]At 7.2 on page 186, the policy says that in emergency situations staff must call security and security should respond immediately. The extension number to call is given. It reiterates at paragraph 7.3 that the security team is trained to provide Physical Intervention in situations of violence and aggression.[78]At page 188, there is a reference to Special Observations known as Specialling, of which we will hear much in this decision. Paragraph 7.6 of the Policy provides, “Patients who may require long term observation due to their aggressive nature should be specialled by suitably trained members of the ward nursing team. See the Trust’s special observation (specialling) policy and procedure. It is not the function of the PI Team to provide this service, although in exceptional circumstances additional support to the Nursing Team may be provided after an assessment of the risk is completed.”[79]At page 194, in relation to violence and aggression training, the policy states that all staff should undertake training on conflict management awareness.[80]On specialling, there is a policy at page 111 of the bundle. The key messages in the policy are said to be that it applies to adults and children who are at risk and who are deemed to need enhanced supervision. It should be considered only when there is a real possibility of harm to the patient and all patients being specialled must have an assessment using a tool called the Specialling Scoring Tool (or SST).[81]At page 112, paragraph 3.2 of the policy, it explains that specialling is “… the observation of a patient at frequent intervals, or commonly on a constant one to one basis such that the patient remains within arm’s length of a member of the healthcare team.[82]The sort of behaviours that require specialling include mental health conditions such as dementia, alcohol and substance misuse or withdrawal, mental state changes as a result of head injuries and acute confusion due to delirium.[83]The responsibilities of Healthcare Assistants is set out at page 113, paragraph 5.3, to include: escalation to the nurse in charge if there are any changes in the patient’s behaviour; to complete incident forms; to be aware of and maintain their own personal safety; and to work as directed by the nurse in charge.[84]At page 116, Section 7 of the policy refers to identifying who should carry the specialling out. This is to be delegated by the nurse in charge. It says that no one is to special for more than two hours consecutively, unless there is a specialist requirement which should be agreed beforehand; it states the requirement to change specials every two hours should be constantly assessed; the nurse in charge decides who to delegate to based on an assessment of the staff members skills and experience; Healthcare Assistants can be allocated only when they have undertaken the clinical support staff induction programme CCIP and completed the specialling competency pack.[85]An example of an SST is at page 124, where we see a table of scores to be allocated. For example in relation to psychological factors, cognitive impairment and distressed behaviour. Depending on the degree of such factors in each case, a score of 0, 1, 2 or 3 is to be allocated to the patient under each heading: a score of 3 for Psychological Factors if the patient has attempted to harm others; for Cognitive Impairment a score of 3 if the patient is unable to rationalise leading to aggression; for Distressed Behaviour a score of 3 if there had been episodes of physical aggression or agitation in the previous 24 hours, or if there has been threats to themselves or to others.[86]Thus it is then, in summary, based on these policies and the evidence that we have heard, we find that specialling entails enhanced personal supervision of a patient where it is felt that there is a possibility of the patient doing harm to themselves or others. Healthcare Assistants are allocated specialling by the nurse in charge after completing an SST. Sometimes Healthcare Assistants might divide up the specialling duty amongst themselves. They should ordinarily observe the patient for no more than two hours before being relieved.[87]Mr Smith’s case is that the Respondent treated him less favourably by allocating him specialling duties for patients that were aggressive or violent, because he is a man.[88]There are different degrees to the nature of specialling required. For example, “red” is where the staff member should be within arm’s length of the patient at all times, such as where the patient has had a tracheotomy and one may need to move quickly to prevent the patient trying to remove it. “Amber”, which we understand is the most common, is where the patient needs an eye kept on them, for example a patient with dementia who would be likely to be unstable on their feet if they were to try and get out of bed, so that such a patient should be kept within sight at all times.[89]Stepping in physically to prevent a patient removing a cannula or tracheotomy, or getting out of bed, after attempting non-intervention techniques such as verbal persuasion and distraction, is Restrictive Intervention. Healthcare Assistants are expected to do this. If the patient becomes violent or aggressive, or if the Healthcare Assistant feels unsafe, they should step away and call security. They should not attempt Physical Intervention. It is of course natural human nature, as Miss Hames said at paragraph 3.8 of her statement, that these lines become blurred in practice. In the moment, it is understandable that in caring for a patient, a Healthcare Assistant might try to restrain the violent patient, but the respondent’s policy, training and expectation, is that they should not. They should step away and call security.[90]At times, a Healthcare Assistant may be moved from their shift ward to another ward, to make up the numbers needed to assist with specialling within the two hour time constraints.[91]Mr Smith was at the relevant time a disabled person, the respondent accepts, by reason of PTSD, depression, low mood, panic attacks and self-harming behaviour. Diagnosis of PTSD was by Mr Smith’s GP on 26 June 2020, (page 866).[92]Mr Smith’s employment as a Healthcare Support Worker (HCSW), otherwise referred to as a Healthcare Assistant, commenced on 14 May 2018. He had previous experience working in hospitals since 2013. He was to work a 37.5 hour week. He also did Bank work. For his contractual work, he was assigned to Ward L4, an Orthopaedic Ward which was managed by Miss Hames. Mr Smith had an excellent working relationship with Miss Hames throughout. To accommodate his childcare needs, he was allocated night shifts and Sunday day shifts only. His job description is in the Bundle at page 410. We note that at point 8, it includes the requirement to undertake special observations of vulnerable patients as directed.[93]In terms of training, Mr Smith’s training record is at page 905. This shows that he undertook Local Induction on 4 June 2018 and Corporate Induction on 14 May 2018. He completed training in Conflict Resolution, Safeguarding Adults and the previously referred to Clinical Support Staff Induction Programme, which he did over the course of eight days, completed it on 25 May 2018. He also completed training for a Care Certificate, that is dated 3 August 2018.[94]The course content of the Clinical Support Staff Induction Programme is illustrated by a 2023 example which is in the bundle at page 1287. It is unfortunate that is a 2023 version, not that of 2018 representing the training that Mr Smith would have undergone, but we accept things will not have changed significantly. We can see the training included the best part of a morning on Enhanced Observations and Care of Distressed Patients, training on Clinical Observations on two days, Moving and Handling and Breakaway training also on two days.[95]Mr Smith also completed the Care Certificate theory modules on 3 August 2018 and in the course content there, we can see listed at page 1285, it included Understanding Your Role, Awareness of Mental Health, Dementia, Learning Disabilities and Specialling.[96]We note that Ms Oakley, who as we shall see later, investigated part of Mr Smith’s grievance, said that most staff could not remember their training on specialling. Voluntary refresher training was available, Mr Smith chose not to avail himself of that option.