Ms L Loureiro v Royal National Orthopaedic Hospital NHS Trust Ltd: 3306559/2021

EMPLOYMENT TRIBUNALS

Case No 3306559/2021

Between

Ms L LoureiroClaimant

Royal National Orthopaedic Hospital NHS Trust LtdRespondent

Before

Employment Judge Quill

In person for claimant

Mr B Jones (instructed by counsel) for respondent

Date 30 June 2024

JUDGMENT

[1]The complaints which go forward are those identified in the separate case management summary and orders.

[2]The application to strike out any of those complaints is refused.

REASONS

[1]I gave reasons orally. I refer to the written reasons given for making deposit orders for the written reasons for deciding not to strike out.

[1]The claimant was ordered to pay a deposit of £5.00 (each) for the respective allegations or arguments that underlie each of the above-mentioned complaints. This was at 6 and 7 February 2023.

[2]The Order was sent to the claimant on 7 April 2023..The claimant has failed to pay either deposit (by the required date of 28 April 2023 or at all.

[3]The complaints mentioned above are therefore struck out.

[4]There were two other deposit orders made. The date that the payment was due was 28 April 2023. The Claimant, however, did not make the payment until 2 May 2023 (according to HMCTS records). She has submitted evidence that she allegedly posted the payment on 28 April 2023 and so (effectively) admits that the payment cannot have been received by 28 April 2023. A decision on whether to strike out further complaints or whether, in the alternative, to vary the date for payment of the deposit, and grant relief from the sanctions for failure to comply with the original order will be made at the preliminary hearing 14 September 2023 7.6C Deposit not paid – Judgment - claimant Rule 39 (time permitting) or else later if the judge at that hearing orders it to take place later.

[5]The hearing fixed for 14 September 2023 will therefore be in public, but all other details will be as previously notified.

[1]In a claim form presented to the Tribunal on 6 May 2021, the claimant claims discrimination arising in consequence of disability; victimisation; and harassment related to disability. Her disabilities are Dyslexia diagnosed in 2007, and Anxiety. Both have been admitted by the respondent as disabilities in this case. The issue is one of knowledge.

[2]In the response presented to the Tribunal on 4 November 2021, and subsequently amended, her claims are denied. The respondent asserts res judicata, issue of estoppel, and out of time points.

[3]There were three preliminary hearings in this case. The first was on 8 June 2022, before Employment Judge Maxwell, who listed the case for a preliminary hearing in public on 6 – 7 February 2023, before an Employment Judge to hear and determine whether, in relation to additional matters relied upon by the claimant, she needed to make an application to amend. In addition, whether the claims should be struck out on the basis of either res judicata or issue estoppel; or on the grounds that they have no reasonable prospect of success, or they cannot be sensibly responded to? Further, whether there should be Deposit Orders as the claims have little reasonable prospect of success?

[4]The case was listed for a Final Hearing from 11 – 15 December 2023. The Judge also set out the claims and issues in the case, (pages 71 – 79 of the Bundle).

[5]At the second preliminary hearing held on 6 – 7 February 2023, before Employment Judge Quill, the case was listed for a Case Management Preliminary Hearing on 14 September 2023, the outcome of which was that the Judge allowed, in part, the claimant to rely on further particulars of her claims. The Judge also issued Deposit Orders later on 7 April 2023, (pages 147 – 181).

[6]The third preliminary hearing was held on 14 and 26 September 2023, before Employment Judge L Cowen. Some of the claimant’s additional particulars were allowed and others were refused. The List of Issues was amended by the Judge and are the issues in this case.

[7]The claimant had presented an earlier claim, case number 3313867/2019, before the Tribunal on 13 April 2019, alleging failure to make reasonable adjustments; harassment related to disability; and victimisation. The hearing was held on 23 – 26 August 2021. In a judgment sent to the parties on 21 October 2021, all claims were dismissed. References will be made to relevant parts of that judgment.

[8]There is another claim, her third claim, which is not before this full Tribunal. It is case number: 3304301/2023, which is listed for a Final Hearing on 21 – 30 August 2024. She successfully objected to the issues and claims in that claim being consolidated and dealt with in this case.

The issues

[9]We have copied the List of Issues by EJ L Cowen, and they are set out below keeping the same paragraphs as are in the bundle at pages 230- 234. They are as follows:- 1. Res Judicata / Estoppel 1.1. Whether the Claimant is prevented from pursuing any of her claims by reason of: 1.1.1. being matters she complained about in case number 3313867/2019; 1.1.2. being matters she could have complained about in those earlier proceedings. 2. Time limits 2.1. Whether the Claimant’s claims were presented within the applicable statutory time limit. 3. Disability 3.1. Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: 3.1.1. Whether the Claimant had a physical or mental impairment, namely: 3.1.1.1. Anxiety; 3.1.1.2. Dyslexia. 3.1.2. Whether this had a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities? 3.1.3. If not: 3.1.3.1. whether the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment; 3.1.3.2. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? 3.1.3.3. Were the effects of the impairment long-term? The Tribunal will decide: 3.1.3.3.1. did they last at least 12 months, or were they likely to last at least 12 months? 3.1.3.3.2. if not, were they likely to recur? 3.2 The Respondent concedes the Claimant was a disabled person at material times. 4. Discrimination arising from disability (Equality Act 2010 section 15) 4.1. Did the Respondent treat the Claimant unfavourably by: 4.1.1. A delay to dealing with her grievance submitted on 25 March 2021. 4.1.2. A lack of support by management of her reasonable adjustments: 4.1.2.1. not having another member of staff to share the workload as allocated by Ms Gami on roster; 4.1.2.2. being picked on for not completing tasks; 4.1.2.3. moving and wanting to remove my locked cabinet from reception where all my dyslexic aids were kept; 4.1.2.4. having no prompt return to work meetings / handovers by ward managers 4.1.2.5. lack of recommended Dyslexia supportive aids to work with for almost a year 4.1.2.6. Human Resources manager Mr Dingley going behind my back asking questions about my Dyslexia to my Technology Assistant Coach; 4.1.2.7. support meeting became intermittent in early 2020 and stopped in mid2020; 4.1.2.8. irregular provision of meeting minutes. 4.1.3. Ms D’Arcy suggesting the Claimant take early retirement: 4.1.3.1. on 23 September 2019; 4.1.3.2. on 2 February 2021. 4.1.4 On 23 September 2019, Ms D’Arcy persuading the Claimant to go back to Occupational Health for another appointment to answer questions she refused to answer during previous Occupational Health Appointments. 4.1.5 Ms Ansell referring the Claimant to Occupational Health and submitting a set of questions, without the Claimant’s consent. 4.1.6 On about 16 September 2019, a meeting invitation being sent by Ms Hoe to the Claimant’s Trade Union Representative without her consent. 4.1.7 Denying full pay during the Claimant’s Sickness Absence in 2019. 4.1.8 In January 2021, not providing the Claimant with a small Christmas present. 4.1.9 On or before 4 December 2019, removing the Claimant from the ward clerk email group. 4.1.10 In around 6 August 2020, in an email to Jo Ansell, the Claimant’s manager, Mrs Gami, making the remark that “she said she cannot understand”. 4.1.11 Not providing handovers to the Claimant on her return to work following annual leave or sick leave. 4.1.12 HR not acknowledging the Claimant’s difficulties encountered with Ms Gami 4.1.13 HR refusing for the Claimant to undertake redeployment. 4.1.14 On 25 November 2020, Ms Ansell writing that no phased return to work was needed. 4.1.15 Not arranging a Dyslexia assessment following the Claimant’s request in November 2019 or when she subsequently requested this on several occasions; 4.2. Did the following things arise in consequence of the Claimant’s disability: 4.2.1. voicing her concerns about how she felt she was being treated due to her disability; namely, 4.2.1.1. 13 May 2018, the claimant first told Ms Gami that she was discriminating against due to her Dyslexia; 4.2.1.2. 14 June 2018, the claimant voiced to Ms Gami that she felt discriminated against due to her disability; 4.2.1.3. 19 February 2019, the claimant voiced her concerns to Ms Gami that she was being harassed due to her Dyslexia again; 4.2.1.4. 19 February 2019, the claimant voiced her concerns to Ms Kehoe about being harassed due to her Dyslexia again; 4.2.1.5. 20 February 2019, the claimant voiced her concerns to HR mediator Ms Ford that she was being harassed due to her disability again; 4.2.1.6. 26 February 2019, the claimant made an allegation that she had received discriminatory behaviour due to her Dyslexia; 4.2.1.7. 20 February 2019, the claimant voiced her concerns to Mrs Ansell about being harassed due to her disability again; 4.2.1.8. 2 April 2019, the claimant voiced concerns to Ms Kehoe and Ms D’Arcy of unfair unsupportive treatment during a grievance meeting; 4.2.1.9. 30 May 2019, the claimant made a complaint to Ms Papapavlou on 30 May 2019 of discrimination harassment; 4.2.1.10. 23 March 2021, the claimant made a third formal grievance in which she made allegations of unfair treatment due to her Dyslexia. 4.2.2. panic attacks at work; 4.2.3. taking sick leave; 4.2.4. needing adjustments at work;4.1 Was the unfavourable treatment because of any of those things?

4.2 Was the treatment a proportionate means of achieving a legitimate aim?

4.3 The Tribunal will decide in particular: 4.3.4 was the treatment an appropriate and reasonably necessary way to achieve those aims; 4.3.5 could something less discriminatory have been done instead; 4.3.6 how should the needs of the Claimant and the Respondent be balanced?

4.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? 5. Harassment (Equality Act 2010 section 26) 5.1. Did the Respondent do the following things: 5.1.1. The same matters as relied upon for discrimination arising. 5.2. If so, was that unwanted conduct? 5.3. Did it relate to disability? 5.4. Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 5.5. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 6. Victimisation (Equality Act 2010 section 27) 6.1. Did the Claimant do a protected act as follows: 6.1.1. Presenting a tribunal claim; 6.1.2. Raising a grievance in 2018; 6.1.3. Raising a grievance in 2019. 6.2. The Respondent admits these matters amounted to protected acts. 6.3. Did the Respondent do the following things: 6.3.1. The same matters as relied upon for discrimination arising. 6.4. By doing so, did it subject the Claimant to detriment? 6.5. If so, was it because the Claimant did a protected act? 6.6. Was it because the Respondent believed the Claimant had done, or might do, a protected act? 7. Remedy To what remedy or remedies is the Claimant entitled.

The Evidence

[10]The Tribunal heard evidence from the claimant who did not call any witnesses.

[11]On behalf of the respondent evidence was given by:  Ms Kayleigh Hoey, Ward Manager;  Ms Joan Ansell, Ward Manager;  Ms Nita Gami, Lead Ward Clerk;  Ms Clare Kehoe, Divisional Head of Nursing;  Ms Angela D’Arcy, former Senior Human Resources Advisor;  Ms Karen Parker-Ford, Senior Human Resources Advisor;  Ms Loraine Papapavlou, Lead Nurse – Critical Care; and  Mr John Bateson, Deputy Director of Strategy and Improvement.