[97]The Conflict Resolution training is at page 1106. Mr Smith agrees that he had undergone that training. We note at page 1109 there is a slide with this training which talks about assessing a person’s mental health and mental state, whether they are holding a weapon and it talks about making sure it is easy to step back and get away if you need to. We mention that because during evidence, Mr Smith asked some of the respondent’s witnesses to look at page 1110, making reference to turning sideways in order to present a small target, suggesting that the respondent expected staff to remain when they are threatened with violence, but present a small target. That is not what it says.[98]Breakaway training is of course training on techniques to break away from a person who has hold of you while they are attacking you.[99]Now a chronological look at the events as they unfolded: 4 October 2018[100]Mr Smith was assaulted while working on Ward L4 Specialling. The Respondent has a form on which such incidents are recorded and reported called an Incident Form – Safety and Quality Support, referred to by the abbreviation QSIS. The QSIS report on this incident is at page 276. This particular one was completed by Mr Smith.[101]Mr Smith explained in the QSIS that the confused patient became agitated. He replaced a female HCA. The patient escalated to becoming violent, knocked over an observation trolley and struck Mr Smith across the face. He sustained a small cut on his cheekbone. 14 February 2019[102]The QSIS Report for this incident prepared by Mr Smith is at page 289. He explained that he was sitting with a confused patient who became agitated. He leaned across to replace the patient’s sheet and the patient hit him across the face, knocking off his glasses. He wrote that he stayed with the patient and within a few moments, he had fallen asleep, “no harm done!”. March or April 2019[103]Miss Hames referred Mr Smith to Occupational Health, because he reported feeling stressed.[104]A report from Occupational Health was produced dated 15 April 2019, (page 313). The Occupational Health Nurse reported that Mr Smith had said he had a diagnosis of anxiety and that he had previously suffered from depression. The nurse wrote that Mr Smith’s anxiety was exacerbated by his work. She recommended a Stress Risk Assessment and that Mr Smith be allowed to keep to his preferred schedule of working.[105]A risk assessment was completed by Mr Smith, (page 899). He did not suggest in particular what may be done. He described his manager as excellent. He complained that the handling of aggressive/violent patients was terrible. Miss Hames discussed the risk assessment with him and he said there was no particular support that he wanted, other than that flexible working should be in place. 27 July 2019[106]While Mr Smith was working on Ward J2 he was assaulted when a patient punched him and spat in his eye. The QSIS Report prepared by someone else is at page 315. It describes the patient becoming agitated whilst being specialled.[107]Mr Smith’s written account is at page 319, it is a narrative he wrote to Miss Hames on 29 July 2019. He said that he had taken it in turns to special a patient who had been aggressive and violent on the Wednesday and Thursday nights. He said that it had been insisted that the specialling should be done by male HCAs. He referred to the patient continually calling him the ‘c’ word, trying to pull out his NG and the cannula, which he was unable to prevent and so he called the nurse. Once the nurse had left, the patient started misbehaving again, he asked Mr Smith to move his pillow and as Mr Smith did so, the patient punched him and spat at him. He says he left the room and others intervened.[108]We note that there is now an 18 month gap between incidents of violence at the hands of patients, as relied on by Mr Smith in his List of Issues. 29 November 2019[109]Mr Smith had a panic attack and he was sent home. This was not connected to specialling. In his witness statement, he wrote of his fury at a patient in distress being ignored. Miss Hames referred him to Occupational Health, (page 342). She referred to Mr Smith as suffering severely from mental health issues and that he had recently had panic attacks and had to be sent home.[110]The subsequent Occupational Health Report dated 8 January 2020, (page 348) refers to periods of absence due to anxiety and also gastro intestinal issues. Reference is made to Mr Smith attending MIND for counselling.[111]The Occupational Health Doctor, Dr Halim, cautioned Mr Smith against working Bank shifts. He did not recommend restrictions or alterations to his duties.[112]Miss Hames discussed this report with Mr Smith. She encouraged him to reduce the number of Bank shifts that he worked, because she was concerned he would burn out. Mr Smith said he felt financial pressures to work Bank shifts. There was a suggestion of resilience training, which Mr Smith chose not to take up. 25 May 2020[113]Mr Smith went home with Covid like symptoms, (page 353). 26 May 2020[114]In the context of a lengthy, detailed email exchange with Miss Hames about Covid arrangements on the ward, Mr Smith requested a move to Ward N2, (page 350). He assured Miss Hames that this request was nothing whatsoever to do with her, or what he describes as the fantastic group of people that he had worked with for the previous two years. There had already been a discussion, it appears, about a possible transfer to Ward N2. Mr Smith was familiar with that ward and with the Senior Nurse there, Mrs Hardy, because he frequently worked on Ward N2 on his Bank shifts.[115]His reasons for wanting to move were expressed as being to do with staffing levels and pressures during shifts. There was no mention of Specialling, or violent patients. Ward N2 was for patients with infections. 31 May 2020[116]Mr Smith attempted to return to work after Covid. Miss Hames sent him home because he was not well and was anxious and angry, (page 357). 1 June 2020[117]Miss Hames emailed Mr Smith about his expressed wish to transfer, (page 380).[118]As it happens, Mr Smith was absent from work from 1 June to 4 September 2020 due to anxiety, stress and depression. 4 June 2020[119]In the meantime Miss Hames spoke to Mr Smith and she recorded what had been said in that conversation in an email that she sent to Mrs Arthur, (page 372).[120]Amongst other things, Mr Smith discussed with Miss Hames the reasons behind his mental state, which included his home life. He explained that his reason for wanting to transfer to Ward N2 was to go somewhere where people did not know him. Mrs Hardy says she had encouraged him to perhaps stay where he was, where he could be supported by people who did know and understand him.[121]Miss Hames referred Mr Smith to Occupational Health, the referral is at page 355. We note, (page 357) that she confirmed his expressed wish to stay on Ward L4. She referred to him being stressed and not coping mentally. She asked whether it was a good decision for Mr Smith to stay on Ward L4 where, as she put it, staff know him and can support him. 15 June 2020[122]Mrs Hardy contacted Miss Hames about the proposed transfer. Miss Hames explained in reply that it was not going ahead because there were concerns about Mr Smith’s wellbeing. Remember, Mrs Hardy would be familiar with Mr Smith because he had frequently worked on Ward N2 on Bank shifts. 18 June 2020[123]Mr Smith sent an email to Miss Hames, (page 381). He referred to what he called the endlessly disgraceful way that he had been treated, expressly excluding Miss Hames from that statement. He attached a lengthy document setting out what he was referring to. It is a long list of complaints, only one of which is about assault, all the others appear to be about the care that he received from the Respondent while he was ill, or Covid related incidents. It is a long list of things that were making him angry. 19 June 2020[124]Having seen the Occupational Health Report, Mr Smith sent an email to Miss Hames about distressing events he had experienced in his childhood, (page 389). There he makes a reference to being referred to a psychiatrist and to a deep history of depression.[125]The Occupational Health Report is dated 24 June 2020, (page 392).[126]Mr Smith’s absence is described as being both due to Covid type symptoms and stress, anxiety and depression. He is said to remain unfit to return to work. He is to be referred to the Occupational Health Psychiatrist for a further assessment. It said that he is likely to need restrictions in relation to his duties when he is fit to return and those changes are likely to be temporary in nature. The author of that report is Dr Halim. 26 June 2020[127]As we have noted, the GP records for Mr Smith show a diagnosis of PTSD on 26 June 2020, (page 866). 14 July 2020[128]Mr Smith wrote to Miss Hames to tell her about his diagnosis of PTSD, (page 548). 22 July 2020[129]Mr Smith saw Occupational Health again, the report is at page 402.[130]There was no mention in that report, in fact, of PTSD; Mr Smith says there should have been. It refers to low mood, low energy, describes him as unfit to work due to his symptoms and of their discussion about a return to work planned for the next appointment, which is on 19 August 2020. 19 August 2020[131]There was a Formal Sickness Absence Review Meeting on 19 August 2020. A letter summarising what was discussed is dated 25 August 2020, (page 407).[132]Mr Smith said that the trigger for his anxiety and depression were incidents where patients attacked him and that he felt there were no protocols in place for when patients attacked him.[133]PTSD was been discussed at this meeting, as confirmed in a subsequent letter of 7 October 2020, (page 419). 4 September 2020[134]In the meantime, Mr Smith began a phased return to work on 4 September 2020, with Miss Hames agreeing to avoid allocating him specialling duties if possible. He did not special for the next four weeks. This of course is in relation to Ward L4, which was all that Miss Hames controlled. 1 October 2020[135]There was a further Formal Sickness Absence Review Meeting on 1 October 2020, confirmed in a letter of 7 October 2020, (page 419).[136]We note the kind words expressed by Mr Smith towards Miss Hames, who he described as a beautiful person and who he says had overwhelmed him with the support that she had provided. 13 October 2020[137]Mr Smith wrote an email, (page 421) to Mrs Arthur about a Bank shift that he had worked the previous week. He had put himself down for a shift on a particular ward. That had been changed by the Bank shift manager. He called the office to say that because of his PTSD, he wanted to avoid the ward to which his shift had been changed. He says the manager refused. 16 October 2020[138]There was an email exchange between Miss Hames and the Deputy Operations Manager, a Ms Webster, (page 423). Ms Webster explained that she had a conversation with Mr Smith about that Bank shift. She explained she had suggested Mr Smith should liaise with Miss Hames and Human Resources about his needs during his phased return to work. She expressed concerns about Mr Smith undertaking Bank shifts at this time. 10 November 2020[139]There is a further email from Mr Smith to Miss Hames and Mrs Arthur, (pages 430 – 432). This refers to another incident in which he had been assaulted. This is not an incident that is relied on in the sex discrimination claim in accordance with the List of Issues. 30 November 2020[140]Miss Hames sent an email to Mr Smith to say that his transfer to Ward N2 could go ahead, (page 435). 7 December 2020[141]Mr Smith’s transfer to Ward N2 was approved, (page 452). 10 December 2020[142]In the meantime, there was a further Formal Sickness Absence Review Meeting on 10 December 2020. What was discussed is summarised in a letter of 15 December 2020, (page 457). This records Mr Smith as saying that his therapist signed him off, that he was happy with the move to N2 and he was told that upon his return to work, he would be removed from the Formal Sickness Absence Review process. 14 December 2020[143]Mr Smith wrote to the Speak Up Guardian of the Respondent, (page 465). It was a lengthy email complaining about many things that had happened to him which are not related to this case.[144]At item 3 of the email to the Speak Up Guardian, Mr Smith complained that he had been selected for specialling as, “the only man available”. At item 17, he speaks of trying to avoid specialling during his phased return to work and that nonetheless, whilst doing a Bank shift he was put on specialling and had been punched and hit with a walking stick whilst doing so. He also complained that he had told the manager of the Bank of his difficulty and she had refused to change the shift she had put him on.[145]The Speaking Up Guardian replied to suggest that Mr Smith raise a grievance. Mrs Aldred followed up, (page 469), attaching the Grievance Procedure. There is no issue in the List of Issues about this.[146]There were administrative holdups regarding the transfer of Mr Smith to N2, the details do not matter. 29 January 2021[147]There was an incident on Ward L4 when Mr Smith was assaulted by a patient whilst specialling. The QSIS report, (completed by a staff nurse) is at page 492. It explains that the patient had been trying to remove his PICC line, he had dementia, he was on a, “red special”, staff were trying to stop him removing his PICC line, he had become aggressive and had started punching and at least two Healthcare Assistants had been punched, one of whom had gone home. At page 494, we see that the report records that the patient previously had aggressive episodes. The ”lessons learned” section records that antipsychotics should have been administered sooner and that the registered nurse should have reviewed more regularly.[148]Mr Smith wrote to Mrs Aldred about this, (page 484). He explained that he had been punched, kicked and hit with a walking stick. He wrote that he had volunteered to stay with the patient after he had punched a female Healthcare Assistant and that he stayed with the patient for five hours until the patient fell asleep. 1 February 2021[149]Mr Smith had a meeting with Miss Hames and Miss Mills to discuss the way forward. They reached agreement that he was not going to work on Ward L4 anymore and he that he would temporarily move either to Ward N2 until this was finalised or to another Ward called L2. Mr Smith wrote, (at page 503) that they all agreed that was for the best.[150]Mr Smith was then off from work with work related stress and PTSD from 1 – 20 February 2021. 9 February 2021[151]While Mr Smith was absent he was transferred to Ward N2, this was formally approved, effective from 15 February 2021, (page 505). 21 February 2021[152]There was a Return to Work meeting with his new manager Mrs Hardy, (page 508 and page 510). Underlying health conditions were recorded as PTSD and Covid. The cause of absence is recorded as an aggressive patient. Mr Smith is recorded as saying he mentally felt great but physically stressed. He wanted a fresh start on N2. Mrs Hardy suggested referral back to OH but Mr Smith said he did not want that. The adjustment of not being required to special was not initially put in place because Mr Smith did not want it to be. 28 March 2021[153]There was a further incident, this time on Ward N2, in which Mr Smith was injured, (page 512). The patient record is referred to, (page 1,419) where we can see that at 12 o’clock the patient is recorded as displaying distressed behaviour, verbally aggressive and agitated. We can see that the entries are made by Staff Nurse Blessy.[154]We can see entries for 2 o’clock that day, (page 1,423) where there is an SST assessment scoring 13 and the record shows episodes of physical aggression and agitation in the last 24 hours.[155]In summary, Mr Smith was assaulted by the patient who kicked him, punched him and threw a plastic glass in his face. Another Healthcare Assistant took over from him and that person was also assaulted. 6 April 2021[156]Mr Smith wrote an email to Mrs Hardy, (page 514) the tone of which indicates that Mr Smith was very happy with his move to Ward N2, he speaks of how everybody had been charming, he had been made to feel comfortable and that it had been a pleasure to join, “this lovely team”. 