[12]In addition to the oral evidence the parties produced a joint bundle of documents comprising of 1,724 pages. There was also an additional bundle comprising of 191 pages. During the course of the hearing further documents were produced, at pages 1,725 to 1,728.

[13]The claimant invited the Tribunal to read the confidential Psychological Report prepared by Mr Tim O’Hare, Chartered Educational Psychologist, dated on or around 28 September 2007, which we have done.

Findings of Fact

[14]The respondent is an NHS Hospital Trust based in Stanmore, Middlesex, and is a specialist orthopaedic hospital.

[15]On or around 28 September 2007, Mr Tim O’Hare, diagnosed the claimant as suffering from a Dyslexic Type Specific Learning Difficulty. His report was prepared in order to assist the claimant in her Psychology and Philosophy degree studies by making reasonable adjustments.

[16]She grew up in Angola speaking Portuguese and arrived in England at the age of 18 years. She learned English while working here in this country. English is her second language. She issued her first Employment Tribunal claim on 13 April 2019, in which she claimed: failure to make reasonable adjustments; harassment related to disability; and victimisation, against the respondent. The case was heard on 23 to 26 August 2019. Judgment in writing was sent to the parties on 21 October 2019, in which all claims were dismissed.

[17]From 7 December 2015, she worked for the respondent as a Bank Ward Clerk, as and when required. Following a successful interview, from June 2017, she was employed as a Ward Clerk on the Children and Teenage Unit, known as the Coxen Ward.

[18]As Ward Clerk she was based in the Reception area and was the first point of contact with the patients. Her duties involved inputting patient information on to the computer system; assisting patients to their bedsides; filing; arranging transport; ordering materials for the Ward; making and receiving telephone calls; taking messages; transferring calls; responding to Estate; keeping medical records in order; attending the doors; booking interpreters; making hospital appointments, as well as ensuring patients’ notes were ready for operations and clinical examinations.

[19]Initially she was line managed by Ms Sandra Moore, Lead Ward Clerk, who was replaced by Mrs Nita Gami.

[20]Mrs Gami commenced employment with the respondent around 2009 as a Ward Clerk and worked closely with the claimant. On 2 October 2017, she was recruited to the position of Lead Ward Clerk and became the claimant’s line manager. We find as Ward Clerks they had a good working relationship. The claimant was the first to congratulate Mrs Gami on her promotion. However, this case revolves, to a large extent, around the subsequent strained relationship between the two of them with various allegations being made by the claimant against Mrs Gami.

[21]As Lead Ward Clerk Ms Gami prepared and implemented the rota for approximately 14 – 16 Ward Clerks in the Trust, who all worked on different wards. She had responsibility for checking that all of the Ward Clerks’ tasks were completed in a timely and accurate manner. She also had overall management responsibility for their performance and supervised their training, as well as conducting their appraisals alongside the Ward Managers.

[22]On 16 October 2017, the claimant informed Mrs Gami that she had Dyslexia and was managing it well by using colour cards to organise her workload and tasks. When Mrs Gami asked her if she needed any further support, the claimant replied that she did not. We find that her relationship with Mrs Gami deteriorated when Mrs Gami raised, in April 2018, concerns about her work. This is set out in paragraph 21 of the first Tribunal’s Judgment, which states, “21. The Claimant was unwell in April 2018 and her work was being covered by Bank Ward Clerks and Ms Gami. The Claimant worked with a colleague who covered afternoons and the Claimant worked in the mornings. Some work was being left undone causing a backlog. Ms Gami became concerned and an audit showed that some things were being missed on this particular Ward. Ms Gami decided she would hold informal meetings with each, the Claimant and the colleague. The Claimant was written to and invited to an informal meeting to “discuss concerns that I have relating to your performance at work and identify ways in which I can support you.” (page 378) The Claimant replied on 11 June querying the motives for the informal meeting. She said she was totally unprepared and that it was contradictory to say it was informal but advising her in the letter to speak to the Trade Union.” Conclusions on the claims and issues

[23]We now focus on the list of issues as it is very lengthy and was quite confusing in relation to identifying the “something arising” in the discrimination claims for something arising in consequence of disability. It is the claimant’s case that during her employment she raised concerns about her treatment being on grounds of her Dyslexia or disability. As the issues are quite extensive, we propose to deal with them in chronological order, and to determine, from the evidence, whether there are material facts in support of the claimant’s assertions and claims. We made findings of fact and gave our conclusions. The first in time is alleged to have taken place on 13 May 2018, in an email sent by the claimant to Mrs Gami, in which the claimant wrote the following: On 13 May 2018, the claimant told Mrs Gami that she was discriminating against her because of her disability-paragraph 4.2.1.1 of the List of Issues “Hi Nita Just saw your email so I am confirming return to work Monday with sick certificates, after speaking to Joan when WED and OH on Friday. I apologise about phone conversation, I never knew that you see it as unprofessional, especially when not much was said. Sabeen just called me as you do to find out how I was doing and I noticed she was very upset. I asked her and she mentioned she had a performance meeting but she was not going to trouble me with that. I decided to clarify a few things before coming back to work for my own sake but I completely welcome a meeting with both of us to avoid saying things without the other being present.” (page 404)

[24]Reference to ‘Sabeen’ is to Ms Sabeen Jivan, now Patel, the other Ward Clerk. Mrs Gami did not want her staff to be discussing work-related matters with someone on sick leave.

[25]In the claimant’s witness statement she said that on 13 May 2018, after the return-to-work email in which she mentioned being involved with a colleague, Ms Jivan, she had a conversation with Mrs Gami prior to the face-to-face, return-to-work meeting, during which she, the claimant, asserted that it was unfair to use her Dyslexia as a motive for something she did not say. In support of that statement she referred to pages 404 – 407, and 1106 – 1107, in the joint bundle. We have looked at those documents. Pages 404 – 407, are emails from the claimant to Mrs Gami and vice versa. In them there is no reference to emails sent on 13 May 2018, by the claimant asserting that she had been discriminated against by Mrs Gami because of her Dyslexia. The documents on pages 1106 – 1107, are emails from Mrs Patel, or Ms Jivan, dated 4 October 2020, dealing with work-related issues. There is also a witness statement addressed to Watford Employment Tribunal, likely to have been sent in connection with the claimant’s first Employment Tribunal hearing.

[26]Initially, when the claimant was cross-examined in relation to her assertion on 13 May 2018, she said that she got that date wrong, and it was a date in March 2018. During her cross-examination of the respondent’s witnesses she reverted back to 13 May 2018 being the date she asserted that she had been discriminated against because of her Dyslexia. As we have found, there are simply no references to Dyslexia in the emails relied upon by her. This aspect of her claim of discrimination arising in consequence of disability, is not borne out from the evidence and is not

[27]The next matter in time is the incident on 12 June 2018, a discussion between Mrs Gami and the claimant to which the claimant alleged that Mrs Gami made statements relating to her Dyslexia. That incident was aired during the first Tribunal hearing on 23 to 26 August 2021, and findings of fact were made. Those findings are in paragraphs 22 – 24 of the Judgment. During the course of the claimant’s evidence given in crossexamination in this case before us, she did not accept the Tribunal’s findings or the Tribunal’s conclusion in paragraph 69 of the Judgment. The Tribunal concluded that there was nothing untoward about the discussion on 12 June 2018 and that the matter was out of time. Even if time was extended, the Tribunal held that that aspect of the claimant’s claim would not have succeeded.

[28]We do not propose to re-open the matters pertaining to the discussion on 12 June 2018. On 14 June 2018, the claimant voiced to Mrs Gami that she felt discriminated against because of her disability- paragraph 4.2.1.2

[29]As regards 14 June 2018, paragraph 4.2.1.2 in the List of Issues, the claimant asserted that she voiced to Mrs Gami that she felt discriminated against because to her disability. The meeting on that day was held to discuss work issues and the concerns Mrs Gami had at the time. She attended and gave her account of events. The meeting was stopped by the Ward Managers, Ms Jo Ansell and Ms Kayleigh Hoey, as it was unclear which Ward Clerk was responsible for carrying out certain tasks. The other reason, as found by the earlier Tribunal, was that Ms Ansell and Ms Hoey felt that the other Ward Clerk, Ms Jivan, should have been present at the meeting to give her account of events. (page 413).

[30]The notes in relation to the discussion on filing, states, “Lucia disagreed and justified that as she was on annual leave it is not her responsibility to be in charge of loose filing. Unprofessional and unnecessary conversation (bomb) was started by Lucia and also she felt that she has been harassed and bullied by inviting her for informal meeting.”

[31]The reference to ‘bomb’ was to the claimant saying to Mrs Gami that if there was a bomb would Mrs Gami still expect her to do all the work. Mrs Gami took exception to the use of the word ‘bomb’ as an analogy because the claimant could have said she was not able to do it if she did not have enough time and that if there was a bomb it was obvious that she would need to leave immediately. It was unprofessional, according to Mrs Gami, for the claimant to have used the word ‘bomb’.

[32]Mrs Gami told the Tribunal that during that meeting there was no discussion or suggestion about the claimant’s Dyslexia, or that her actions were related to either the claimant’s Dyslexia or Anxiety. This was supported by Ms Hoey and Ms Ansell when they gave evidence to us.

[33]Having read the notes of the meeting, we were unable to find references to the claimant’s Dyslexia and/or Anxiety, or that she had stated she had been discriminated against because of her disability. This aspect of her claim of discrimination arising in consequence of disability, is not wellOn 19 February 2019, the claimant voiced to Mrs Gami that she was being harassed due to her Dyslexia again - paragraph 4.2.1.3

[34]In relation to this paragraph, the claimant asserted that on 19 February 2019, she voiced her concerns to Mrs Gami that she was being harassed due to her Dyslexia. This again was considered by the first Tribunal in paragraphs 32 – 42 inclusive, in the judgment.

[35]In paragraph 38 the Tribunal found, “The Tribunal find that there was mention of the Claimant’s Dyslexia and the query about whether that meant she could not read the rota. That appears to the Tribunal to be a reasonable question given that the Claimant herself had made reference to that and we accept that this was the first time the Claimant had suggested any issues with understanding the rota.”

[36]In making that finding the Tribunal considered the evidence given by the claimant and by Mrs Gami. In our case, the claimant asserted that on 19 February 2019, she had voiced concerns to Mrs Gami that she was being harassed due to her Dyslexia.

[37]In her evidence before us Mrs Gami said that during her conversation with the claimant, the claimant said to her that she, Mrs Gami, did not understand her disability and that she should take her Dyslexia into consideration. They agreed that the claimant should go home on that day as Mrs Gami was unable to change her day off. In the claimant’s email to Ms Clare Kehoe, Divisional Head of Nursing, copying Mrs Gami, Ms Ansell, Ms Hoey, Ms Angela D’Arcy, Senior Human Resources Advisor, and Ms Gemma Jones, Trade Union representative, the claimant accused Mrs Gami of harassment arising out of the discussion they had earlier in the day and felt patronised and discriminated by her. (532 – 533).

[38]In her later email sent to Ms Kehoe on that day, the claimant clarified the events on 19 February 2019 and again accused Mrs Gami of discriminating against her because of her disability, (529 – 530).

[39]We find that, in relation to the assertion in paragraph 4.2.1.3, the first Tribunal found that the interaction between Mrs Gami and the claimant was not harassment, and that the claimant did not mention that she had been harassed by Mrs Gami because of her Dyslexia. We accept the Tribunal’s findings and do not seek to disturb them. On 19 February 2019, the claimant voiced to Ms Kehoe that she was being harassed due to her Dyslexia again - paragraph 4.2.1.4

[40]Paragraph 4.2.1.4 refers to the emails sent by the claimant on 19 February 2019 to Ms Kehoe alleging that she had been harassed because of her Dyslexia, (532 – 533 and 529 – 531).

[41]We have read the emails. In the first one, the claimant wrote to Ms Kehoe, amongst other things: “I am tired of being made to feel insecure and harassed by the way I am spoken to by Nita when it comes to understand the needs of being Dyslexic.”

[42]In the follow up email she sought to clarify what happened during her discussion with Mrs Gami and raised allegations of discriminatory behaviour. We find that the emails, when taken together, do reveal that the claimant made a protected act in alleging that she had been harassed by Mrs Gami for a reason related to her Dyslexia. It is, however, not something that arises in consequence of disability as the claimant was simply raising a concern.

[43]The issue as to whether this should have been raised at the first Tribunal, we bear in mind that it is important that a claimant should put all his or her eggs on one basket in order for a court or Tribunal to be able deal with them on the one occasion rather than in a piecemeal fashion, Henderson v Henderson 1843 3 Hare 100 ChD. There was no impediment to the claimant from doing so at that time. The principle of issue estoppel applies, and this claim is struck out. On 20 February 2019, the claimant voiced her concerns to Ms Karen ParkerFord, Senior Human Resources Advisor, that she was being harassed due to her Dyslexia again - paragraph 4.2.1.5

[44]In relation to paragraph 4.2.1.5, emails were sent by the claimant to Ms Karen Parker-Ford, on 20 February 2019, in which she stated that she had been harassed because of her disability by Mrs Gami. As a result of the deteriorating relationship between her and Mrs Gami, Ms Parker-Ford was invited to carry out mediation between them. This resulted in a Mediation Agreement. (491 – 494).

[45]On 18 February 2019, Ms Parker-Ford contacted the claimant and Mrs Gami and asked to meet with them. The claimant was agreeable but on 20 February 2019, she sent Ms Parker-Ford a lengthy email explaining what had happened the day before between her and Mrs Gami when she felt discriminated, patronised and harassed and that mediation was not working. As a consequence, Ms Parker-Ford decided to end mediation. In an email sent on 20 February 2019, sent by the claimant to Ms ParkerFord, she referred to the behaviour of Mrs Gami and repeated the allegation that she felt insecure and harassed by the way she had been spoken to by her and Mrs Gami’s alleged inability to understand the needs of a Dyslexic. Referring to the incident on 19 February, she stated that she felt, “discriminated, patronised and harassed”, (525).

[46]In respect of her email to Ms Parker-Ford, we find that, on the face of it, it constituted a protected act, but this aspect of her case should have been ventilated during the first Employment Tribunal hearing, Henderson v Henderson. It is, accordingly, struck out. On 20 February 2019, the claimant voiced her concerns to Ms J Ansell, Ward Manager, that she was being harassed due to her Dyslexia again - paragraph 4.2.1.7

[47]In paragraph 4.2.1.7, the claimant asserted that on 20 February 2019, she voiced her concerns to Ms Ansell about being harassed related to her disability. Here reliance is placed on an email sent to Ms Ansell on that day. In it the claimant thanked Ms Ansell and Ms Hoey for keeping her updated on the access door. She had moved to the Colman Unit because of pain in her ankle aggravated by the fact that she had to get up and press the access door button while working on reception. She wrote in her email the following, “About yesterday morning also, something happened which I think you should know – I had a very unsettling and upsetting conversation with Nita at the end of the TCU Ward next to the stationery cupboard during which I believe a pt complained. I had my back to the pt’s bed so I am not sure what the pt said, but the pt called a couple of times and Nita who called to see the patient went to talk to the pt for a few seconds, came back and closed the door. When we finish the conversation I was feeling anxious and too distressed to speak to anyone – just when to the desk to finish off and email Clare about it. I am not sure either, if this is something the TCU Ward Manager should be made aware of or not; it was either pt in bed 11 or 12 in case of further complaint. As I said, my back was turned and I was already upset by the tone of questioning but don’t think what happened was appropriate for me or the patients nearby.” (536)

[48]The reference to “pt” is to a patient. We find that there is no reference in this email to the claimant having been discriminated against because of her Dyslexia or having been harassed for a reason related to her disabilities. There is also no protected act. This is, in part, a claim of discrimination arising in consequence of disability, but it is very difficult to discern what is the something arising as the claimant was complaining about Mrs Gami’s questioning of her. We are unable to make findings of fact on the “something arising”. It is, therefore, not well-founded. The same applies to harassment related to disability as there is no evidence of unwanted conduct related to disability. If the claimant is also pursuing a victimisation claim, there are no findings of fact from which we could decide that Mrs Gami had behaved in the manner alleged because she had been significantly influenced by any protected acts. In addition, this issue predates the presentation of the first claim and is subject to the Henderson v Henderson principle in relation to issue estoppel. Alternatively, it is struck out. On 26 February 2019, the claimant made an allegation that she had been the subject of discriminatory behaviour due to her Dyslexia - paragraph 4.2.1.6

[49]The claimant alleged in paragraph 4.2.1.6, that on 26 February 2019, she made an allegation that she had suffered discriminatory behaviour because of her Dyslexia. This is a reference to her second grievance dated 25 February 2019 but sent to the respondent on 26 February 2019. The subject line was, “Formal Grievance Stage 2”. She had submitted her first grievance on 31 July 2018. In her grievance letter dated 25 February 2018, to Ms Manjit Mahal, Deputy Director of Workforce, she invited Ms Mahal to re-open those matters which were the subject of her first grievance and to add them to the events in her second grievance letter. The content of which was her concerns about Mrs Gami’s alleged treatment of her as being discriminatory, and the lack of support. She alleged that management had been aware of the ongoing situation but had not intervened to stop it, which was quite disappointing. Following the incident on 19 February 2019, she could no longer work under such, “hostile conditions; always looking over my shoulder, doubting myself under stress / anxiety and thinking if I do a mistake I am going to be mocked or bullied.”

[50]She claimed that she had lost complete trust in Mrs Gami, and that working with her was detrimental to her wellbeing as she had behaved on occasions in a, “non-transparent, dishonest manner; and I even fear that she could one day just alter my work so that I take blame. This last incident not only took me back to moments of intense anxiety but also made me feel discriminated, patronised and harassed. …” (546 – 550)

[51]Her email was copied to Ms Kehoe and Ms Jones, Union representative.

[52]We find that the email is a protected act, but this issue should have been raised at the first Tribunal hearing, Henderson v Henderson. It is, therefore, struck out. On 2 April 2019, the claimant voiced concerns to Ms Kehoe and Ms D’Arcy of unfair, unsupportive treatment during a grievance meeting – paragraph 4.2.1.8

[53]In relation to paragraph 4.2.1.8, the claimant asserted that on 2 April 2019, she voiced concerns to Ms Kehoe and Ms D’Arcy of unfair, unsupportive treatment during a grievance meeting held on 2 April 2019. It was Chaired by Ms Kehoe with Ms D’Arcy being in attendance, as well as Mr Jack Mooney, Therapies Co-Ordinator, and Mr Jack Lo, the Minute Taker. The claimant was also in attendance and raised her concerns about Mrs Gami’s alleged treatment of her. She stated that the matter had been ongoing for over a year without it being dealt with by the respondent. Ms Kehoe’s response was that the claimant should allow the Trust to take its time to carry out a proper investigation which would require people being interviewed, who might themselves be on either holiday or sick leave. The claimant said that she was Dyslexic and did not believe that the respondent’s managers were following the respondent’s policies. She felt that she had been discriminated against, starting with the incident the previous year, and although it went to mediation, there were still outstanding issues which had not been resolved. She felt stressed from the continuous bullying. She asserted that she had been told that the meeting was to be informal but then was later told that it would result in an Investigator being appointed. She further asserted that the meeting was recorded without her knowledge. (572 – 577).

[54]We heard evidence from Ms D’Arcy on the point of the meeting being recorded without the claimant being aware of it. She said that there appeared to have been a misunderstanding as the meetings are not normally recorded. When they listened to the recording it was accepted that there was no reference to the claimant being asked to give her consent to it being recorded. Others present gave their consent. We find that there was no animus behind not obtaining the claimant’s permission as this was an oversight on the part of Ms D’Arcy and Ms Kehoe. There was no discriminatory motive. The claimant did not suffer a detriment, as she was given later, a full transcript of what was said during that meeting. She has difficulty remembering things and the transcript would have been of great assistance to her. (573)

[55]As she alleged, on 2 April 2019, that she had been discriminated, harassed and bullied, and that her treatment had been unfair and unsupportive, this constituted a protected act. It is unclear what was the something arising from this paragraph in the List of Issues.

[56]There is also an issue estoppel point here, namely that this should have been included in the first Tribunal claim. It is, therefore, struck out. On 30 May 2019, the claimant made a complaint to Ms Loraine Papapavlou, Lead Nurse – Critical Care, of discrimination and harassment – paragraph 4.2.1.9

[57]The claimant alleged that on 30 May 2019, she made a complaint to Ms Loraine Papapavlou, Lead Nurse – Critical Care, alleging discrimination and harassment. Ms Papapavlou was asked by Ms Kehoe to investigate the claimant’s grievance sent on 26 February 2019. As part of that investigation she met with the claimant on 30 May 2019 at which notes were taken. In attendance were Ms Jones, Union representative; Ms Parker-Ford; and Ms Faye Vile, Minute Taker. The claimant stated that she felt she had been discriminated and unfairly treated by Mrs Gami. She said that were she to do something wrong she would be scared that Mrs Gami would call another disciplinary meeting. She claimed that Mrs Gami was not open to understanding Dyslexia and that she had to explain the support that she needed. Although Mrs Gami had apologised, she was not happy with the wording of the apology. She further alleged that Mrs Gami had lied during a meeting when she said that she had ordered equipment for her. The claimant said that she tried to explain to Mrs Gami that certain issues she was experiencing were because of her Dyslexia. She said that she found it difficult to work with Mrs Gami and felt anxious when she sees her. She also said that she started to feel harassed and had been falsely accused of doing things wrong. (633 – 636).

[58]She went on long-term sick leave from 15 April 2019 to 3 December 2019, for “Anxiety and Stress at Work”.