30 April 2021[157]There was a Ward meeting. In this meeting Mrs Hardy went through the Incident Reports for the previous month. She did not mention the 28 March 2021 incident. Mr Smith became upset that she had not done so, complaining that only males were asked to special. Mrs Hardy explained that she had already addressed the incident itself with the Healthcare Assistant concerned, that is the other male who had been assaulted and who had gone home. She said that a male special HCA should only be specifically requested if it is thought that the patient would respond better to a male.[158]She summarised what she had said in this meeting in an email to the team, (pages 516 – 517). In that she said as follows, “We discussed violent and aggressive patients. I have shared that at no point should a staff member be put at risk and that if a patient is becoming aggressive then they will need to step back and security should be called. I have also shared that I hope all staff members to be trained for Breakaway Training. If we are requesting a male / female staff member to special, this should only be based on the patient, e.g. patient responds better to a male / female.”[159]Mr Smith’s response, (top of page 516) was to complain that no one really knows what they should or should not be doing in these difficult situations. He says there is a hospital policy, but that it is not followed and that the policy is often inappropriate. April 2021[160]Mr Smith says that a further incident occurred during April 2021 for which he cannot provide the exact date.[161]He says that he was sent from Ward N2 to another Ward, D5, to stop a detoxing alcoholic from absconding. He says it was, “male only”. He says he was shoved and sworn at for two hours, but there was no lasting injury.[162]We note that Ms Oakley, who subsequently investigated Mr Smith’s grievance wrote in her outcome, (page 815) that when interviewing witnesses on this point, “… they confirmed an SST assessment had been completed and determined that male members of staff were to be assigned to this patient.”[163]We note that the date of this incident appears to in the gift of the Respondent, but it has failed to provide the date, something that was particularly irksome to Mr Smith. 25 May 2021[164]Mr Smith was working a bank shift on N2. He was moved to work on another ward, MSEU, to special a patient who was in a rage because he had been moved to a Psychiatric Unit. Mr Smith says that he was pushed and verbally abused.[165]In an email to Mrs Hardy that day, (page 522) he makes no reference to this, but he does make reference to struggling and feeling overwhelmed and as if he is hanging on by his finger nails. He requests a referral to Occupational Health. 1 June 2021[166]Mrs Hardy replied, (page 525) to confirm she had completed a referral to Occupational Health. She attached a Stress Risk Assessment for him to complete and suggested they met to discuss.[167]The referral itself is at page 529. Mrs Hardy wrote that she had met with Mr Smith on 1 June 2021 on a night shift, that there were a lot of anger and emotional issues that had built up and that he was becoming frustrated at the slightest incident at work, with such things becoming a big thing for him. She explained that Mr Smith had gone home on sick leave and she had asked him to contact his GP. She said that he was struggling on his shifts, but she was unable to identify anything more that she could do on Ward N2 to help him. 30 June 2021[168]The Report dated 30 June 2021 is at page 539. The health issues noted included post Covid symptoms but also stress, anxiety, depression and PTSD. Mr Smith is reported as saying that following an assault by a patient that he was specialling, an aspect of his role that he was finding stressful, he became distressed. The OH Practitioner recommended a temporary adjustment of not having to special patients for the next four to six months.[169]Mr Smith was then absent from work due to mental health issues from 24 June to 24 July 2021. 20 July 2021[170]In the meantime, on 20 July 2021, there was Formal Absence Review Meeting.[171]What was discussed is confirmed in the letter of 22 July 2021, (page 560).[172]Mrs Hardy recorded a discussion about Mr Smith’s mental health, (page 562). She was noting the tone of his emails and cues from his behaviour, indicating that he was struggling. She said she would look at his rosta and plan his phased return to work and she said she would implement the recommendations from Occupational Health, including ensuring he did not undertake specialling patients on the ward on a temporary basis. She said she would reduce his moves to other wards. She would continue to support him taking split breaks and with one to one meetings.[173]Mrs Hardy referred Mr Smith to what the Respondent calls its ‘Purple Passport’ which she described as, “A tool designed to facilitate a conversation between an employee and their Line Manager if they experience a disability or health condition which impacted on them at work, in order to identify any appropriate adjustments the employee may benefit from at work.”[174]The purpose of the Purple Passport would have been that Mr Smith would be able to produce it to managers on other wards, specifically when he was doing Bank shifts, to make them aware of the need for adjustments and in particular, that he should not to be required to special patients. 25 July 2021[175]Mr Smith began his phased return to work on 25 July 2021. 6 September 2021[176]A further Sickness Review Meeting with Mrs Hardy was held, (page 576) and notes of what was discussed are summarised in a letter of 10 September 2021, (page 578).[177]Mr Smith’s return to work was said to have gone perfectly. He described everybody on the ward as supportive and helpful. It was confirmed that the recommendations of Occupational Health had been implemented. They discussed whether specialling might be re-introduced after the six month pause that had been recommended by Occupational Health and Mr Smith is recorded as having said that he wanted to get back to doing everything at work, but this was obviously something he would have to discuss with his therapist. It was confirmed the adjustments would remain in place and they would discuss again when the six months were up.[178]Mrs Hardy confirmed that she would make sure Mr Smith did not get moved to other wards during his shifts on N2. She recommended that he restrict his bank work to working on N2. She reminded him about the Purple Passport. He said that he did not feel that he would need it and that everything he needed had been implemented for him. 7 September 2021[179]A Staff Bank manager, Ms Farrer, spoke to Mr Smith, (page 713). The outcome was that it was agreed he would do Bank shifts on Ward N2 only. 4 October 2021[180]There was a further Absence Review Meeting and what was discussed is set out in the letter dated 7 October at page 590.[181]Mr Smith had experienced a difficult few weeks; sadly his mother had died during the intervening period. He had been discharged from Occupational Health after the consultation on 17 June 2021, but the Respondent continued to implement the OH recommendations, in particular, that he would not do specialling or be moved to other wards. It was noted that in his conversation with Ms Farrer, it was agreed that he would only do Bank shifts on Ward N2. The recommendations of Occupational Health would continue to be implemented until December 2021. 7 November 2021[182]Sadly Mr Smith took an overdose and a further period of absence from work began. 29 November 2021[183]There was an Absence Review Meeting with Mrs Hardy. A letter summarising what was discussed was dated 2 December 2021, (page 603). They discussed Mr Smith’s recent mental health issues and Mrs Hardy said she would make a further Occupational Health Referral for the future and that all Bank shifts would be cancelled.[184]Shortly after this, Mrs Hardy herself had a period of absence from work due to ill health. The planned Occupational Health Referral was therefore made by the Matron responsible for Ward N2, Miss Chapman, (page 612).