[59]We find that the discussion on 30 May 2019, constitutes a protected act. It, however, remains unclear what is the something arising from this paragraph in the List of Issues. The claims here are denied by the respondent’s witnesses. We are unable to making findings from which we could decide that the claimant was harassed for a reason related to disability, or that Mrs Gami’s alleged behaviour was significantly influenced by any protected acts. Accordingly, these claims are not wellOn 3 May 2029, removing the claimant from the Ward Clerks’ email group –

[60]On 3 May 2019, at 14:17, the claimant emailed Ms Papapavlou, Ms Hoey, Ms Kehoe, Ms Ansell, Ms Parker-Ford, Mr Dingley, Human Resources Business Partner, Ms D’Arcy and others. The subject line being “Personal Email”. She wrote, “Dear all, As I am off sick and it was pointed out to me that I should keep away from work email. Would you please, if the need arises meanwhile, kindly email me on my personal email? …” (page 628)

[61]Mrs Gami told the Tribunal that following the claimant’s email of 3 May 2019, she asked IT to remove the claimant from the Ward Clerks’ email group to protect her health.

[62]It is the claimant’s case that she did not give instruction for that to happen. She had grievances and the second investigation was ongoing. She did not want to mix up her personal issues with work issues and did not want to go through all NHS emails to determine what was relevant to her from Occupational Health referrals and sickness absence meetings. We find that all of these matters were not set out in her email to the managers. A decision was taken by Mrs Gami not to have the claimant read work related matters while on sick leave suffering from Stress and Anxiety. This was a reasonable decision to have taken and was in the claimant’s best interests having regard to her email. We also find that this is the practice of the respondent in dealing with staff who are on long-term sick leave. We do not find that this was unfavourable treatment, nor was it unwanted conduct as the claimant had requested it. There was also no evidence that the decision taken by Mrs Gami was significantly influenced by any protected acts. We have concluded that the claims under this paragraph are not well-founded. Long-Term Sickness Absence meeting 26 June 2019

[63]On 26 June 2019, while on sick leave, the claimant attended Stage 1 of the respondent’s formal Long Term Sickness absence procedure. Also in attendance were Ms Jones, as well as Ms D’Arcy. It was Chaired by Ms Ansell and Ms Hoey, who at that stage were the claimant’s temporary line managers. The claimant was informed that should her absence continue, they would have to follow Stage 2 of the procedure, (pages 848 – 849). Ward Clerks and grievances

[64]During the course of her cross-examination, in December 2023, and without notice to the respondent, the claimant asserted that the Ward Clerks who raised grievances were removed by Mrs Gami from the Ward Clerks’ email group. She referred to Ms Anne McGarty and Ms Sabeen Jeeven/Patel. The claimant also asserted that Mrs Gami did not remove Ms Janice Newton from the group because she did not raise a grievance.

[65]The hearing was adjourned to April 2024, during which time the respondent obtained evidence in rebuttal to the claimant’s late assertions. We find that the Ward Clerks’ group is very active with quite a lot of emails being received each day. Managers with authority would ask IT to remove a member of staff if they are on long-term sick leave and may limit their inboxes to relevant information in order to assist in their return to work. If their employment has been terminated, the manager would inform IT with instructions to remove them from the group. Mrs Gami did not have the authority to remove a Ward Clerk from the group unless they specifically requested it.

[66]Ms McGarty commenced her employment with the respondent on 21 January 2019. On 28 August 2019, her employment was terminated on grounds of redundancy. She successfully appealed and was re-instated in October 2019, effectively from 29 August 2019. Between September to November 2021, while Mrs Gami was not her direct line manager, she took responsibility for her on a daily basis. She was removed from the group in or around September 2021 as she was on long-term sickness absence. She resigned from her employment on 18 November 2021, effective from 13 December 2021. Mrs Gami had no involvement in any grievances Ms McGarty may have raised.

[67]In relation to Ms Patel, she was employed by the respondent from 8 May 2006 to 27 February 2021. On 28 February 2019, she raised a grievance about the consultation process around the restructure, which was dealt with, Mrs Gami believed, by Human Resources and not by her. Ms Patel was removed from the group because she was on long-term sick leave. This was not a decision taken by Mrs Gami.

[68]Ms Newton commenced employment with the respondent on 7 April 2008. Mrs Gami do not believe that Ms Newton raised a grievance and had no extended period of sick leave. She is still in the group.

[69]The claimant did not produce any documentary evidence in support of the named individuals being excluded from the group. We accepted the evidence given by Mrs Gami supported by the documents she provided, Appendices A, B, C, and D. There is no evidential basis for the claimant’s allegation. On 23 March 2021, the claimant made a third formal grievance alleging unfair treatment because of her Dyslexia – paragraph 4.2.1.10

[70]On 23 March 2021, she lodged her third grievance again alleging unfair treatment due to her Dyslexia. She further alleged victimisation and psychological bullying. She said she developed Post Traumatic Stress Disorder due to anxiety, panic attacks at work, aggravation of her left ankle condition at work while minding doors on the Coxen Ward and, on 14 September 2020, having to pull a locked cabinet from under her desk in Reception, (1158 – 1159).

[71]We accept that the matters raised by the claimant do constitute a protected act. The difficulty here is that paragraph 4.2.1.10, is also relied on as something arising in consequence of disability, but we had difficulty accepting this as the alleged something arising is the claimant alleging unfair discriminatory treatment. We tried to understand and be sympathetic to the claimant in attempting to discern the “something arising” but were unable to do so. This aspect of her claim had not been made out. This aspect of the case is more in the nature of there being a protected act relevant to a victimisation claim. It is also unclear who were the individuals involved and whether their conduct towards the claimant was significantly influenced by any protected acts. We were unable to make findings of fact in support of unwanted conduct related to disability. These claims are, therefore, not well-founded. On 23 September 2019, Ms D’Arcy persuaded the claimant to go back to Occupational Health for another appointment to answer questions she refused to answer during previous Occupational Health appointments - paragraph 4.1.4.

[72]In cross-examination on this allegation, the claimant said in response to the question put to her by counsel for the respondent, whether the reference should be to the June 2019 Occupational Health referral. Her response was that she gets dates confused. She then said, “I get the dates mixed up and I got the two dates mixed up and then I got incidents mixed up.”

[73]The Long-Term Sickness Absence procedure, a Stage 2 meeting, was held on 23 September 2019. Chairing it was Ms Ansell. Also in attendance were Ms D’Arcy, Ms Jones and the claimant. It was pointed out that the respondent was still waiting for advice from the Occupational Health physician in view of the fact that the claimant was unable to attend the last appointment on 19 August 2019, due to her ill-health. This appointment was re-scheduled for 26 September 2019. Once the report was received, they would be discussing the next steps, including a phased return-to-work. In relation to the last Occupational Health appointment, the claimant was unhappy with the referral and felt “deceived” by the questions asked by her line managers. She also felt that she was persuaded to attend the appointment. It was explained to her that she was referred because of her current period of sickness, as well as her Dyslexia and how it impacted on her work, and whether her Dyslexia could get worse over time. She had previously stated that stress and anxiety could have an impact on her Dyslexia. These reasons were the respondent’s decision in making the referral. The intention was to support the claimant in her return to work and not to “deceive” her in any way.

[74]The claimant also felt that the last Occupational Health appointment was a failure as the person carrying it out was not qualified to do a disability assessment. It was pointed out to the claimant that the respondent’s policy was to take advice from the Occupational Health providers. The claimant said that she was waiting for a response from Mr Stephen Dingley, Human Resources Business Partner, regarding support from the Disability Association. Ms Ansell agreed to follow it up and that Mr Dingley should feedback to the claimant at the next meeting. The claimant was also invited to think about additional support she required and to let the respondent know. They also discussed a permanent reduction in the claimant’s working hours as an option for her to consider when she was fit to return to work.

[75]In relation to the process of re-deployment, the claimant stated that she was reluctant to take a re-deployment option due to her Dyslexia as she would find the change in environment too difficult to cope with. She would, however, consider another Ward Clerk vacancy, but not reporting to the Lead Ward Clerk, Mrs Gami.

[76]As regards ill-health retirement, Ms D’Arcy advised the claimant that she could apply for ill-health retirement but her Union representative, Ms Jones, advised that she did not feel it was appropriate for the claimant at that stage. It was explained to the claimant that should she not return as expected, the respondent would proceed to the final formal stage of the procedure. There was no return-to-work date as she was still unfit. Once the Occupational Health report was received, the matter could be discussed, and a phased return put into effect.

[77]The claimant was unhappy that the pre-arranged Stage 2 meeting was with her Union representative as it felt like the Trust was going behind her back. It was, however, pointed out to her that the respondent was following Supporting Staff Attendance policy. As the Claimant did not receive the letter in respect of an earlier scheduled meeting, the respondent contacted her Union representative, Ms Jones, via email to arrange a further meeting, (pages 957 – 959).

[78]We find that at the Stage 2 meeting, Ms Ansell and Ms D’Arcy were following the respondent’s Long-Term Sickness Absence procedure. In accordance with the policy, they discussed: a phased return to work as recommended by Occupational Health; a limited period of restricted/ modified or alternative duties, as recommended by Occupational Health; reasonable adjustments to accommodate the disability; a permanent reduction in numbers of hours worked; the process of re-deployment to an alternative post (temporary or permanent); ill-health retirement (advice should be sought through OH); and the possibility of termination of employment due to incapacity following advice. (page 299)

[79]We further find that it was explained to the claimant that an Occupational Health referral had been made in order to obtain recommendations to support her in relation to both her sickness absence, which was due to Anxiety, and also to understand how her Dyslexia impacted on her work given that she had previously stated that stress and anxiety could impact on her Dyslexia. The intension was to support her. It was entirely reasonable, having regard to the circumstances, to seek Occupational Health advice as the advice would not only help her, but management, as well in deciding what appropriate support and adjustments could be made to enable her to return to work. We also find that it was not unfavourable treatment of the claimant to ask her to attend Occupational Health for further advice on her health and a return-to-work date. The decision had nothing to do with any protected acts, and was not, in our view, unwanted conduct related to her disability. Ms D’Arcy was carrying out her duties and responsibilities as a Senior Human Resources Advisor in accordance with the respondent’s policies. The claims here are not well-founded. Denying the claimant full pay during her sickness absence – paragraph 4.1.7

[80]In relation to paragraph 4.1.7, the claimant alleged that she was unfavourably treated and denied full pay during her sickness absence in 2019. Her case is that, on an earlier occasion when she was absent due to sickness from 10 July to 26 October 2018, because of Stress at Work and Anxiety, she was paid her full pay.

[81]In the respondent’s Supporting Staff Absence policy, 2018, it provides sick pay entitlements depending upon length of service. It refers to an “employee”. There is no reference to Bank staff. During the first year of employment, employed staff are entitled to one month’s full pay and two months half pay. During the second year, two months full pay and two months half pay. During the third year, four months full pay and four months half pay. During the fourth and fifth years, five months full pay and five months half pay. After completing five years, it is six months full pay and six months half pay.

[82]It is the respondent’s practice to notify staff on sick leave when their sick pay is about to be reduced from full to half pay, and from half pay to nil pay.

[83]As a result of an administrative misunderstanding, information about the claimant’s sickness in 2018 did not reach the respondent’s payroll team. Consequently, she received full pay when not entitled to it for the entirety of her sickness absence. She should have been paid in accordance with the policy, one month’s full and one month’s half pay. Payroll was not aware that she had been on sick leave on the earlier occasion as this information was not inputted on to the respondent’s new computerised system. This error was only discovered when, in relation to the claimant’s absence in April to December 2019, she found out that her pay had been stopped and queried it. She argued that she should have been paid her full pay during her sickness absence as was the case in 2018. When this matter was referred to Ms Ansell, she decided not to ask for the claimant to repay the overpayment as it was an administrative error. The claimant received her contractual sick pay in 2019.

[84]The claimant said that she was not notified by the respondent, in accordance with its practice, that her full pay would drop from a certain date to half pay and then stop altogether. Thereafter she would only be entitled to statutory sick pay.

[85]We were taken to a photograph of a letter. The letter was sent to the claimant and dated 18 July 2019, in which it gives the dates the claimant would be entitled to full pay, half pay and statutory sick pay. It states that she would be entitled to full pay from 15 April to 14 June 2019; half pay from 15 June to 14 August 2019; and, thereafter, no pay from 15 August 2019, but would be entitled to statutory sick pay to 30 October 2019.

[86]The claimant told the Tribunal that she did not receive the letter dated 18 July 2019, setting out her entitlements until much later. We are, however, satisfied that she was informed, in good time, that her sick pay would be reduced to half and then to nil, following which her only entitlement would be to statutory sick pay.

[87]We find that the drop in pay from full pay to half pay and then to no pay was in accordance with the Trust’s policy, taking into account the claimant’s length of service with the respondent as an employee, (page 865).

[88]Accordingly, she was not unfavourably treated in respect of her claim of discrimination arising in consequence of disability. The decision was not significantly influenced by any protected acts, and was not unwanted conduct related to disability, as the respondent was following its policy and did not seek overpayment from the claimant for the earlier period of paid sickness absence. Again, these claims are not well-founded. Ms Ansell referring the claimant to Occupational Health and submitting a set of questions without the claimant’s consent – paragraph 4.1.5

[89]In paragraph 4.1.5, the claimant alleged that Ms Ansell referred her to Occupational Health and submitted a set of questions without her consent. The claimant told the Tribunal that she was referring to those matters set out in the emails on 14 and 17 June 2019. These were from Ms Ansell. On 14 June 2019, at 14:20, Ms Ansell emailed Ms Angela Rouse, Lead Nurse – Occupational Health, in which she wrote, “Hi Angela, my name is Joan Ansell and I am one of the Ward Managers on the Children’s Ward at RNOH in Stanmore. I understand that you are now the person I speak to in relation to OH matters. I am writing to you to ask your advice. I have a person who works on the Ward, who is currently off sick with some issues. She has asked me to refer her for a formal Dyslexia assessment. Please can you advise as to whether the Trust could accommodate this and what the process will be and I will advise the employee accordingly.”

[90]This email was not copied to the claimant.

[91]Ms Rouse replied on the same day, at 16:05, stating, “Hi Joan A formal Dyslexia assessment can only be made by an Educational Psychologist and there is unlikely to be one employed by RNOH and there is not one at Whittington. The British Dyslexia Society will provide information as to where the nearest Educational Psychologist who undertakes these assessments is. There would be a cost for each assessment and I would not be able to advise you as to what this would be. If you would like to have a more detailed conversation about this staff member’s particular concerns and whether I would be able to offer more general advice, I would be happy to speak with you early next week. I hope this has been of some help.”

[92]As regards the other email sent by Ms Ansell, this was on 17 June 2019, at 14:15, to Ms Rouse, in which Ms Ansell wrote, “Thanks for your prompt reply. Do you know, is there a time limit on dyslexic reports? And can a person’s diagnosis change over time?”

[93]The response from Ms Rouse was on the same day. She wrote, “Again I am not the expert but I suppose that people may become more aware of how their learning difference affects them as they take on new tasks and challenges. I would not expect their condition to change, just they may become aware of what is difficult as they encounter it. Of course a full assessment undertaken by a qualified Educational Psychologist would presumably assess all the main things associated with Dyslexia.” (838 – 840)

[94]The claimant’s concern was that Ms Ansell was enquiring about Dyslexia and the reasons for her absence being Stress at Work, Anxiety, Post Traumatic Stress Disorder symptoms and Panic attacks. She, the claimant, said that in 2018, with a different Occupational Health provider, she was advised by the Occupational Health Nurse that they were not qualified to assess her Dyslexia. She felt that Ms Ansell in asking the questions of Ms Rouse, was going behind her back and was not being transparent because Ms Ansell did not discuss the matter with her before seeking Occupational Health advice.

[95]She asserted that this was unfavourable treatment.

[96]We find that there was a change in the OH provider from 2018 to 2019. The claimant had a discussion with the previous OH provider about whether they were qualified to undertake Dyslexic Assessment of Needs. Ms Rouse was part of the new OH provider. The claimant was unaware that there were two different Occupational Health providers until this hearing. She was wrongly of the view that the reports were prepared by the same Occupational Health Advisor.

[97]In the respondent’s Supporting Staff Attendance Policy, approved on 5 September 2018, Guidance to Managers on Occupational Health Referrals, states, “Managers must undertake to discuss any OH referral with the employee including the benefits to them and gain their consent to refer them for a review.” (284)

[98]The above provision, we find, refers to a formal referral form being completed with the relevant questions to be asked of the Occupational Health Advisor. Managers must discuss the questions with the employee in order to gain that employee’s consent for a report by an Occupational Health Advisor. This is distinct from a manager asking a question. Asking a question of the Occupational Health Advisor do not come within the above policy provision.

[99]The claimant said in evidence that asking the Occupational Health Advisor the questions as to time limits on dyslexic reports and whether the person’s diagnosis could change over time, was “offensive and intruding”.

[100]It was Ms Ansell’s normal practice to speak with the claimant before making a full Occupational Health referral and the claimant would give her verbal consent. In relation to the questions she asked of Ms Rouse, it was with a view to helping the claimant. The claimant complained to Mr Dingley on 4 July 2019, about the referral and that she had been asking since 2018 for a Dyslexic Assessment of Needs. (pages 851 – 856).

[101]On 12 March 2019, Ms Ansell received an Occupational Health Report which stated that the claimant was assessed as having severe symptoms of Anxiety and Moderately Severe Depression, and that it was difficult to predict the current outlook as it was dependent on her perceived work issues being addressed to resolve her stress. It also stated that she was receiving support. We find that a month later the claimant went on longterm sickness absence from 15 April 2019 to 3 December 2019, for Anxiety, Panic attacks, Low Mood and Work-related Stress.

[102]Mr Dingley responded on 8 July to her email to explain that the Occupational Health referral had been made based on her current sickness. It was also done to understand what level of support she required and to understand whether Dyslexia could change over time, (page 857).

[103]We find that in asking the questions of Ms Rouse, Ms Ansell was performing her managerial duties she was and is required carry out in relation to someone on long-term sickness absence. The questions were intended to elicit and to determine the level of support the claimant required and for Ms Ansell to understand whether Dyslexia could change over time. These were perfectly innocuous questions, and were neither offensive, nor were they intrusive. They were designed to help the claimant and for Ms Ansell to understand more about Dyslexia. Accordingly, the Claimant was not unfavourably treated, nor did she suffer a detriment. It was not unwanted conduct, nor was it done because Ms Ansell was significantly influenced by any protects acts. These claims are not well-founded. (637, 851 – 854 and 1453). Ms D’Arcy suggesting to the claimant on 23 September 2019 and 2 February 2019 that she takes early retirement – paragraph 4.1.3.1

[104]In paragraph 4.1.3.1, the claimant alleged that she had been treated unfavourably when Ms D’Arcy suggested that she should take early retirement during the Stage 2 Long-Term Sickness Absence meeting held on 23 September 2019. We have already looked at the respondent’s policy and the procedure managers are required to follow at the Stage 2 meeting. One of the options to discuss is ill-health retirement. We find it was just a discussion and was not meant for the claimant to seriously consider ill-health retirement and indeed was not something her Union representative thought was appropriate for her at that time. The claimant was not so ill that she would come within the ill- health retirement provisions. Hence the reason why her Union representative took the view that it was not appropriate in her case. We find that the claimant was not treated unfavourably when this option was discussed. She also did not suffer a detriment, as alleged, as part of her discrimination arising in consequence of disability claim. There was no evidence that the discussion was significantly influenced by any protected acts, nor was it unwanted conduct related to disability. These claims are, therefore, not Ms D’Arcy suggesting to the claimant on 2 February 2019 that she takes early retirement – paragraph 4.1.3.2

[105]The claimant also alleged in paragraph 4.1.3.2 that she was treated unfavourably on 2 February 2021 by Ms D’Arcy. In evidence she said that also on 2 February 2021, during a telephone discussion with Ms D’Arcy, she explained her difficulties in not having the promised supportive aids and how her health and wellbeing were affected. She then said that Ms D’Arcy told her that she had a choice, she could, “… ask for early retirement if I was that unwell at work.”

[106]The claimant said she felt harassed and wanted support and help with her disabilities at work. What was promised had not been delivered and it was impacting on her performance and wellbeing.

[107]In evidence Ms D’Arcy said she did not discuss early retirement with the claimant as early retirement is a personal decision of the employee and it is not within her remit to discuss it with an employee. She would inform the employee about ill-health retirement if it was potentially relevant to their circumstances. In cross-examination she said that ill-health retirement normally applies to those who are unable to return to work on medical grounds. She refuted that she used the words “early retirement”.

[108]We find that the claimant had given a fairly selective account of the conversation with Ms D’Arcy on 2 February 2021. Precisely what the claimant said before the alleged statement was made by Ms D’Arcy is not in her witness statement and the entirety of the conversation is absent. In any event, the alleged offensive remark about ill-health was denied by Ms D’Arcy.

[109]There are two opposing accounts, and it is difficult to form a view on precisely what was said and the context in which the alleged statement was made by Ms D’Arcy. Upon the evidence, we do not accept the claimant’s account. Even if she is right, we conclude it was not unfavourable treatment as Ms D’Arcy was simply referring to one possible option available to her while on sick leave. It was not in her gift to recommend ill-health retirement, nor was it harassment related to disability to have mentioned it as an option. There was no evidence that it was significantly influenced by any protected acts. These claims are not wellNot arranging a Dyslexia assessment following the claimant’s request in November 2019 or when she subsequently requested this on several occasions –

[110]The allegation in paragraph 4.1.15 is that the respondent treated the claimant unfavourably by not arranging a Dyslexia assessment following her request in November 2019, or when she subsequently made several requests. In the Occupational Health report, dated 26 September 2019, Dr Veneta Cooney, Consultant Occupational Physician, wrote to Ms Ansell with regard to her referral letter dated 28 June 2019, that the claimant was seen and assessed on 6 September 2019. Her symptoms were such that a successful return to work for her was unlikely at that time. There was no medical reason to believe that she would not be able to return to work in some capacity within the foreseeable future. Dr Cooney was going to review her on 19 November 2019. She then wrote the following, “She had an assessment at University that confirmed her diagnosis of Dyslexia. This does not need to be repeated. Instead, what she may benefit from now would be a Dyslexia Needs Assessment. The primary aim would be to identify what specific work–based adjustments would be of assistance to her. The aim will be for her to return to work in some capacity once the Dyslexia Needs Assessment is performed and there is greater clarity about what specific workbased support would enable her to undertake her role safety and to standards required. There are several options available in terms of organising a Dyslexia Needs Assessment.”