[185]The content of the referral is the subject of Mr Smith’s constructive dismissal claim in the List of Issues at 2.2.3. Miss Chapman wrote as follows, “Stuart works mainly night shifts due to childcare commitments and we have continued to implement the existing OH recommendations in terms of not moving him to other wards, and excluding him from specialling patients on Ward N2. We had agreed with Stuart that he would not work bank shifts whilst we had restrictions in place unless he worked them on Ward N2 where we would ensure the restrictions could be implemented. Whilst we can continue to implement the restrictions on a temporary basis, we cannot implement these indefinitely, due to the nature of Stuart’s role.”[186]It is the last sentence that Mr Smith takes exception to. 20 December 2021[187]Mr Smith attempted to return to work but unfortunately had a panic attack and his absence resumed. 4 January 2022[188]Mrs Hardy returned to work. 6 January 2022[189]The Occupational Health Report was produced, (page 620). The author is a Senior Occupational Health Nurse Advisor. She anticipated that Mr Smith may be able to resume work in the week beginning 17 January 2022. She recommended a phased return to work, continuing the previous Occupational Health recommendation of exempting Mr Smith from moving to other wards and excluding him from specialling patients on Ward N2. She also said that Mr Smith was not to pick up any Bank shifts until after the spring of 2022 and even after that, he should take care not to pick up too many. 15 January 2022[190]Unfortunately, sadly, Mr Smith sustained a heart attack. His absence from work continued. 7 February 2022[191]There was another Sickness Absence Review Meeting between Mr Smith and Mrs Hardy. What was discussed was confirmed in a letter dated 14 February 2022, (page 647).[192]Mr Smith said that mentally he was fine, physically he was getting there. Mrs Hardy advised Mr Smith to keep Occupational Health up to date with his physical health as well as his mental health.[193]Mr Smith is recorded as having complained that Addenbrooke’s had no protocol for managing patients who were aggressive, such patients were not given sedation and that Healthcare Assistants were placed with patients to special with no training on how to restrain a patient.[194]Mrs Hardy reports in her letter advising Mr Smith that Trust protocol was that if a patient was being aggressive, one should call security or, medical staff, so that the patient could be sedated. She records as having explained to Mr Smith that he has a responsibility to follow process. She says he had failed to complete a report after he had been injured in the incident in March 2021, that he should have called the ‘bleep’ holder or called security. In terms of training, she made reference to the Care Certificate all Healthcare Assistants complete when they start. She wrote of working as a ward to build other strategies and additional training with security. She said she was not able to change what had happened in the past, but that his priority should be his own safety. She said that specialling was part of the HCA role and there was a higher risk on Ward N2 because of the side rooms that they use.[195]Mr Smith expressed his concerns that more often than not, it was male HCAs who were asked to special patients. Mrs Hardy records her response as: “I advised you that on each occasion when a patient required specialling, we had to clarify whether it was more appropriate that a male or a female member of staff was assigned to special that patient”[196]Mr Smith said that after discussion with his therapist, he felt that if he was mentally stable, he would be able to manage specialling situations.[197]Again, there is a passage in this letter which is explicitly referred to in the List of Issues, (2.2.4) and to which Mr Smith takes exception, it states, “We discussed submitting an additional form to Occupational Health to ask whether we should consider formal redeployment to a suitable alternative role, in order to prevent you from being in a situation which you felt had a detrimental impact on your mental health. I advised you that we would continue to implement the existing Occupational Health recommendations during your phased return to work, whilst you continue to access treatment in the form of talking therapy, but that I was not able to accommodate an HCA not specialling on a substantive basis.”[198]Mrs Hardy then goes on to talk about the practical implications of potentially transferring to another ward. 11 February 2022[199]There was a follow up Occupational Health Report dated 11 February 2022, (page 645). This reports Mr Smith feeling highly stressed in terms of his duties due to specialling and the requirement for frequent moves. It also makes reference to his psychological condition and the recent cardiac event. The Occupational Health Nurse said that she was going to make an onward referral to the Occupational Health Physician, Dr Halim, in light of the psychological issues and the recent cardiac event.[200]However, in the meantime, Mr Smith resigned and he did not attend the subsequent appointment. 2 March 2022[201]Mr Smith resigned. His resignation letter, (page 657) reads, “This decision is taken as the letter I received clearly states that no dispensation will be made for my mental health disability when I return to work and I find that to be discriminatory. In addition, as the majority of the violent incidents I have suffered have been as a result of a “male only” allocation, though male members of staff had no more training than female staff (neither in fact have any at all when physical intervention is required), I have also seen my mental health deteriorate due to sexual discrimination. My last attempt to return to work failed, as I could not get through the door. I have no desire to risk my health further by finding myself in an environment that might trigger a bad reaction. I have been advising many of my diagnosis of PTSD for well in excess of a year and requested concessions, but this has never happened. I no longer feel safe in this environment and I have no option left to me but to resign despite this placing me in a financially difficult situation.” 4 March 2022[202]In a letter dated 4 March 2022, Mrs Hardy sought to encourage Mr Smith to reflect, (page 659). Mr Smith declined to do so, (page 663). March to June 2022 – Grievance[203]On 9 March 2022, Mr Smith raised a grievance, (page 654) and provided further grievance information on 10 March 2022, (page 679).[204]Ms Oakley was appointed to investigate the grievance. She met with Mr Smith on 25 March 2022, (page 1,029). Mr Smith followed that up with an email on 25 March 2022, (page 731).[205]Ms Oakley’s Report dated 1 June 2022 is at page 809.[206]Ms Mowlem was appointed to investigate specialling and Mr Cleave reported on the outcome of that investigation to Mr Smith on 1 June 2022, (page 790). Conclusions Sex Discrimination
Conclusions
[207]Fundamentally, we found Mr Smith an honest witness. He may misremember on occasions and his perception is not always rational, as a consequence of his mental illness, which means that his evidence was not always reliable.[208]The claim of sex discrimination is unquestionably out of time. The question then is for us to determine whether it is just and equitable to extend time.[209]We have a broad discretion, provided that we take everything relevant into account. The onus is on Mr Smith to show that it is just and equitable to extend time.[210]Fear of recrimination is a factor to consider on this question; Rathakrishnan v Pizza Express(Restaurants) Ltd [2016] ICR 283 EAT.[211]The absence of explanation from the Claimant is a factor, although not conclusive.[212]The promptness of action by a Claimant once he knows pertinent facts is relevant.[213]The steps taken or not taken by a Claimant to obtain advice to find out about their rights is relevant.[214]The length of the delay and the reason for the delay is relevant.[215]The effect of the delay on cogency of evidence is important.[216]We must balance the prejudice to each party if were to find or not find, that it is just and equitable to extend time. In that element of balancing prejudice, the question of the merits of the claim itself arise: 216.1. In relation Incident 1 on 4 October 2018, we have seen evidence and Ms Oakley told us, (page 810) that a Risk Assessment indicated that it was more appropriate for a male to special this particular patient in the context of the patient being agitated. 