[111]Dr Cooney then gave two options, namely that the Needs Assessment be conducted by Access to Work, and a contact number and the website address were given. The other being the British Dyslexia Association and an email address was given.

[112]The doctor further stated that the claimant would need to contact both organisations personally to arrange a convenient time and date for the assessment to be conducted. 80% of the cost would be borne by Access to Work and 20% by the employer. A cost would be incurred if the claimant wished the British Dyslexia Association to conduct the Needs Assessment. The respondent would need also to discuss cost. (1459 - 1460).

[113]On 29 November 2019, the claimant was informed that contact had been made with Access to Work to have a holistic Workplace Assessment to review whether there were any reasonable adjustments, equipment or software which could be put in place to support her Dyslexia. The Assessment would be of no cost to the respondent or to the claimant, (989).

[114]She emailed Ms D’Arcy on 29 November 2019, attaching the email from Ms Leanne Potts, Vocational Rehabilitation Consultant, at Remploy Limited, who made the contact with Access to Work. The claimant invited Ms D’Arcy to consider whether it was possible for the Trust to agree to the Assessment being carried out by Access to Work. (989).

[115]On the same day, in the afternoon, Ms Ansell replied stating that the Trust was happy to support the claimant being assessed by Access to Work. (988).

[116]The claimant was unable to attend the review with Occupational Health on 19 November as she took the decision to accompany a work colleague to a grievance meeting. She, therefore, did not meet with Dr Cooney for a review on that day.

[117]The Dyslexic Needs Assessment was carried out by Access to Work on 16 January 2020. It is a detailed report covering 14 pages. It considered the claimant’s medical history and diagnosis of Dyslexia, her work and her sickness absence. It made several recommendations, such as, half day a Assistive software training for Texthelp Read; Global Autocorrect; two half day Assistive software training for Global Autocorrect Software; C-Pen Reader; Plantronics Blackware; Binaural Headset; Health-V Mouse rest; then a two-hour workplace strategy coaching session; and disability awareness support in the workplace. The cost of these was approved the following day. (1006 – 1019 and 1020 – 1021).

[118]We find that there was no undue delay in the assessment being conducted once the information was given by Dr Cooney in the Occupational Health report and pursued by the claimant who contacted Access to Work. She asked the respondent to consider an Assessment by Access to Work on 29 November and this was responded to in the affirmative on that day in the afternoon. Some seven weeks later a report was prepared, notwithstanding Christmas intervening.

[119]We have come to the conclusion that the claimant had not been unfavourably treated as matters were set in motion as soon as she requested the Assessment to be conducted by Access to Work. Further, she had not been harassed in the way this matter was dealt with by the respondent as we find that there was no evidence of unwanted conduct related to disability, and no evidence that her alleged treatment was in any way influenced, significantly or otherwise, by the protected acts. These claims are not well-founded. In around 6 August 2020, in an email to Jo Ansell, the claimant’s manager, Mrs Gami, made the remark that “she said she cannot understand.” – paragraph 4.1.10

[120]The claimant alleged, in paragraph 4.1.10, as unfavourable treatment, that in or around 6 August 2020, in an email to Ms Ansell, Mrs Gami made the remark that, “she said she cannot understand”

[121]This being a reference to the claimant. The claimant emailed Ms Ansell raising a number of issues she was unclear about. Ms Ansell referred those matters to Mrs Gami for her response. In respect of one of the questions raised by Ms Ansell to Ms Gami, namely “Can I please enquire as to why Lucia was taken off the Ward Clerk email?”

[122]Mrs Gami’s response was, “As per our agreement all emails were copied to Jo and Kayleigh until I start managing her. Tara is updating her with new changes on the Ward as according to Lucia she is unable to understand and remember these changes. If you want me to add her with Ward Clerk Group I do not have any problems. But Tara would not be available instantly to explain to her each and every email received.”

[123]It is that email response by Mrs Gami on 7 August 2020 the claimant took exception to. She claimed that it was unfavourable treatment, harassment and victimisation.

[124]We heard from Mrs Gami whose evidence we have accepted. She told the Tribunal there was no intention of putting the claimant down. She was told by a Ward Clerk that they had to explain why certain changes occurred relevant to her work and that the claimant did not have the understanding which Mrs Gami gathered from meetings with her and in discussions about her Dyslexia. The claimant had said that things took time for her to understand. This was why Mrs Gami asked Tara, an Atrium Ward Clerk, on the Bank, to help the claimant, but Tara was unable to assist every day to explain the contents of emails to her. It was in that context that Mrs Gami stated that the claimant was unable to understand and/or could not remember the changes. This was a fact Mrs Gami addressed by instructing Tara to explain work changes to the claimant. It was not meant to be offensive and indeed, Mrs Gami apologised to the claimant if she took it that way.

[125]In making the statement, Mrs Gami was giving a factual account of the claimant’s difficulties in understanding the changes at work. It was not unfavourable treatment, nor was it a detriment to her. It was in the context of the difficulties the claimant was experiencing in understanding the changes at work. We, however, noted that in the claimant’s response to Mrs Gami’s reply to Ms Ansell’s email, sent on 7 August 2020 to Ms Ansell, she, the claimant, wrote about Tara updating her on the new changes, “These are new changes which I found instructions a bit confusing and I was not the only one as per Genivieve email asking for clarification.” (page 1085)

[126]Although the statement was related the claimant’s disability, in particular her Dyslexia, it was neither unwanted conduct as Mrs Gami was entitled to make the statement as the claimant’s manager based on her observations of the claimant and the information she received from Tara, nor did it have the purpose or effect of violating her dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment.

[127]The grievances do amount to protected acts but the statement by Mrs Gami was not significantly influenced by those acts as she was explaining why the claimant was having difficulties in understanding changes at work.

[128]It follows from the above that the claimant’s claims or discrimination arising in consequence of disability, harassment related to disability, and victimisation, in reliance upon the statement by Mrs Gami, are not wellOn 25 November 2020, Ms Ansell wrote that no phased return to work was needed - paragraph 4.1.14

[129]In paragraph 4.1.14, the claimant alleged that on 25 November 2020, Ms Ansell wrote that no phased return to work was needed. It had not been challenged that after a period of 28 consecutive calendar days sickness absence, the employee is considered to be on long-term sickness absence. In the claimant’s case she was absent from work due to sickness from 28 October 2020 to 4 December 2020 and had been absent earlier from 1 September to 13 September 2020. (page 1288).

[130]She had contracted Covid-19 in October 2020 and was advised to isolate for ten days.

[131]Ms Ansell, in her Occupational Health management referral, dated 20 November 2020, invited the Occupational Health Advisor to provide any diagnoses and opinion on the claimant’s fitness for work.

[132]Further questions were asked of the Advisor, namely whether the ill-health absence was work-related; were the absences likely to increase or decrease or remain stable; do any temporary or permanent restrictions apply and for how long; was the Equality Act 2010 likely to apply and, if so, what adjustments should be considered; was performance significantly affected by ill-health and for how long was this likely to continue; was the claimant fit to continue in her current post; and should ill-health retirement be considered? Her current Fit Note covering the period from 28 October 2020, was due to expire on 30 November 2020. Ms Ansell then wrote, “She has been advised by her GP to have a phased return to work. In my opinion there is no phased return assessment required.”

[133]Further down the form Ms Ansell wrote that she had been advised by the Track and Trace Team to have a phased return-to-work, but in her opinion there was no phased return assessment required. (1488 – 1490).

[134]Ms Rouse, who assessed the claimant and provided a report, recommended a phased return-to-work, over four weeks, with the claimant increasing her hours: week one 50%, week two 60%, week three 75%, and to return to her regular hours from week four. She could return to work on 7 December 2020, and that she was making efforts to manage and improve her attendance. She may need short beaks of five minutes should she feel panicky during the working day. As she had ongoing health issues for over a year, including Anxiety and Ankle pain impacting on her mobility and pain levels, these affected her day-to-day activities, and she was covered under the Equality Act 2010, as a disabled person. Her performance would improve on recommendations by Access to Work taking effect. In relation to adjustments, she was fit to continue in her current post, but was unlikely to meet the criteria for ill-health retirement which was something she was not considering. (1491 – 1493).

[135]Although the referral form was dated 20 November 2020, it was in fact sent on 25 November 2020.

[136]We find that Ms Ansell took Human Resources’ advice in making the Occupational Health referral. By the date of the referral, Long Covid was not in the public’s consciousness as a possible long-term illness. It was Ms Ansell’s view that a phased return was not necessary having regard to Trust’s Supporting Staff Attendance Policy. She made the referral on 20 November 2020, but the claimant had not by that stage been absent continuously for 28 calendar days. It had not been the respondent’s practice at the time to have phased returns in Covid cases. In any event, Ms Rouse recommended a phased return in the claimant’s case.

[137]The claimant relies on paragraph 4.1.14 as unfavourable treatment as she had been discriminated for something arising in consequence of disability, harassed because of disability, and victimised. Ms Ansel took advice from Human Resources. In Covid-19 cases, there was no provision for a phased return-to-work. By the date of the referral, 20 November 2020, the claimant had not been continuously absent for 28 days. Ms Rouse in any event recommended a phased return-to-work. The claimant was not unfavourably treated.

[138]Although it may be considered that expressing a view that a phased return-to-work was not required, amounted to unwanted conduct, we conclude that it was neither the purpose nor the effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, as Ms Ansell was relying on advice from Human Resources and the claimant did not have, at the time, 28 days’ continuous sick leave.

[139]The grievances do amount to protected acts but the statement by Ms Ansell was not significantly influenced by those acts as she was explaining why a phased return-to-work was not required.

[140]Accordingly, we find that the claimant was neither unfavourably treated, nor was she harassed, or victimised. These claims are not well-founded. In January 2021, not providing the claimant with a small Christmas present –

[141]The claimant alleged in paragraph 4.1.8, that she was treated unfavourably in January 2021, in that, she was not given a Christmas present. In evidence she did not pursue this claim with any degree of vigour. What Ms Hoey told us was not challenged and her account we do accept. She told the Tribunal that the respondent provides presents to staff. Various gifts had been donated to the Ward from the parents of the patients which were shared amongst staff. They were put in gift bags for each staff member, including the claimant. They expected the individuals to take their own bags with their names on, but the claimant did not inform them, at the time, that her bag went missing. Had she done so, they would have prepared a further gift bag for her.

[142]We find that there is no evidence that the respondent failed to prepare a gift bag for the claimant. Further, there was no evidence of unfavourable treatment as a gift bag was prepared for her. Nor was there any evidence that she had been harassed for a reason related to her disability by not being provided with a gift bag in January 2021.

[143]It is unclear against whom the victimisation claim in respect of this matter is made. A particular individual was not identified by the claimant who had knowledge of her protected acts and who could be said to have been significantly influenced in not providing her with a gift bag because of those protected acts. Accordingly, these claims are not well-founded. A delay to dealing with her grievance submitted on 25 March 2021 – paragraph 4.1.1

[144]Allied to paragraph 4.2.1.10 is paragraph 4.1.1 in which the claimant claimed that there was a delay in dealing with her third Grievance submitted on 23 March 2021 which is an allegation of unfavourable treatment.

[145]In the respondent’s Grievance Procedure, an employee must raise a grievance with their line manager within three months from the date of the event complained of. The line manager should meet with the employee within seven calendar days. This would be an informal meeting during which the Manager may discuss mediation before moving on to the more formal stage. The Manager at the formal grievance meeting should consider whether an investigation is required. There is no time frame in which an investigator is required to be appointed, (pages 261 – 262).

[146]The claimant’s third grievance was brought to the attention of the Trust’s Chief Executive, Mr Paul Fish, who was aware that there had been a number of interventions in relation to it. She did not want Mr Dingley to deal with her email correspondence in view of the fact that he was one of the subjects in her grievance complaint.

[147]Although she may not have been aware, but Ms Julie-Ann Dowie, Deputy Chief Nurse, who was Ms Kehoe’s line manager, was initially identified to investigate the grievance. Ms Dowie asked the claimant to complete a resolution form setting out her grievance. She later became aware that some of those identified by the claimant in her grievance, she linemanaged and was, therefore, in a conflict situation because of the issue of impartiality. Further, she was due to retire and could not undertake the investigation in any event.

[148]On 11 May 2021, Mr John Bateson, Deputy Director of Strategy and Improvement, was instructed by Ms Lauran Bevan, Chief People Officer, to carry out the investigation. He was considered appropriate as he had the right level of seniority and was suitably impartial to investigate the claimant’s complaints. From the date of the claimant’s grievance to his appointment, was seven weeks.

[149]The claimant told the Tribunal that she had no concerns about the way in which Mr Bateson conducted the investigation, and we have borne that in mind.

[150]We find that she had not been treated unfavourably. The respondent was trying to get someone who could be considered as being impartial having regard to the detailed nature of the claimant’s grievance and the concerns she raised about the conduct of named individuals. Initially, Ms Dowie was considered but later for the reasons already given, she was not considered suitable to conduct the investigation. It is unclear what the detriment the claimant suffered from there being a slight delay in starting the investigation.

[151]It was not unfavourable treatment of the claimant, the delay of 7 weeks as the respondent was anxious to appoint someone impartial to conduct the grievance. The claimant was kept informed by Mr Bateson on the progress of the investigation.

[152]There was no evidence of the delay in the appointment constituting harassment related to disability. There was no unwanted conduct because the respondent was trying to find someone who could be considered impartial, namely Mr Bateson.

[153]There was no evidence given that either Ms Bevan or the person who decided to appoint Mr Bateson, was significantly influenced by any protected acts in doing so.

[154]The claims here are not well-founded.

[155]There are further matters which fall under discrimination arising in consequence of disability, harassment related to disability, and victimisation, which not all have specific dates. They are set out below. Lack of support by management of her reasonable adjustments - paragraph 4.1.2

[156]Failure to make reasonable adjustments claims do not form part of the claims before us. When the claimant was interviewed for the permanent position, she said that she did not need any support with her Dyslexia. She had been on long-term sickness absence due to Stress at Work and Anxiety. She was assessed by Ms D Warburton, OH Advisor, and a report was prepared dated 13 September 2018. She was not considered as disabled at that time because her condition was unlikely to last for more than 12 months, and that once her workplace issues were resolved her symptoms were likely to be alleviated. No reasonable adjustments were recommended. (1434 - 1435)

[157]In Ms Warburton’s earlier report dated 11 May 2018, dealing with the claimant’s fatigue, she stressed that the claimant would benefit from a phased return-to-work over 4 weeks, and that she did not satisfy the provisions of the Equality Act as a disabled person, (pages 1429 – 1430)

[158]Recommendations were made, however, when the claimant was absent from work from 15 April to 3 December 2019. (pages 1459 - 1460).

[159]In light of the above, if the claimant is claiming discrimination arising in consequence of disability, harassment related to disability, and victimisation, these have not been made out on the evidence and are not Not having a member of staff to share the workload as allocated by Mrs Gami on roster – paragraph 4.1.2.1.

[160]From May 2020 to April 2021, the claimant alleged that Mrs Gami who would prepare the roster in advance, did not subsequently change it to reflect how the work was actually carried out by staff, including the claimant. The roster was not a record of what staff had done but was to let them know in advance what they would be doing, however, it may change depending on events, such as, staff on sick leave or there is a personal or family emergency. The period in question covered the Covid-19 pandemic when management had to deal with the enormous pressures on the service. The Atrium Ward Clerks assisted the claimant but were called away because of business needs as they were required elsewhere.

[161]The claimant produced no evidence that Mrs Gami was manipulating the roster to her disadvantage. We find that, where possible, Mrs Gami and the Ward Managers would allocate someone who would assist the claimant, but this was not always possible as they were operating at the height of the Covid pandemic with huge demands on the service. It was not treating the claimant unfavourably because of something arising in consequence of disability. Further, there was no evidence that in providing assistance as and when possible, amounted to unwanted conduct related to the claimant’s disability. In addition, the claimant had not established that it was because she made protected acts. The claims are not well-founded. Being picked on for not completing tasks – paragraph 4.1.2.2

[162]Ms Ansell asked the claimant in an email dated 27 December 2019, to check that there was enough stock before going on annual leave. The claimant responded on 14 January 2020, saying that she would do so as she had been doing when working full-time hours, (page 1004)

[163]In or around August 2020, Mrs Gami asked her to move an appointment.

[164]These the claimant contended were acts of Mrs Gami picking on her. We disagree. These were nothing more than reasonable management instructions. We also take into account that Mrs Gami and the claimant’s managers, were aware of her Dyslexia and the issues it gave rise to. She had auxiliary aids to assist in her work, and where the workload was heavy, it was shared out leaving her with a reasonable amount to cope with. At no point did management invoke the disciplinary procedure because of her performance issues.

[165]She was not treated unfavourably, nor did the above instructions amount to unwanted conduct related to disability. The instructions given by Mrs Gami were also not significantly influenced in any way by the protected acts. These claims are not well-founded. Moving and wanting to remove my locked cabinet from reception where all my dyslexic aids were kept – paragraph 4.1.2.3

[166]A lockable pedestal cabinet was kept under the reception desk to the left of the Ward Clerk’s chair. It did not belong to the claimant but was for the Clerk’s use. The claimant moved the cabinet to the back wall to give her more space to move her feet as she was experiencing pains in her ankles. This caused a problem for the other Ward Clerks and family members of patients when going to press the door release button at the end of the reception counter. They would have to overextend themselves as the cabinet would be in the way. We find that a pregnant Ward Clerk found it difficult reaching the button. Staff and a member of the public had injured themselves in doing so. To avoid this staff would move the cabinet back under the desk. It was a health and safety concern keeping the cabinet where the claimant wanted it.

[167]Managers, aware of the claimant’s circumstances, wanted to find a solution. After the presentation of the claim form and during the investigation of her third grievance, Mr Bateson asked the claimant what she wanted as a resolution. Her response was to say a small lockable cabinet for her auxiliary aids. (1274)

[168]In her claim form she only complains about the cabinet being moved.

[169]When a lockable cabinet had not been identified, she was told to either store her valuable items in her work locker in the staff room area or take them home. We were told that a slimline cabinet was made available for her use.

[170]The above is an allegation in support of the claimant’s discrimination arising in consequence of disability, harassment related to disability, and victimisation. Her ankle pain is not relied on as a disability in this case.

[171]Moving the cabinet from the back of the reception desk was done as it was a health and safety issue to keep it there because staff and relatives of patients were being injured. It was not unfavourable treatment as the respondent had to have regard for the health and safety of its staff and patients’ family members. There was no evidence that the moving of the cabinet was in any way significantly influenced by the protected acts. It was not unwanted conduct because the respondent had a duty to act in order to protect the health and safety of others. In the end the issue was resolved as the claimant was provided with a slimline cabinet. These claims under this act complained of are not well-founded. Having no prompt return to work meetings/handovers by Ward Managers – paragraph 4.1.2.4

[172]Handovers are between Ward Clerks and not with a Ward Manager. Between her first and second claims, the claimant had four spells of sickness absence. In relation to return-to-work meetings, this was discussed at the Stage 2 Long-Term Sickness Absence meeting on 24 September 2019, and on 2 December 2019. Following her Covid-19 sickness absence, she did not complain about her return-to-work meetings. With regard to the period from 28 October to 4 December 2020, a return-to-work meeting was held on 14 December 2020, during her phased return. The delay was to do with managers spending time coping with the effects of the Covid-19 pandemic. This was not unfavourable treatment. There were severe pressures on managers’ time. The delay was not unwanted conduct related to the claimant’s disabilities, nor was it because of any protected acts. These claims, based on the acts complained of, are not well-founded. Lack of recommended Dyslexia supportive aids to work with for almost a year – paragraph 4.1.2.5

[173]Access to Work recommended that the claimant be provided with a Pen and Headset, as well as training on Assistive software, including Read/Write to help with her Dyslexia. At the time of the assessment the claimant had use of the Read/Write software.

[174]She was due to meet with Mr Ansell and Ms Hoey to progress the recommendations which they agreed to. Thereafter, she would go back to Access to Work by 17 February 2020. The delay in providing some of the equipment was due to having to cope with the Covid-19 pandemic. This was explained to the claimant, who did not object as the respondent intended to address the issue of the recommendations once circumstances improved. Ms D’Arcy emailed her on 9 April 2020, at 08:25, in response to her enquiry about when she would receive the support Access to Work was recommending: “Hi Lucia, In regard to the recommendations made by Access to Work, there will be a delay in getting the equipment installed due to the Covid Crisis. Jo was in the process of ordering the equipment with advise from IT, however this has now been put on hold. Once the Trust is back to normal working the recommendations will be picked up, along with any other issues you may have. Apologies for the inconvenience.” (1054).

[175]The claimant replied 26 minutes later, in which she wrote, “…I did raise the issue again yesterday, with ward manager Jo, for some feedback and to know where I stood but I can perfectly understand that the Covid 19 crisis takes priority for all our sakes. On the same note health/wellbeing is also a priority, in this unprecedented times, thus I think it is important for my mental wellbeing not begin working with lead ward clerk before the training which was promised both for myself/management takes place.” (1053)

[176]Further items of equipment were ordered which had to go through the procurement process and IT, and this resulted in further delay.

[177]We agree with Mr Jones that the delay was not intended to set the claimant up to fail, nor was it significantly influenced at all by her protected acts. It was also not unwanted conduct related to disability but at having to cope with the effects of the pandemic, and once eased, procurement was engaged.