216.2. In relation to Incident 2 on 14 February 2019, there is no evidence that it was known in advance that the patient might be a problem, nor that the decision had been made to allocate men only. 216.3. Incident 3 was on 26 July 2019. In Mr Smith’s email of 29 July 2019 page 319 there is corroboration as a contemporaneous note by Mr Smith, that there was an insistence that males be allocated to special a particular patient who had already been violent. We also note that on that occasion, there were seven Healthcare Assistants on the Bank, Mr Smith was the only male and he was the one allocated, (page 519). 216.4. Incident 4 was on 29 January 2021. There is no evidence that it was known in advance that there was a problem with this patient and it seems Mr Smith put himself forward, he volunteered, to replace the female Healthcare Assistant who had been assaulted. 216.5. Incident 5 was on 28 March 2021. We can see that the patient was known to be aggressive towards staff, (page 147). Mr Smith quotes Staff Nurses referred to as ‘Blessy’ and ‘Nancy’ saying, “The man in bed six is punching. It’s boys only for Specialling. Stu you are first”. Now those words have a ring of truth about them, a ring of credibility. We do not think Mr Smith made that up and we find that those words were used. We can see from page 1433 that the nurse known as Blessy was working on that day. Mr Smith complained about it at the time, (page 517) which is contemporary corroboration of what he says. Ms Oakley asked Blessy and Nancy about that, (page 1266 and 1268). We note the question was asked in very general non-specific terms and we note Ms Oakley got the date (the month) of the incident wrong. It is therefore perhaps not surprising that their response was that they did not recall. 216.6. Incident 6 was in April 2021, when Mr Smith was sent to special a detoxing alcoholic. Ms Oakley made a finding about this, (page 815) that male members of staff were to be assigned in accordance with the Risk Assessment. 216.7. Incident 7 on 25 May 2021: there is no evidence that this was specialling designated for males only, save only that Mr Smith and his colleague who were designated were in fact males. 216.8. In respect of four of the seven incidents relied upon, there is evidence that there was a policy adopted to appoint males to special known potentially aggressive patients. 216.9. There is other evidence too of there being a culture of appointing men to special patients who are thought might be aggressive. Miss Hames’ witness statement at paragraph 3.5, the last sentence reads, “I accept that if the patient is large or tall I can understand why the nurse in charge may choose to allocate a male RN or HCSW to special the patient.” One wonders, why is that? There seems to be a stereotypical assumption about men being larger and stronger than women. When cross examined on this, Miss Hames acknowledged that men might be better because of the physical element of the specialling is a factor, although not the sole element. 216.10. Mrs Hardy wrote in identical terms at the end of her paragraph 2.5. 216.11. Miss Hames also said in evidence, answering a question from Ms Davies, that if she said she had never selected a male HCA to special because of the physicality of the patient, that would not be true and that it definitely would have crossed her mind. 216.12. That Mrs Hardy felt the need to remind her staff on 30 April 2021, in the letter at page 517, that if requesting a male this should be based on the patient, is suggestive that as we know Mr Smith had raised this as a concern at the time, she recognised it was something that might be happening and that those doing the allocating of specialling needed to be reminded not to do so just on the basis of a person’s sex.[217]In our judgement, there is enough primary evidence here for us to conclude, absent explanation, that there was a culture, (not an official policy) of selecting males to special patients who it was thought might become aggressive and violent. There is enough evidence that the Tribunal could conclude, absent explanation, that allocations in respect of Incidents 1, 3, 5 and 6 were on the grounds of sex in those circumstances. Such would amount to a detriment in placing a male Healthcare Assistant at greater risk of being assaulted. Female Healthcare Assistants would not be so selected. The reason for the difference of treatment would be sex.[218]If there is such a culture, that suggests that each of the incidents complained of and upheld are a continuing act bound together by the prevailing culture amongst those allocating who is to special.[219]The claim is out of time, so we come back to the question, is it just and equitable to extend time bearing in mind its merits?[220]Mr Smith does not give an explanation for the delay in his witness statement. He acknowledged that he knew that the purpose of the List of Issues was to identify what the Tribunal must consider, he knew that time was an issue and that in his witness statement he needed to have regard to the List of Issues. Mr Smith had been aware of the facts that give rise to the possibility that he had been discriminated against, probably from the start but certainly from 29 July 2019, (page 319) where he wrote of the insistence on male HCAs.[221]Mr Smith said he did not issue a claim sooner because he did not want to lose his job.[222]Mr Smith said that he did not take advice or conduct his own research; could he have done so? He was ill, he was mentally unwell. In April 2019 he was referred to Occupational Health because of stress. In November 2019 he was suffering panic attacks. He was absent with anxiety, stress and depression from June to September 2020. He was absent from 1 to 20 February 2021 with symptoms now diagnosed as PTSD. He was absent again with mental health problems from 24 June to 24 July 2021. He was absent from 7 November 2021 when he had taken an overdose, which was followed by a heart attack, until he resigned on 2 March 2022.[223]Although it is right to say Mr Smith had engaged in some correspondence with the Respondents from time to time raising his complaints, for example as the Respondent says, via the Speaking Up Guardian, (page 475) what he writes was not always coherent or rational.[224]We find that it would be unreasonable to have expected Mr Smith to have thought to research and / or take advice on the issue of sex discrimination proceedings sooner than he did.[225]The effect of the passage of time on the cogency of evidence and the availability of witnesses is an issue and represents genuine prejudice to the Respondent.[226]There is a continuing act to April 2021. The delay to issue is about a year, to 14 April 2022. The delay to the commencement of Early Conciliation is to 3 March 2022. That is eleven months. Resignation and the raising of a grievance was in March 2022 and so also, a delay of eleven months.[227]Ms Oakley and Ms Mowlem were able to investigate Mr Smith’s complaints at that time. Although reference is made in submissions to difficulties in tracing witnesses, we did not have details. Ms Oakley was able to speak to Nurses Nancy and Blessy and there has been no suggestion they could not have been called to give evidence. Miss Hames’ and Mrs Hardy’s evidence appeared to be clear and unaffected by lack of recall.[228]On balance, having regard to the foregoing, we find that it is just and equitable to extend time.[229]We adopt our earlier reasons set out above and we find that the burden of proof has shifted to the Respondent to satisfy us that sex played no part in the selection for specialling in respect of the incidents that we have upheld. The Respondents have not discharged that burden of proof. Repeated recital of their policy is not enough. There is clear evidence, even from Miss Hames and Mrs Hardy, that sex was a factor. A Healthcare Support Worker who was a woman but in the same circumstances as Mr Smith, on the same shift, in the same ward with the same experience, would not have been asked to special.[230]It is for this reason that the complaint of sex discrimination succeeds.