[178]The delay is unfavourable treatment, however, it did not arise in consequence of the claimant’s disability but due to the effects of Covid.

[179]These claims, based on the acts complained of, are not well-founded. Support meetings became intermittent in early 2020 and stopped in mid-2020 – paragraph 4.1.2.7

[180]The claimant said that regular support meetings stopped from March 2020. This was at the start of the Covid-19 pandemic and managers had to cope with staff being on leave, on sick leave, or having contracted Covid. Ms Hoey and other members of her team were shielding. A lot of staff members were working from home which meant that it took longer to contact them. Staff were calling in cancelling their shifts for fear of contracting Covid. Some staff were sent to adult wards by Ms Ansell to sit with patients who were dying. Some were emotionally vulnerable. Staff shortage affected the frequency of support meetings with the claimant. No disciplinary action was taken in respect of issues with her work. Not having frequent support meetings was not unwanted conduct related to disability as it was due to the effects of Covid, nor was it unfavourable treatment because of something arising in consequence of disability. It was also not significantly influenced by any protected acts. These claims based, on the acts complained of, are not well-founded. Not providing handovers to the claimant on her return to work following annual leave or sick leave – paragraph 4.1.11

[181]We repeat our findings and conclusion in paragraphs 172 and 180, here. The claims are not well-founded. HR not acknowledging the claimant’s difficulties encountered with Ms Gami –

[182]We find that the respondent’s human resources did acknowledge that the claimant raised concerns she had about Mrs Gami. They facilitated the claimant’s first grievance which was addressed through mediation by Ms Karen Parker-Ford, Senior HR Advisor, but was not successful. They facilitated a change in the claimant’s line management from Mrs Gami to Ms Ansell and Ms Hoey. Ms Parker-Ford also facilitated the investigation into the claimant’s second grievance conducted by Ms Lorraine Papapavlou, Lead Nurse-Critical Care, in May 2019, and the Long-Term Sickness Absence process. HR put into effect the three grievance processes and were interviewed as part of the third grievance investigation. Ms Ruth Henderson, HR Business Partner, was present at the claimant’s meeting with Mr Bateson during the investigation into the third grievance on 18 June 2021.

[183]We find that Ms Parker-Ford, Ms D’Arcy, and Mr Stephen Dingley, HR Business Partner, were aware of the claimant’s grievances and also her concerns about Mrs Gami. There is no evidence to substantiate the allegation in paragraph 4.1.12. Accordingly, the claims based on the act complained of, are not well-founded. HR Refusing for the claimant to undertake re-deployment – paragraph 4.1.13

[184]We find that on 10 July 209, at the grievance outcome meeting, the claimant suggested that she would like a position where she was not working with Mrs Gami. This was followed up by Ms Clare Kehoe, Divisional Head of Nursing, in her outcome letter dated 19 July 2019. She stated that as the claimant was on sick leave, if a return-to-work date could be given within the following weeks, supported by medical evidence, the re-deployment process could commence. (869-870)

[185]During the Stage 2 Long-Term Sickness Absence meeting the claimant said that she was reluctant to take up re-deployment options because of her Dyslexia but would consider another Ward Clerk vacancy not reporting to Mrs Gami. It was decided that it would be considered following the Occupational Health report. (958)

[186]After returning from long-term sick leave in December 2019, in March 2020, the claimant sent a completed re-deployment form to Ms D’Arcy who forwarded it to Ms Ansell on 18 March 2020. The claimant was looking for a position at either Band 3 or 4 in the administrative or secretarial fields. She wrote that she was unable to stand for long periods and could not walk at a fast pace for more than 10 to 15 minutes. (1059-1060)

[187]Ms D’Arcy responded on 14 April 2020, stating that as she was considered fit to carry out her role as Ward Clerk, re-deployment was not suitable because she had returned to work and was undertaking her role in accordance with OH advice. (1059)

[188]The claimant replied on the same day stating that she was confused as Ms D’Arcy had previously offered her re-deployment and believed that it was always available to her having regard to her medical conditions. (1134)

[189]Ms D’Arcy’s response was sent 17 minutes later in which she referred the claimant to the respondent’s Supporting Staff Attendance, in particular, the Stage 2 Review Meeting, on page 28. She explained that the reason why re-deployment was suggested as a potential outcome was that the claimant was on long-term sickness absence. It was an option to be considered at the time in line with the policy. (1057)

[190]We find that re-deployment was considered as an option as part of the claimant’s grievance outcome and during her sickness absence meetings. Since then she stated that she did not want to be re-deployed and subsequently returned to work and was able to perform her role. It was neither appropriate nor necessary to move her at that stage.

[191]We have come to the conclusion that the refusal to offer the claimant redeployment in March 2020 was not because of any protected acts. In fact, when re-deployment was considered in 2019, she had made protected acts, and it was considered because of her sickness absence being longterm. The refusal was also not unwanted conduct because it was the respondent applying its policy which was not related to the claimant’s disabilities. It was not unfavourable treatment because of something arising in consequence of disability, although we were not sure what was the something arising.

[192]The claims, based on the act complained of, are not well-founded. Out of time

[193]The claim form was presented on 6 May 2021. ACAS conciliation was from 26 April to 30 April 2021. Paragraphs 4.1.1; 4.1.2.1; 4.1.2.3; 4.1.3.2; and 4.1.8 are in time. The rest of the paragraphs concerns acts which are out of time. In respect of her first claim, the claimant was aware of the time limits. In respect of this instant claim, Hoffman-Bookai Solicitors came on the record as her legal representatives, on 13 October 2020. They came off record on 2 June 2022. (26, 76)

[194]As the claims rely on the acts of the claimant’s line managers, the Lead Ward Clerk, and human resources, they all form part of a course of conduct or continuing act, with the last being in time. Her solicitors only represented her for a short while, for 8 months. Our conclusion here is subject to the application of the Henderson v Henderson principles on issue estoppel which takes precedence. Submissions

[195]In arriving at our findings and conclusions above, we took into the claimant’s and Mr Jones’ written and oral submissions which we do not repeat herein having regard to rule 62(5) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended.

[196]We also took into account the cases they have referred us to.

The law

[197]Harassment is defined in section 26 EqA as; “26 Harassment (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating and intimidating, hostile, degrading, humiliating or offensive environment for B”

[198]In deciding whether the conduct has the particular effect, regard must be had to the perception of B; other circumstances of the case; and whether it is reasonable for the conduct to have that effect, section 26(4).

[199]In this regard guidance has been given by Underhill P, as he then was, in case of Richmond Pharmacology v Dhaliwal

[2009] ICR 724

, set out the approach to adopt when considering a harassment claim although it was with reference to section 3A(1) Race Relations Act 1976. The EAT held that the claimant had to show that:(1) the respondent had engaged in unwanted conduct;

(2) the conduct had the purpose or effect of violating his or her dignity or of creating an adverse environment;

(3) the conduct was on one of the prohibited grounds;

(4) a respondent might be liable on the basis that the effect of his conduct had produced the proscribed consequences even if that was not his purpose, however, the respondent should not be held liable merely because his conduct had the effect of producing a proscribed consequence, unless it was also reasonable, adopting an objective test, for that consequence to have occurred; and

(5) it was for the tribunal to make a factual assessment, having regard to all the relevant circumstances, including the context of the conduct in question, as to whether it was reasonable for the claimant to have felt that their dignity had been violated, or an adverse environment created.

[200]Whether the conduct relates to disability “will require consideration of the mental processes of the putative harasser”, Underhill LJ, GMB v Henderson

[2016] EWCA Civ 1049

[201]As regards victimisation, section 27 EqA states; “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.”

[202]For there to be unlawful victimisation the protected act must have a significant influence on the employer’s decision making, Nagarajan v London Regional Transport [1981] IRLR, Lord Nicholls. In determining whether the employee was subjected to a detriment because of doing a protected act, the test is whether the doing of the protected act had a significant influence on the outcome, Underhill J, in Martin v Devonshire Solicitors [2011] ICR EAT, applying the dictum of Lord Nicholls in Nagarajan

[203]In relation to discrimination arising in consequence of disability, section 15 provides, "(1) A person(a) (A) discriminates against a disabled person

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

[204]In paragraph 5.7, Equality and Human Rights Commission Code of Practice on Employment (2011), unfavourable treatment means being put at a disadvantage. This will include, for example, having been refused a job; denied a work opportunity; and dismissal from employment, paragraph 5.7.

[205]In paragraph 4.9 it states the following, “ ‘Disadvantage’ is not defined by the Act. It could include denial of an opportunity of choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, was something that a reasonable person would complain about - so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker could reasonably say that they would have preferred to be treated differently.”

[206]In the case of Pnaiser v NHS England

[2016] IRLR 170

, the EAT, Mrs Justice Simler DBE, held that the “something” that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant or more than trivial, influence on the unfavourable treatment and amount to an effective reason for, or cause of it. A Tribunal should not fall into the trap of substituting motive for causation in deciding whether the burden has shifted. A Tribunal must, first, identify whether there was unfavourable treatment and by whom in the respects relied on by the claimant. Secondly, the Tribunal must determine what caused the treatment or what was the reason for it. An examination of the conscious and unconscious thought processes of the alleged discriminator will be required. Thirdly, motive is irrelevant as the focus is on the reason or cause of the treatment of the claimant. Fourthly, whether the reason or cause of it was something arising in consequence of the claimant’s disability. The causation test is an objective question and does not depend on the thought processes of the alleged discriminator. Fifthly, the knowledge required in section 15(2) is of the disability.

[207]A similar approach was taken in the case of City of York Council v Grosset

UKEAT/0015/16

relying on the guidance in Basildon and Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

, Langstaff P.

[208]In determining justification, a Tribunal is required to make its own judgment as to whether, on a fair and detailed analysis of working practices and business considerations involved, a discriminatory practice was reasonably necessary and not apply a range of reasonable responses approach, Hardy & Hansons plc v Lax

[2005] ICR 1565

[209]We have taken into account section 123 on time limits and the cases of the Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

, a judgment of the Court of Appeal, Mummery LJ, paragraph 52, and British Coal Corporation v Keeble

[1997] IRLR 336

[210]On the burden of proof we have taken into account section 136 and the judgment in the Supreme Court in the case of Royal Mail Group v Efobi

[2021] UKSC 33

, Lord Leggatt giving the leading judgment.

[211]We found the List of Issues confusing. It was difficult to discern the “something arising” as the language is more akin to protected acts in a victimisation claim. In trying not to put the claimant at a disadvantage, we considered all of the issues listed as supporting her three claims of discrimination arising in consequence of disability, harassment related to disability, and victimisation. We applied the judgment of Lady Simler in the case of Pnaisner in considering discrimination arising in consequence of disability as well as the other cases referred to above; Dhaliwal in our approach to harassment related to disability; and Lord Nicholls in Nagarajan when considering the victimisation claims.

[212]As we have found against the claimant in respect of all claims, the provisional remedy hearing listed on 25 September 2024, for one day, in person, is now hereby vacated.