[231]There are two points worthy of note that we would like to make. There is nothing wrong with selecting a man or a woman to special because for some particular reason the patient is likely to respond better to one or the other. That is not less favourable treatment. Sometimes the patient’s needs will favour a man and sometimes they will favour a woman, being assigned to special. Similarly, some men may be slight and not physically robust. Some women may be well built and physically robust. Selection on the grounds of physical robustness would have been fine, but that was not the Respondent’s explanation. The Failure to Make Reasonable Adjustments[232]The wording of the PCP is very specific. The requirement to special aggressive and / or violent patients. The question for the Tribunal is, was there such a PCP? If there was, did it place Mr Smith at a disadvantage and if it did, was there a reasonable adjustment that could have been made to ameliorate that disadvantage?[233]The PCP relied on is not the requirement to special patients. It is not expressed to be the requirement to special patients who have a history of being aggressive or violent and for whom there was therefore a greater risk that they might become aggressive.[234]Although there is no requirement to special a patient who is at the time the HCA commences specialling, violent or aggressive, in situations where the patient becomes violent and / or aggressive there will be a period of time when the Healthcare Assistant is specialling. That might be for a few moments whilst they seek to step away and call security as they should, or it might be for a period of time as the situation gradually develops and the Healthcare Assistant tries to distract the patient, as they are required to do. For those moments they are required to special the aggressive and / or violent patient.[235]For the avoidance of doubt, this does not cover the human nature scenario where the patient is being violent and aggressive and harming themself and the Healthcare Assistant is waiting for help from security to arrive. The Healthcare Assistant might step in then as a caring and concerned person, but they are not required to by the Respondent.[236]Does the PCP put people who have Mr Smith’s mental health issues and Mr Smith himself, at a substantial disadvantage in comparison with someone who does not have his disability? The answer is yes, because PTSD is likely to be triggered by aggressive or violent behaviour.[237]The Respondent knew Mr Smith would be at such a disadvantage. It is implicit in the advice of Occupational Health to Mrs Hardy on 30 June 2021, (page 539) and explicit in the Report of 6 January 2022, (page 621).[238]Did the Respondent then take such steps as were reasonable to avoid the disadvantage?[239]The reasonable adjustment contended for in the List of Issues, (by which we are not bound as we can consider whatever adjustments we consider to be reasonable) is permanent exemption from specialling known aggressive patients. The Respondent did put temporary adjustments in place between September 2020 and Mr Smith’s move to Ward N2. Mr Smith was not required to special at all whilst working on Ward L4. There were concerns raised by the Respondent notwithstanding the arrangements put in place under his contract of employment on Ward L4, that he continued to put himself at risk by putting himself forward for Bank shifts in addition to his contractual hours, where he exposed himself to the likelihood of being asked to special. They encouraged him to avoid doing so, (page 419).[240]He was then absent from work between 1 – 20 February 2021. On his move to Ward N2 on his return to work in February 2021, the adjustment was not initially put in place because Mr Smith did not want it to be. He wanted to work as normal on his new Ward.[241]Occupational Health advised exemption from specialling on 30 June 2021. He was absent from work until 24 July 2021, but at a Review Meeting on 20 July 2021, Mrs Hardy confirmed she would implement Occupational Health recommendations, which included no specialling. That was reiterated in the 6 September 2021 review, (page 578). There was to be no specialling until the end of the year and the situation would be reviewed then.[242]Arrangements were put in place so that Mr Smith’s only Bank shifts would be on Ward N2, where there would be no specialling.[243]In July 2021, Mr Smith was offered the Purple Passport. He would have been able to show this to the manager of other wards when he was doing Bank shifts or being transferred and he would then be exempt from specialling. Surprisingly, he chose not to take up this offer.[244]In November 2021, a further referral was made to Occupational Health whose advice was that the exemption for specialling should continue and he should not pick up any Bank shifts until after the Spring.[245]The 11 Feb 2022 OH report described Mr Smith’s concerns about specialling as reasonable. They referred him to an OH Physician for further advice. He resigned before that advice could be obtained. Mr Smith would have no reason to think that the Respondent would do anything other than follow whatever that advice might have been, (Mr Smith chose not to go and see the OH Physician).[246]Thus far the arrangements in place are in our judgment, reasonable adjustments.[247]Mr Smith is much vexed by what happened in the last few months before his resignation. He take exception to Miss Chapman suggesting that a blanket exemption from specialling on Ward N2 could not be a permanent arrangement. In our judgment, this was not an unreasonable position for the Respondent to have taken. We accept that there were staffing/logistical problems with having an HCSW assigned to Ward N2 that could not special, because of the demand for specialling and the need to rotate every 2 hours. The position taken was tempered by the fact that this was subject to OH advice; they were looking for what arrangements could be made, they had in mind a potential transfer to another ward. There were other wards to which Mr Smith could have been transferred that would not have entailed specialling patients with a risk of violence or aggression.[248]Mr Smith did not cooperate with OH and did not await the outcome of the advice sought before resigning.[249]It seemed to us that Mr Smith had his mind set on working in N2 but without specialling at all, because that was work that would have been amendable to him. He did not like the idea to going to another area of the hospital where the work of an HCSW might have been different to what he was used to.[250]Mr Smith says that nowhere else in the hospital would have accommodated his particular hours requirements. He does not know that, he did not give the Respondent a chance to find out.[251]Although it was not what he was asking for at the time, Occupational Health might have advised that if a patient’s records showed that they had in the past or were displaying behaviours that suggested there was a risk they might become violent or aggressive, Mr Smith should not be allocated specialling that particular patient. There is no reason to believe that they would not have implemented such a recommendation. Mr Cleave confirmed it would have been possible.[252]We agree with the Respondent’s submissions that in any event, such an adjustment would probably not have entirely ameliorated Mr Smith’s disadvantage, in that most assaults by patients are without forewarning. The adjustment that would be reasonable to ameliorate the disadvantage, is an exemption from specialling altogether, which would have entailed a transfer from N2.[253]The Respondent did put reasonable adjustments in place and did not fail to make reasonable adjustments. Constructive Dismissal[254]We consider in turn each of the four allegations relied on as amounting to a breach of the implied term requiring the employer to maintain mutual trust and confidence. 2.2.1 “Requiring the Claimant to perform duties for which he had not received training. Specifically, the Respondent assigning the Claimant ‘special patients’ without providing him with control and restraining training”[255]Mr Smith’s argument that the mere laying of a hand on a patient amounts to “force” and therefore comes within the scope of the PI policy is not to attribute to that word and the words of the policy, their ordinary and natural meaning.[256]Healthcare Assistants are not required to conduct control and restraint, which is otherwise known as Physical Intervention. That is the role of security at Addenbrookes. There was no requirement for Mr Smith to have such training and the lack of it does not amount to a breach of the implied term of mutual trust and confidence.[257]What about training generally in the role of an Healthcare Assistant?[258]We accept that Mr Smith had the training with the course titles the Respondent says: the Clinical Support Staff Induction Programme over 8 days with modules on enhanced observation and care for the distressed patient, clinical observations, dementia awareness and breakaway training. (page 1287) There was training on specialling that had to be completed within 12 weeks of starting, (page 1285) and conflict resolution training, (page 1106). They all sound good, but we cannot comment on the course content.[259]On the face of it, Mr Smith received training for his role.[260]Ms Mowlam investigated his complaints about lack of training. We note from her report: 260.1. At page 796 top bullet point, she said that the majority of staff could not remember if they had specific training on specialling, some recalled that they had such training on induction. The majority said that they learnt how to deal with aggressive patients by experience. 260.2. At paragraph 7.1.4 (page 797) she recommended a review of training of staff in dealing with confused and aggressive patients to include non-physical de-escalation, information on other restrictive interventions, how to assess for specialling and interacting with patients with mental health conditions. 260.3. At paragraph 7.5.3 (page 799) she recommended a review of practices on Ward N2 of managing confused or aggressive patients and that any gaps in training be addressed. 260.4. Her Action Plan point 1 at page 801 was for a review of the training all staff receive in relation to dealing with aggressive or confused patients.[261]These findings corroborate Mr Smith’s expressed concerns about training; it appears from Ms Mowlan’s report that there were problems with the training for Healthcare Workers in specialling confused or aggressive patients.[262]However, it is not a situation that amounts to a breach of trust and confidence. Mr Smith received training. It looks as if it could have been better. That is not conduct with the purpose of or that is likely to, undermine mutual trust and confidence. It is not an indication by the employer that it does not intend to be bound by the terms of the contract of employment. 2.2.2 “Requiring the Claimant to ‘special’ for more than two hours consecutively in breach of para 7 point 4 of the Respondent’s Specialling Policy”[263]Mr Smith probably was occasionally required to special for more than 2 hours, Ms Mowlam report 796, 6th bullet point on that page records that she found on the whole the 2 hour time limit was adhered to although that was sometimes challenging due to staffing levels. That was our conclusion on the evidence too. Sometimes staffing levels would have made exceeding the 2 hour limit necessary, sometimes it would have been appropriate to extend the time if the patient was sleeping. Specialling for more than 2 hours is contrary to the Respondent’s specialling policy, but it is not a breach of contract, it is not conduct calculated to or likely to destroy mutual trust and confidence. When it occurred, there was reasonable and proper cause. 2.2.3 “Claire Chapman, making a comment in an Occupational Health referral on 15/12/2021 that “ whilst we can continue to implement the restrictions on a temporary basis, we cannot implement these indefinitely due to the nature of Stuart’s role” (a reference to specialling)”[264]We have already discussed this issue, the question of whether it was reasonable for the Respondent to take the view that it was not possible permanently, to have a Healthcare Assistant working on Ward N2 who was exempt from specialling. Ms Chapman had reasonable and proper cause for the comment that she made to Occupational Health in her letter.[265]For the avoidance of doubt, had this allegation been made as an allegation of failure to make a reasonable adjustments, it would have failed for the same reasons explained above, 7.1.4 “Sarah Hardy writing to the Claimant on 14/02/2022 requiring a return with no changes to be made to the practice of specialling or to the Claimant’s role in relation to specialling”[266]Mrs Hardy’s letter to Mr Smith, the final paragraph at page 649, does not say what the list of issues suggests that it says. Changes are anticipated during a phased return to work and changes are contemplated in relation to Mr Smith’s role, specifically, a move to a different role. Mr Smith’s constructive dismissal claim is not founded on the suggestion that he might have to change role.[267]We note that the end of the previous paragraph at 649 indicates that Mr Smith has suggested that in fact, in consultation with his therapist, it might be possible that he will be able to resume specialling.[268]The position taken by Mrs Hardy was a reasonable position for her to take and it is clear that everything is subject to whatever Occupational Health might advise and as we have previously said, Mr Smith had no reason to believe that the Respondent would not follow whatever that advice may have been. The terms of Mrs Hardy’s letter to Mr Smith of 14 February 2022 was not calculated to, nor likely to, undermine mutual trust and confidence. There was reasonable and proper cause for its terms. It does not indicate that the employer does not consider itself bound by the contract of employment.[269]In conclusion, there has been no breach of the implied term of mutual trust and confidence by the Respondent, neither by reason of each allegation individually, nor collectively. Mr Smith’s frequent expressions of gratitude to the people who were managing him lends weight to that conclusion.[270]The claim of constructive unfair dismissal also fails. A Note on Remedy[271]At the conclusion of delivering our Judgment, I indicated to the parties that it seemed to the tribunal, subject to hearing further any evidence and submissions, that remedy for Mr Smith on his successful sex discrimination claim, is likely to entail injury to feelings only. It seemed to us on a preliminary view, that Mr Smiths’ loss of earnings, due to his absence from work because of ill health, was caused by many other factors and likely not, the discrete instances of sex discrimination.[272]Mr Smith disagreed. He said that his loss of earnings were caused by the acts if sex discrimination and challenged the tribunal over the suggestion that there were other causes of his absence. There are many documents in the bundle that suggest many other matters that are the source of Mr Smiths’ mental ill health and his absences, other than the practice of the Respondent sometimes selecting an HCA for specialling potentially aggressive patients on the basis of their sex. The most obvious is Mr Smith’s ire at the respondent’s perceived failure to make reasonable adjustments, failure to provide adequate training or adhere to policy. Mr Smith had serious mental health issues during the 18 month hiatus to November 2019. Other causes are alluded to above in our paragraphs 112, 115, 116, 118, 122, 123 and the document referred to at paragraph 143. There are other relevant documents on the point in the bundle that we have not referred to in our decision.[273]We have given directions as to remedy. Much on how things progress will depend on what Mr Smith says in his updated Schedule of Loss. I ought to explain that one possible issue on remedy may be the question of causation: what caused his absences, what caused the degree of injured feelings. Depending on what Mr Smith claims, medical evidence in the form of a psychiatric report on causation, may be necessary. If that arises, the tribunal will expect the parties to cooperate in the joint instruction of an agreed expert. Instructing an expert witness may mean that the case will not be ready for the remedy hearing on 14 October and it may need to be postponed. Approved by: