Mrs J Davies v Oxford Health NHS Foundation Trust: 3311765/2024

EMPLOYMENT TRIBUNALS

Case No 3311765/2024

Between

Mrs J DaviesClaimant

Oxford Health NHS Foundation TrustRespondent

Before

Employment Judge Reindorf KC

Date 2 April 2026

JUDGMENT

[1]The claims for direct disability discrimination, discrimination arising from disability, harassment related to disability and victimisation fail and are dismissed.

REASONS

INTRODUCTION .............................................................................................................................. 2 THE HEARING ................................................................................................................................. 2 THE ISSUES .................................................................................................................................... 3 FINDINGS OF FACT ........................................................................................................................ 7 Credibility and reliability ................................................................................................................. 7 The beginning of the Claimant’s employment ................................................................................ 8 The Claimant’s contract and the Respondent’s policies ................................................................ 8 The Claimant’s working practices and arrangements 2021—2024 ............................................. 11 The events of September—December 2024 ............................................................................... 15 RELEVANT LAW ........................................................................................................................... 21 Direct disability discrimination: s.13 EqA ..................................................................................... 21 1 of 31 Discrimination arising from disability: s.15 EqA ........................................................................... 23 Harassment: s.26 EqA................................................................................................................. 24 Victimisation: s.27 EqA ................................................................................................................ 24 CONCLUSIONS ............................................................................................................................. 25 Direct disability discrimination ..................................................................................................... 25 Discrimination arising from disability ........................................................................................... 27 Harassment related to disability .................................................................................................. 28 Victimisation ................................................................................................................................ 29

INTRODUCTION

[2]The Claimant has been employed by the Respondent as a Healthcare Assistant at Bicester Community Hospital since 25 April 2017. She remains employed in that role. She was diagnosed with breast cancer in or around December 2017. She received a terminal prognosis in or around November 2022.

[3]Following a period of ACAS Early Conciliation from 21 November to 25 November 2024, the Claimant presented her ET1 on 6 December 2024 complaining of disability discrimination and seeking “other payments”. Her claim relates to the arrangements made for her to attend medical appointments in working time and changes to her working pattern and duties. In its ET3 the Respondent denied the claims and sought Further Particulars of the Particulars of Claim.

[4]At a Preliminary Hearing on 29 October 2025, the claims were identified as direct disability discrimination contrary to s.13 of the Equality Act (“EqA”), discrimination arising from disability contrary to s.15 EqA, harassment related to disability contrary to s.26 EqA and victimisation contrary to s.27 EqA. The claim for “other payments” was not pursued.

[5]In the Case Management Agenda for the Preliminary Hearing the Claimant requested a Tagalog interpreter for the Final Hearing. It appears that this request was overlooked, and no interpreter was booked for the Final Hearing.

[6]The Respondent provided Amended Grounds of Resistance addressing the clarified claims on 4 December 2025.

THE HEARING

[7]The case came before us for a five day Final Hearing by CVP. We had a bundle of 1177 pages and a supplementary bundle of 95 pages. A further document (a contract of employment) was disclosed by the Respondent on the first day of the hearing and added to the bundle. 2 of 31

[8]The Claimant provided a witness statement on her own behalf. We had witness statements from Amos Gottardi (Ward Manager), Lorraine Drever (HR Business Partner), Aiseosa Nehiweze (Ward Manager) and Eniola Dada (Matron) for the Respondent. All the witnesses gave oral evidence and were cross-examined.

[9]The Tribunal asked whether adjustments to the hearing were required for the Claimant or any witnesses. Though no adjustments were requested, the Tribunal ensured that breaks were taken approximately every 45 minutes, since the Claimant was fatigued and undergoing chemotherapy.

[10]Shortly before 4pm on the first day of the hearing, the Claimant’s representative raised the Claimant’s prior request for an interpreter. At this point the Claimant had been under cross-examination for some two hours and was evidently tired. The Tribunal decided to finish for the day, to attempt to find an interpreter overnight, and to restart at 9am the following day to complete the Claimant’s cross-examination because she said that she found mornings more manageable than afternoons. Unfortunately no interpreter could be found overnight. The Claimant stated that she wished to continue with the hearing.

[11]On the third day of the hearing the Claimant had to attend a chemotherapy appointment. We postponed the hearing for that day in order to enable the Claimant to keep this appointment. Accordingly the evidence and submissions were heard over four days in total.

THE ISSUES

[12]The issues were set out in the Case Management Order of Employment Judge Hawksworth sent to the parties on 30 October 2025 following the Preliminary Hearing on 29 October 2025, as follows: 1. Disability 1.1 The respondent accepts that the claimant had a disability (cancer) as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about. 2. Direct disability discrimination (EqA 2010 s.13)2.1 Did the respondent do the following things:2.1.1 On 16 September 2024 in a meeting without notice Aiseosa Nehiweze required the claimant to change her terms and conditions and sign a reasonable adjustment agreement under which she would no longer be entitled to paid time off for all medical appointments without using annual leave (an arrangement that was in place since August 2021) and would instead be entitled to 3 of 31 37.5 hours paid leave for medical appointments per 12 rolling months as per the respondent’s disability leave policy

2.1.2 On 16 September 2024 in the same meeting Aiseosa Nehiweze, referring to the claimant’s chemotherapy and cancer treatments, stated ‘It had gone on for long enough’ and asked her ‘Just how long is this going to go on for?’

2.1.3 On 24 September 2024 in an email Aiseosa Nehiweze continued to pressure the claimant to sign the reasonable adjustment agreement

2.1.4 On 24 September 2024 in the same email Aiseosa Nehiweze insisted that the proposed changes were being done ‘with [the claimant’s] well-being in mind’

2.1.5 On 9 October 2024 in an email Lorraine Drever continued to insist that the claimant sign the reasonable adjustment agreement

2.1.6 On 14 October 2024 Aiseosa Nehiweze, who has responsibility for the staff rota, changed the claimant’s working hours without consultation or prior notice while the claimant was on annual leave

2.1.7 On 16 October 2024 in an email Aiseosa Nehiweze continued to insist that the claimant sign the reasonable adjustment agreement and also requested that she sign a flexible working contract

2.1.8 On 7 November 2024 in a meeting without notice Matron told the claimant that because she was not completing the full duties of a healthcare assistant, she was supernumerary and the way she was being paid was illegal

2.2 Was that less favourable treatment?

2.3 The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s.

2.4 If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated.

2.5 The claimant has not named anyone in particular who they say was treated better than they were.

2.6 If so, was it because of disability? 3. Discrimination arising from disability (EqA 2010 s.15)

3.1 Did the respondent treat the claimant unfavourably by: 4 of 313.1.1 On 16 September 2024 in a meeting without notice Aiseosa Nehiweze required the claimant to change her terms and conditions and sign a reasonable adjustment agreement under which she would no longer be entitled to paid time off for all medical appointments without using annual leave (an arrangement that was in place since August 2021) and would instead be entitled to 37.5 hours paid leave for medical appointments per 12 rolling months as per the respondent’s disability leave policy

3.1.2 On 24 September 2024 in an email Aiseosa Nehiweze continued to pressure the claimant to sign the reasonable adjustment agreement.

3.1.3 On 9 October 2024 in an email Lorraine Drever continued to insist that the claimant sign the reasonable adjustment agreement

3.1.4 On 16 October 2024 in an email Aiseosa Nehiweze continued to insist that the claimant sign the reasonable adjustment agreement and also requested that she sign a flexible working contract.

3.2 Did the following things arise in consequence of the claimant’s disability:3.2.1 Her requirement to take time off for cancer treatment;

3.2.2 Her requirement to take more than 37.5 hours time off for medical appointments in a rolling 12 month period;

3.3 Was the unfavourable treatment because of either of those things?

3.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 3.4.1 [to be confirmed in the respondent’s amended response]

3.5 The Tribunal will decide in particular:3.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

3.5.2 could something less discriminatory have been done instead;

3.5.3 how should the needs of the claimant and the respondent be balanced?

3.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? 4. Harassment related to disability (EqA 2010 s.26)

4.1 Did the respondent do the following things:4.1.1 On 16 September 2024 in a meeting Aiseosa Nehiweze, referring to the claimant’s chemotherapy and cancer treatments, stated ‘It 5 of 31 had gone on for long enough’ and asked her ‘Just how long is this going to go on for?’

4.1.2 On 24 September 2024 in the same email Aiseosa Nehiweze insisted that the proposed changes were being done ‘with [the claimant’s] well-being in mind’

4.1.3 On 27 September 2024 in an email Lorraine Drever acknowledged the situation was causing the claimant extreme stress and anxiety but offered her no support.

4.1.4 On 7 November 2024 in a meeting without notice Matron told the claimant that because she was not completing the full duties of a healthcare assistant, she was supernumerary and the way she was being paid was illegal.

4.2 If so, was that unwanted conduct?

4.3 Did it relate to disability?

4.4 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?

4.5 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. 5. Victimisation (EqA 2010 s.27)

5.1 Did the claimant do a protected act as follows:5.1.1 In an email to Aiseosa Nehiweze on 23 September 2024 the claimant complained about treatment at a meeting on 16 September 2024 and said it was ‘a clear case of discrimination due to my disability’

5.1.2 In an email to Aiseosa Nehiweze on 26 September 2024 the claimant said the proposed changes to her contract and the way she was being treated were discriminatory

5.2 Did the respondent do the following things:5.2.1 On 27 September 2024 in an email Lorraine Drever acknowledged the situation was causing the claimant extreme stress and anxiety but offered her no support.

5.2.2 On 9 October 2024 in the same email Lorraine Drever failed to respond to concerns raised by the claimant. 6 of 31

5.2.3 On 14 October 2024 Aiseosa Nehiweze, who has responsibility for the staff rota, changed the claimant’s working hours without consultation or prior notice while the claimant was on annual leave.

5.2.4 From 15 November 2024 to 20 November 2024 the respondent failed to set up an informal meeting to resolve matters and failed to reply to the claimant’s emails about the meeting which were sent on 15 November 2024, 18 November 2024 and 20 November 2024.

5.3 By doing so, did it subject the claimant to detriment?

5.4 If so, was it because the claimant did a protected act? 6. Remedy for discrimination, harassment or victimisation

6.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

6.2 What financial losses has the discrimination caused the claimant?

6.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? If not, for what period of loss should the claimant be compensated?

6.4 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

6.5 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

6.6 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

6.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Did the respondent or the claimant unreasonably fail to comply with it? If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

6.8 Should interest be awarded? How much? FINDINGS OF FACT Credibility and reliability

FINDINGS OF FACT

[13]The Tribunal found the Claimant to be a generally helpful witness who tried to tell the truth. However, her evidence was not reliable. This was because she had a poor memory of past events and tended to say what she thought was the right 7 of 31 thing to say rather than what she actually remembered. For example, she repeatedly said with considerable certainty that Jane Hudson, her manager in 2021, had changed her contract of employment on a permanent basis, but was unable to give any details about this at all. She also said that she had approved the emails sent by her husband to the Respondent on her behalf, but it was clear that she did not fully understand what was written in them and that the content of the emails was, in places, contrary to her own memory. In addition she struggled to understand some concepts. For example, she did not understand what was meant by “supernumerary” even after it was explained to her. She also did not always answer the question that was put to her.

[14]Ms Turner, the Claimant’s representative, told the Tribunal that the Claimant was suffering from a loss of cognitive capacity because her cancer had spread to her brain. Ms Turner said that the Claimant’s cognitive ability had been much better in 2024 when the relevant events occurred. This submission was not supported by evidence from the Claimant herself. In closing submissions Ms Turner produced an Oncology report dated 6 February 2026 which she said supported her proposition. The Respondent did not object to the inclusion of the report but pointed out that it said that the Claimant had made an “excellent recovery” from the symptoms of brain metastases, which had caused confusion and slurred speech in October 2025. The report said that the Claimant was “minimally wobbly but otherwise well”. The Tribunal could not conclude from the evidence presented to it that the Claimant’s cognitive capacity had deteriorated since 2024.

[15]The evidence given by Aiseosa Nehiweze, Amos Gottardi and Eniola Dada for the Respondent was credible and reliable. They all tried to help the Tribunal to understand the facts and were clear about what they remembered. Their evidence was detailed and consistent with the documentary evidence. Lorraine Drever was a less helpful witness for the Respondent. She was not untruthful, but her evidence was patchy and incomplete. However most of her evidence related to matters which were documented, and the Tribunal was able to rely on the documentary evidence.

[16]Overall, the Tribunal preferred the evidence of the Respondent’s witnesses. The beginning of the Claimant’s employment

[17]The Claimant was employed by the Respondent as a Healthcare Assistant (“HCA”) on 25 April 2017. She remains in post. She works on the ward at Bicester Community Hospital.

[18]The Claimant was diagnosed with breast cancer in 2007. She informed the Respondent of her diagnosis during her recruitment process. The Claimant’s contract and the Respondent’s policies

[19]The Respondent is unable to locate the Claimant’s written contract of employment, but produced the contract of another HCA who was employed at 8 of 31 around the same time as the Claimant. The Tribunal is satisfied that the Claimant’s contract of employment contained the same terms and conditions as the one produced by the Respondent. The terms and conditions include: 19.1. 37.5 hours of work per week (clause 8); 19.2. an annual leave year running from 1 April to 31 March, with annual leave to be taken at such times as the HCA’s manager reasonably approves (clause 9); 19.3. time off in lieu for public holidays, if they are usually worked (clause 9); 19.1. “Any variation to conditions of service will only be implemented following consultation and agreement. Any changes will be confirmed in writing” (clause 27).

[20]The Respondent has a Procedural Guidance Document for Supporting Workers with a Disability (“Procedural Guidance”). This was first introduced in April 2003. The Tribunal was shown the version approved in July 2024.

[21]Appendix 3 of the Procedural Guidance is about reasonable adjustments. It says: 21.1. There are four stages of the reasonable adjustments procedure, which includes a possible appeal and/or grievance if the employee is not content with the adjustments proposed by the Respondent. 21.1. In considering reasonable adjustments, the Respondent should consider the effectiveness of the adjustment in preventing the disadvantage and the views of the disabled person. It should also take into account a number of factors such as the financial and other costs of making the adjustment. 21.1. Examples of reasonable adjustments might include allocating some of the disabled employee’s duties to another person, altering working hours or allowing the disabled employee to be absent from work for rehabilitation, assessment or treatment. 21.2. There should be ongoing monitoring to ensure the continued effectiveness of any reasonable adjustment. 21.3. The purpose of a written Reasonable Adjustment Agreement is to ensure that both the employee and the employer have an accurate record of agreed adjustments, to minimise the need to renegotiate adjustments when the employee changes jobs or is assigned a new manager, and to provide the basis for future discussions. It should be regularly reviewed and amended as necessary. 21.4. The Reasonable Adjustment Agreement allows the employee to: “Explain the impact of your disability on you at work Suggest adjustments that will make it easier for you to do your job 9 of 31 Offer further information from your doctor, specialist or other expert Request an assessment by Occupational Health, Access to Work or another expert Review the effectiveness of the adjustments agreed Explain any change in your circumstances Be reassured that your manager knows what to do if you become unwell at work and who to contact if necessary Know how and when your manager will keep in touch with you if you are absent from work because of illness or a disability related reason” 21.5. The Reasonable Adjustment Agreement allows the manager to: “Understand how a particular employee’s disability affects them at work Explain the needs of the business or organisation Explain the organisation’s attendance and reasonable adjustment policy Recognise signs that an employee might be unwell and know what the employee wants you to do in these circumstances, including who to contact for help Know how and when to stay in touch if the employee is off sick Consider whether or not the employee needs to be referred for an assessment by an Occupational Health or another adviser to help both parties understand what adjustments are needed Review the effectiveness of the adjustments already agreed Explain any change in the employer’s circumstances”

[22]A pro forma of the Reasonable Adjustment Agreement is contained in Appendix 3 of the Procedural Guidance. It contains fields for the employee to explain the effects of his or her disability, the adjustments required, the impact of any “fluctuating” condition and details of emergency contacts. It contains fields for the line manager to describe the “keeping in touch” arrangements agreed with the employee, the topics that can be discussed while the employee is absent (such as “How you are feeling” and “What I can do to help”), topics to discuss at any return to work meetings (such as “A phased return to work” and “What to tell the team”) and the process for contacting the employee when he or she has not notified the employer of an absence.

[23]Appendix 5 of the Procedural Guidance is about “disability leave”. It says: 10 of 31 23.1. Disability leave is time off for medical appointments associated with an employee’s disability, such as hospital outpatient appointments and check-ups (paragraph3.1 ). 23.2. Disability leave is for “a reasonable fixed period of time depending on individual circumstances” (paragraph 1.6). 23.3. Disability leave does not include time off for ill health, whether connected to the disability or not (paragraph 2.2). 23.4. Disability leave does not count towards assessing performance, promotion, attendance or selection for redundancy (paragraph 3.9). 23.5. The first 37.5 hours of disability leave in a rolling 12 month period are paid, at the discretion of the employee’s line manager (paragraph

3.2 ). 23.1. More than 37.5 hours of disability leave may be paid, such as “if an employee must undergo a more prolonged period of treatment, rehabilitation, assessment or training”. An example given in the guidance is: “An employee who has cancer needs to undergo a period of treatment and rehabilitation”. Additional disability leave must be authorised by HR (paragraph

3.3 ). 23.2. The procedure for disability leave in clause 4 is: i. it should be agreed in advance with the employee’s line manager and recorded on the Reasonable Adjustment Agreement Form “or alternative documentation”; ii. if agreement cannot be reached then advice should be sought from Occupational Health and HR; iii. it should be reviewed annually; and iv. where disability leave is taken, it should be recorded using a specific code for monitoring purposes. The Claimant’s working practices and arrangements 2021—2024

[24]The Claimant reports to the Ward Manager. She has had several Ward Managers during her employment, including: 24.1. Jane Hudson (to January 2022); 24.2. Amos Gottardi (from January 2022 to December 2023); 24.3. Aiseosa Nehiweze (known as “Gold”) (from December 2023 to January 2025); 24.4. Editimi Leizou (from January 2025 to September 2025).

[25]None of these managers was aware of the Procedural Guidance. They did not know about the right to paid disability leave or the process for making reasonable 11 of 31 adjustments. Ms Nehiweze only became aware of these policies when the Claimant brought them to her attention in September 2024.

[26]The Ward Manager reports to the Matron, who at the relevant times was Eniola Dada.

[27]The standard shift pattern on the ward involves three shifts: early (from 7:30am to 3:30pm), late (12:00pm to 8:00pm) and night (7:30pm to 8:00am). Most members of staff work a mixture of shifts.

[28]During the Claimant’s employment she has had to undergo chemotherapy and radiotherapy and attend other medical appointments.

[29]The Claimant says that in August 2021, Ms Hudson agreed verbally to change her terms and conditions of employment on a permanent, contractual basis. The new terms and conditions she says Ms Hudson agreed were: 29.1. Paid time off for all appointments including chemotherapy treatments, recovery time without the need to use annual leave or sick leave. 29.2. Paid time off when she was sent home / told not to attend work due to a Covid-19 outbreak on the ward, without the need for her to use annual leave. 29.3. Hours of work Monday to Friday 9:30am to 5:30pm with half an hour (unpaid) lunch, totalling 37.5 hours per week. 29.4. No requirement to work Bank Holidays or weekends. 29.5. Additional breaks when required during the day with no impact on pay, annual leave or working hours. 29.6. Avoiding moving and handling / transfer of heavy or bariatric patients.

[30]The Tribunal does not accept that Ms Hudson agreed to make a formal and permanent change to the Claimant’s contract of employment containing these terms and conditions. The Tribunal finds that similar (but not identical) working practices were put into place for the Claimant as reasonable adjustments. These changes happened over a period of time and in a relatively informal manner. Additionally, because the Claimant could not move or handle heavy or bariatric patients, she was designated as a supernumerary member of staff on the ward. This meant that she was not counted as one of the minimum number of workers that are required to be present on the ward to satisfy the Respondent’s legal duties.

[31]The Tribunal concluded that the arrangements put into place as reasonable adjustments for the Claimant over time were, as relevant: 31.1. That she would work from 9:30am to 5:30pm on weekdays. 31.2. That she would undertake light duties. 31.3. That she would be supernumerary on the ward. 12 of 31 31.4. That she would take annual leave when she needed to attend medical appointments in working time.

[32]In reaching the conclusion that Ms Hudson did not agree to make a permanent change to the Claimant’s contract of employment the Tribunal has had regard to the fact that the new terms and conditions were not recorded in writing. The Tribunal took into account the fact that we did not hear evidence from Ms Hudson. Nonetheless we considered it more likely than not that if Ms Hudson had said she was making a permanent change to the Claimant’s contract of employment, she would have put it in writing. The only relevant documentary evidence we were shown was an Occupational Health referral made by Ms Hudson on 5 November 2021. The referral said that the Claimant was “currently on light duties only”. It went on: “She struggles with her mental health if she cannot come to work so I have devised a list of light duties for the time she is at work. Her treatment is every 3 weeks and she needs a week off post treatment. She is supernumerary and only at work to support her mental health. She does not go in to amber patient rooms and will stay at home if we get suspected or COVID positive patients. I just wanted you to be aware.”

[33]The Tribunal did not consider this referral to amount to evidence of a contractual change. Rather, it was evidence of a set of adjustments made by Ms Hudson to accommodate the Claimant whilst she remained able to come to work. It appears that at that time Ms Hudson anticipated that the Claimant would become unfit to work at some stage in the relatively near future. The Claimant had been allocated as a supernumerary member of staff a month previously, on 4 October 2021.

[34]Furthermore the Tribunal did not think that the Claimant’s account of the agreement she said she had reached with Ms Hudson in August 2021 was reliable. The Claimant did not give any details of the conversation or meeting in which the agreement was said to have been reached. Her memory of past conversations was generally very vague, and the Tribunal thought it was highly unlikely that she would recall with such certainty that in a conversation in 2021 Ms Hudson had referred to a “contract change” rather than an “adjustment” or similar. The emails the Claimant sent when she first raised issues about disability leave in September 2024 do not clearly refer to any permanent contractual agreement that she had made with Ms Hudson. Instead, they refer to a number of different reasons for her request for paid time off for appointments: a verbal “local agreement” made with a “previous employer”, a precedent set by the Respondent, “custom and practice”, the Respondent’s policy and reasonable adjustments. In the Claimant’s email to Ms Nehiweze on 11 September 2024 she did not refer to her contract or an agreement at all.

[35]In addition, in several respects the Claimant did not work to the terms and conditions she said she had agreed with Ms Hudson in August 2021. For example: 13 of 31 35.1. The Claimant continued to work some weekend and Bank Holiday shifts after August 2021. The historical ward rota showed that the Claimant had worked or been rostered to work on 13 weekend shifts between August 2021 and 26 March 2022. The rota also showed that the Claimant had worked or been rostered to work on 18 Bank Holidays between August 2021 and August 2024. The Claimant did not challenge these Bank Holiday shifts with her line managers at the time. She could not explain to the Tribunal why she had not done so. She produced some evidence to show that HR has latterly agreed that she was wrongly recorded as having worked on three Bank Holidays in 2023. However, that did not account for the previous Bank Holidays or the weekend shifts. 35.2. The Claimant often took sick leave or annual leave in order to attend medical appointments, and she organised to have some of her medical treatment outside working hours. For instance: i. In the period 4 November 2021 to 20 January 2022 the Claimant had three periods of absence from work for chemotherapy treatment. These absences were recorded as sickness absence. ii. An Occupational Health report of 28 February 2022 states: “She experiences significant side effects following her treatment which requires her to take sick leave / annual leave”. iii. Mr Gottardi’s supervision notes of 2 May 2022 state: “Jullie has planned her leave around her treatment and she is happy for the management team to support her with that”. iv. Mr Gottardi’s supervision notes of 29 July 2022 state: “Annual leave to be booked for treatment or rest days”. v. An Occupational Health report of 30 August 2022 states: “We discussed the impact of her Cancer-related appointments on her attendance as she is very concerned about this. She is on a treatment that requires her to have an injection every 3 weeks and her Oncology team used to offer this to her outside of working hours, but this has stopped because of their staffing shortages. I will speak to her Oncologist about what is practicable to do about this”. vi. The Claimant asked Mr Gottardi for annual leave to cover medical appointments by WhatsApp on 4 and 17 August 2022, 5 June 2023 and 12 September 2023. The Tribunal accepts Mr Gottardi’s evidence that on other occasions the Claimant asked verbally for annual leave in order to attend medical appointments, and that she did so frequently. The Claimant’s annual leave records showed numerous single day or two day periods of annual leave which broadly corresponded to the pattern of treatment she was undergoing. The Claimant did not give any explanation for these days off. The Tribunal concluded that they were days she took off for medical treatment. 14 of 31

[36]In November 2022 the Claimant informed the Respondent that she had been told that her condition was terminal. The events of September—December 2024

[37]On 8 September 2024 the Claimant telephoned a member of HR, Lynn Hill, to enquire about paid time off for medical appointments. The following day Ms Hill followed up with an email attaching the Respondent’s sickness absence policy and informing the Claimant that there was also a disability policy.

[38]The Claimant responded in two emails on 10 September. In the first email, at 7:21am, she said that there was a longstanding custom and practice as well as a local agreement between her and her previous manager that she should receive pay for time off for medical appointments, but that she had noticed that her recent time off for appointments was being recorded as annual leave. This email was written by the Claimant’s husband on her behalf. The second email, sent at 9:33am, contained similar content, though appears to have been written by the Claimant herself.

[39]Later that day another member of HR, Caroline Armitage, informed the Claimant that she was entitled to paid time off for appointments under the Procedural Guidance. She also said that the appointments should be recorded on a Reasonable Adjustment Agreement. She attached a blank Reasonable Adjustment Agreement form. On 11 September Ms Armitage told the Claimant that if her manager needed to discuss the matter with HR she should contact either Lorraine Drever or herself.

[40]On 11 September 2024 the Claimant spoke to Ms Nehiweze about time of for medical appointments. Ms Nehiweze emailed the Claimant later that day thanking her for the catch-up and saying that she now had a better understanding of the disability policy. She said that she had adjusted the days that the Claimant had requested and would continue to do so in the future. She said “I will need to see, if there was a file created for you in regards to reasonable adjustments (If not, we can have a meeting to create one); to make it easier for other members of the management team to be aware”. Finally, she said that she would complete an Occupational Health referral for the Claimant.

[41]Ms Nehiweze emailed the Claimant again the following day, Thursday 12 September 2024. She said that she had spoken to HR about how much disability leave she could give the Claimant. She also reiterated that she would like to have a meeting with the Claimant the following day to discuss her reasonable adjustments and to complete risk assessments.

[42]The Tribunal finds that there was nothing negative about what the Respondent was offering to the Claimant at this time. The Claimant had been taking annual leave to attend medical appointments for the previous three years, and was now being given disability leave for medical appointments instead. She would only need to take annual leave for appointments once her disability leave was exhausted. If anything, the Respondent should have been giving the Claimant 15 of 31 disability leave since 2021. Furthermore, there was nothing negative about asking the Claimant to complete and sign a Reasonable Adjustment Agreement. This would have usefully recorded her adjustments in writing, so that the Claimant’s next manager would know about them and there would be no further confusion of the sort that arose in September 2024. Again, this is something that should have been done in 2021.

[43]The meeting between Ms Nehiweze and the Claimant did not take place on Friday 13 September. However it did take place on the following working day, Monday 16 September. This was an informal meeting, so formal notice of it was not required. However, Ms Nehiweze’s emails of 11 and 12 September did amount to notice of it, and explained what would be discussed.

[44]After the meeting of 16 September 2024, Ms Nehiweze sent the Claimant a letter summarising the outcome. The Tribunal accepts that this letter is an accurate record of the meeting. It shows that Ms Nehiweze: 44.1. thanked the Claimant for bringing the Procedural Guidance to her attention; 44.2. highlighted that the usual amount of disability leave was 37.5 hours per year, but that this could be extended (the Claimant’s email of 23 September 2024—see below—shows that Ms Nehiweze offered ; 44.3. agreed with the Claimant that once she had used up all her disability leave, she would use annual leave for her medical appointments instead; 44.4. gave the Claimant a blank Reasonable Adjustment Agreement to take home and fill in.

[45]As the Claimant agreed in cross-examination, Ms Nehiweze did not say to her at the meeting of 16 September 2024 that she would have to change her working pattern or her duties. The Tribunal also finds that Ms Nehiweze did not make a comment that was later attributed to her by the Claimant, which was along the lines of “it has gone on for long enough” and/or “how much longer is this going to go on for?”. It is the Tribunal’s view that Ms Nehiweze said something else which was misinterpreted or misunderstood by the Claimant.

[46]On 23 September 2024 the Claimant responded by email to Ms Nehiweze’s letter of 16 September 2024. This email was written by the Claimant’s husband on her behalf. It stated that her current working arrangements were permanent contractual terms and conditions and were those set out at paragraph 29 above. The email said that the Claimant had never entered into a Reasonable Adjustment Agreement and asked Ms Nehiweze to “confirm and justify” the reasons for asking her to do so now. It also said that the situation was causing the Claimant a great deal of stress and anxiety, and accused Ms Nehiweze of making the comment described in paragraph 45 above.

[47]The Claimant’s email also said that the Claimant felt that she was being pressured and harassed to agree to things, and that she did not wish to attend another meeting without being given prior written notice. 16 of 31

[48]Ms Nehiweze responded to the Claimant’s email on 24 September 2024. She apologised for any distress caused to the Claimant by her email of 16 September 2024, and said that her aim was to offer her support during a difficult time. She said that the suggestions that she had made were with the Claimant’s well-being in mind. She explained that: “There was no formal documentation put in place for you previously, which is why I now need to take that step to ensure that you have your reasonable adjustments to work documented”

[49]Ms Nehiweze also denied having made the comment the Claimant had accused her of making. She explained that what she had said was that she was not sure how much more disability leave she could support the Claimant with beyond the entitlement of 37.5 hours, and that she would need clarity from HR on that issue. She said that it was not her intent to make the Claimant feel discriminated against, and that that had not been the nature of the conversation.

[50]The Tribunal finds that Ms Nehiweze’s email of 24 September 2024 amounted to an immediate denial of the accusation that she had made the alleged comment (described in paragraph 45 above) and an apology for any distress she may have inadvertently caused. The email did not put pressure on the Claimant to sign the Reasonable Adjustment Agreement, and could not reasonably be read that way. Rather, the email was an attempt to persuade the Claimant to come to a meeting so that her concerns and misunderstandings could be addressed face to face, rather than engaging in the increasingly confrontational email correspondence.

[51]The Tribunal finds that this was an eminently reasonable approach and was designed to deescalate the situation. The email correspondence was not likely to deescalate the situation. This was in large part because the Claimant’s emails were based on incorrect facts: it was not true that Ms Hudson had agreed a contractual change in 2021, and it was not true that the Claimant had been given paid leave for her medical appointments. In fact, she had taken annual leave for her medical appointments for several years. The Tribunal considers it likely that some facts and accuracy were lost in the Claimant’s communication with her husband, and that this translated into the emails he was writing on her behalf.

[52]On 26 September 2024 the Claimant responded to Ms Nehiweze’s email of 24 September, again in an email written by her husband. This took issue with most of the points made by Ms Nehiweze, refused to accept her explanation regarding the alleged comment and asked a series of questions.

[53]On 27 September 2024 Ms Drever sent the Claimant a response to her email to Ms Nehiweze. She said that she was sorry to hear that the situation was causing the Claimant stress and anxiety. She said that this was not Ms Nehiweze’s intention and that she had a responsibility to ensure that the Claimant was receiving the appropriate support whilst following the Respondent’s policy and procedure. She asked for a catch-up about the Claimant’s concerns. Again, the Tribunal finds that Ms Drever was trying to deescalate the situation by meeting 17 of 31 with the Claimant. She was trying to avoid becoming entrenched in the hostile correspondence being sent by the Claimant’s husband.

[54]The Claimant was on annual leave from 30 September to 11 October 2024. During that period, on 2 October 2024, she responded to Ms Drever in another email written by her husband. This email insisted on a response to the questions purportedly asked in previous correspondence, which were set out as follows: 1) Please confirm and justify the reasons for the request to enter into a Reasonable Adjustment Agreement given that my current contract of employment adequately covers and supports my needs in terms of my disability and my ability to work as demonstrated over the past three years. 2) Please confirm and justify the reasons as to why I have been selected for changes to be made to my contract together with the reasons and justification for the way that I have and continue to be treated in relation to this matter (as outlined in my previous two letters) – I believe I have and continue to be discriminated against due to my disability. 3) Please provide me with a written copy of my current contract of employment which accurately reflects and includes my current terms and conditions as stated in my first letter dated 23/09/24 – which have been in place for over three years. 4) Aiseosa states in her letter dated 24/09/24 that 'the proposed changes were done with my wellbeing in mind' – Please explain and justify how proposing to reduce my current benefits in terms of my paid time off and the impact this would have on my annual leave is in any way beneficial to me. 5) Regarding the very offensive and discriminatory comment made during the meeting on 16/09/24 whereby Aiseosa asked me "how long is this going to go on for", you will be aware that the explanation provided by my Manager in her letter dated 24/09/24 in relation to this contradicts the previous letter – hence I am still waiting for my Manager's written explanation and justification confirming why I was asked this question. 6) Please provide me with a copy of the referral letter / form that was sent by my Manager to Occupational Health outlining the reasons for my referral. 7) Please provide me with a copy of the NHS Occupational Health Policy

[55]Ms Drever’s response of 9 October 2024 did not directly address the Claimant’s seven questions. In particular she did not attach the paperwork requested by the Claimant. Moreover she did not directly respond to the Claimant’s allegations of disability discrimination, her continued insistence that she had a permanent contractual agreement made in 2021, or her allegation that what was being offered to her was a reduction in her benefits. Ms Drever was focussed on trying to deescalate the situation by encouraging the Claimant to come to a meeting, as 18 of 31 explained above. Nonetheless, her email did effectively answer the substance of questions 1, 2 and 4 by saying: “Gold [Ms Nehiweze] wishes to provide you with appropriate ongoing support as per Trust policy and procedures. This process involves ensuring that an accurate and current record is held about the support and reasonable adjustments agreed in relation to your health and wellbeing. It is good practice that this is reviewed regularly to ensure that this is up to date and continues to meet your requirements and the needs of the service. These are reasonable adjustments which is separate to any terms and conditions stated in a contract of employment… “…the purpose of Gold [Ms Nehiweze] wishing to talk to you about this is to ensure that she is fulfilling her role as your manager, and ensuring that we as a Trust have a clear understanding of what is agreed in relation to your health and required reasonable adjustments.”

[56]On 16 October 2024 Ms Nehiweze emailed the Claimant directly addressing each of her seven questions as follows: 56.1. On question 1, she said that the Claimant was working under reasonable adjustments which needed to be reviewed regularly and documented. She provided a link to the Procedural Guidance. 56.2. On question 2, she said that she was trying to put the required documents in place in order to support the Claimant. 56.3. On question 3, she said that HR was looking for the Claimant’s contract of employment, but that it would be the original 2017 contract since there had not been any change. 56.4. On question 4, she said that the Claimant’s current reasonable adjustments would not be changed unless there was a reason to do so, but that a flexible working contract would need to be completed. She provided a link to the Respondent’s Flexible Working policy. She said that the only thing that needed to be agreed was time taken off work for appointments. In that regard, she said that the Claimant might consider taking less than a whole day for each appointment in order to use up her disability leave less quickly. 56.5. On question 5, she denied making the alleged comment. 56.6. On question 6, she attached a copy of the Occupational Health referral letter and a link to an employee guidance document. 56.7. On question 7, she said that there was no Occupational Health Policy, but gave a link to an intranet page explaining the services offered by Occupational Health.

[57]She ended her email by again asking if the Claimant would meet with her and Ms Drever to catch up and assuring the Claimant that she was not denying her rights. 19 of 31

[58]The Tribunal finds that in the 16 October 2024 email Ms Nehiweze did not insist that the Claimant sign a Reasonable Adjustment Agreement and nor did she insist that the Claimant sign a flexible working contract. She merely mentioned those pieces of paperwork in direct response to the questions that the Claimant had insisted that she answer. All that she directly asked the Claimant to do was to have a conversation to discuss how to move forward.

[59]On 18 October 2024 the Claimant responded to Ms Nehiweze’s email of 16 October, again by way of a long email written by her husband. This email took issue with almost every point contained in Ms Nehiweze’s email and made further allegations of discrimination as well as allegations of harassment. It also complained that the Claimant’s working hours had been changed while she was on annual leave without any consultation or discussion. She had checked the rota on 14 October 2024 and seen that she had been listed as working from 7:30 to 3:30 each day. She alleged that this was another example of discrimination and harassment.

[60]In fact, the Claimant’s rota had been drawn up around two months earlier by the Deputy Ward Manager, Editimi Leizou. Ms Leizou had simply populated the rota with the default “early” shift for the Claimant, without manually overriding it to show her actual hours of 9:30 to 5:30 daily. This had happened on previous occasions in 2024 without complaint from the Claimant. This was explained to the Claimant by Ms Nehiweze in an email of 23 October 2024. In her response of 24 October 2024, written by her husband, the Claimant refused to accept this explanation. However, under cross-examination the Claimant accepted that accusing Ms Nehiweze of deliberately changing her working hours in October 2024 was “my mistake“.

[61]In her email of 23 October 2024 Ms Nehiweze again asked the Claimant to attend a “sit-down conversation” in order to “give clarification to your points”. She said that if the Claimant did not wish to do so, she would escalate the matter to the Ward Matron. In the Claimant’s response, written by her husband, she said “I confirm that I do not wish to have a meeting with you to discuss my concerns and prefer to have things in writing to ensure there is no misunderstanding of what has been said”.

[62]On 25 October 2024 the Claimant attended an Occupational Health review. The report of the same date said that the Claimant did not need any further workplace adjustments (other than in respect of one piece of equipment).

[63]On 7 November 2024 Ms Dada attended the ward and invited the Claimant to come into her room for a conversation, which the Claimant willingly did. The Tribunal finds that the informal meeting which took place was open, constructive and friendly. Ms Dada allowed the Claimant to “vent” about her concerns, as the Claimant accepted under cross-examination. Ms Dada explained to the Claimant what it meant to be supernumerary, and the effect of the fact that the Claimant was not performing the whole role of a Healthcare Assistant. She did not say that the way in which the Claimant was paid was “illegal”. The Claimant said several times during the meeting that she appreciated Ms Dada taking the time to talk to 20 of 31 her. The Claimant agreed to attend a further meeting on 22 November 2024 on the condition that she could bring her union representative, which Ms Dada agreed.

[64]Nonetheless, on 12 November 2024 a long email was sent from the Claimant’s address, written by her husband, complaining about the meeting she had had with Ms Dada. The email said that the Claimant had been surprised to be “called into a meeting … without any prior warning or notice”, that Ms Dada had told her that she was “not doing the job of a Healthcare Assistant” and that she was supernumerary, and that the way in which Ms Dada was being paid was illegal. The email said that the Claimant left the meeting feeling “very low, intimidated and upset”. It went on to say that not doing the full duties of a Healthcare Assistant “does not make me supernumerary” and that her “current benefits”, including “enhanced level of disability leave” had been in place for three years from the time that her contract of employment was allegedly changed. The email then replicated the seven questions which the Claimant had asked Ms Drever on 2 October 2024 (paragraph 54 above) and which Ms Nehiweze had answered on 16 October 2024 (paragraph 56 above). She stated that if the matter was not resolved within two weeks she would pursue it through formal routes.

[65]Ms Dada’s response of 12 November 2024 said that she was “shocked and surprised” by the Claimant’s email, and she was disappointed that it bore no resemblance to the discussion they had had on 7 November. She explained that the meeting had been impromptu, supportive and unstructured and that she had tried to address the Claimant’s fears and concerns. She denied telling the Claimant that the way she was paid was “illegal”, and explained that she had used the word “legal” in a different context.

[66]By email on 15 November 2024 the Claimant informed Ms Dada that her union representative was not available for the meeting which had been provisionally planned for 22 November 2024. On 18 November 2024 she emailed Ms Drever stating that her union representative was available on 29 November 2024. She also complained again about being designated as a supernumerary member of staff, stating that her disability did not change the status of her role. The Claimant chased Ms Drever for a response on 20 November 2024, but did not receive any response to these emails until 18 December 2024. In the meantime she had gone off sick with anxiety on 3 December 2024 and had lodged her ET1 on 6 December 2024. RELEVANT LAW Direct disability discrimination: s.13 EqA

RELEVANT LAW

[67]By s.13(1) EqA an employer directly discriminates against an employee if in subjecting him to a detriment it treats him less favourably because of a protected characteristic than it treats or would treat others. By s.6 EqA the protected characteristics include disability. 21 of 31

[68]The Claimant must prove on the balance of probabilities facts from which the Tribunal “could conclude”, in the absence of an adequate explanation, that the Respondent has committed an act of unlawful discrimination (“the first stage”). This means that the Claimant must show facts from which the Tribunal could conclude that: 68.1. the Claimant has been subjected to a detriment (s.39(2)(d) EqA). A detriment is something which a reasonable employee would consider to be to his detriment (MOD v Jeremiah

[1980] ICR 13

CA). An unjustified sense of grievance cannot amount to a detriment (St Helens Metropolitan Borough Council v Derbyshire

[2007] ICR 841

HL); 68.2. in being subjected to the detriment the Claimant has been treated less favourably than a real or hypothetical comparator was or would have been treated (s.13(1) EqA). There must be no material difference between the circumstances of the claimant and the comparator (other than the protected characteristic) (s.23 EqA); and 68.3. an effective cause of the difference in treatment was the protected characteristic (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor

[1997] ICR 33

EAT).

[69]At the first stage the Tribunal should consider all the primary facts, not just those advanced by the Claimant. The Tribunal should assume that there is no adequate explanation (Hewage v Grampian Health Board

[2012] ICR 1054

paragraph 31, guideline 6 in Igen v Wong

[2005] IRLR 258

CA). “Could conclude” means “a reasonable tribunal could properly conclude” from all the evidence before it (Madarassy v Nomura International plc

[2007] ICR 867

CA).

[70]There does not have to be positive evidence that the difference in treatment is the prohibited ground in order to establish a prima facie case (Network Rail Infrastructure Ltd v Griffiths-Henry

UKEAT/0642/05/CK

at paragraph 18).

[71]The decision that the Tribunal “could conclude” that there was discrimination may rely on the drawing of inferences from primary facts (guideline 5 in Igen).

[72]If the burden of proof shifts, the Respondent must show that it did not commit the acts or that the treatment was not on the prohibited ground (guidelines 9 and 10 in Igen) (“the second stage”).

[73]At the second stage the Tribunal must assess not merely whether the Respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the prohibited ground was not a ground for the treatment in question (guideline 12 in Igen).

[74]Tribunals should be careful not to approach the Igen guidelines in too mechanistic a fashion (Hewage paragraph 32, London Borough of Ealing v Rihal

[2004] EWCA Civ 623

paragraph 26). The question is a fundamentally simple one of asking why the employer acted as he did (Laing v Manchester City Council

[2006] ICR 1519

at paragraph 63), which calls for “some consideration of the mental processes of the alleged discriminator” (Nagarajan v London Regional Transport

[1999] ICR 22

of 31 877 per Lord Nicholls at 884). In some cases it is appropriate to focus primarily on the question of what was the reason why the Respondent acted as it did (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

SC per Lord Nicholls at paragraphs 8—13), and it is permissible to dispense altogether with the identification of a comparator or the construction of a hypothetical comparator (Stockton on Tees Borough Council v Aylott

[2010] ICR 128

at paragraph 45; D’Silva v NATFHE

[2008] IRLR 412

at paragraph 30; Page v NHS Development Authority

UKEAT/0183/18/DA

(unreported, 19 June 2019) at paragraphs 34—35).

[75]In every case the Tribunal should consider the totality of the primary facts and examine indicators from the surrounding circumstances and the previous history (King v Great Britain China Centre

[1992] ICR 516

CA). Discrimination arising from disability: s.15 EqA

[76]By s.15 EqA an employer discriminates against a disabled employee if it treats him unfavourably because of something arising in consequence of his disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim. This cause of action does not apply if the employer shows that it did not know and could not reasonably have been expected to know that the employee had the disability, in the sense that it knew or should have known that the employee suffered an impediment to his physical or mental health or that that impairment had a substantial and long-term effect (s.15(2) EqA; Pnaiser v NHS England

[2016] IRLR 170

EAT).

[77]The Tribunal should approach complaints of discrimination arising from disability as follows: 77.1. Identify whether there was unfavourable treatment and by whom. No comparator is required. In most cases, “little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment”” (Williams v Trustees of Swansea University Pension and Assurance Scheme

[2018] ICR 233

SC at paragraph 27 (obiter)). 77.2. Determine what was the “something” which, consciously or unconsciously, was the reason or an effective cause of the unfavourable treatment. This is not a question of motive. 77.3. Decide whether the “something” arose in consequence of the employee’s disability. This is a question of objective fact. “Arising in consequence of” may describe a series of causal links. The employer need not have been aware that the “something” arises in consequence of the disability. (Pnaiser v NHS England

[2016] IRLR 170

EAT; Basildon & Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

EAT; City of York Council v Grosset

[2018] IRLR 746

CA; Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

EAT) 23 of 31

[78]The employer’s justification defence requires it to show that it had a legitimate aim in subjecting the employee to unfavourable treatment, and that it used means to achieve that aim which were proportionate in the sense that they were appropriate and reasonably necessary to do so. The aim must correspond to the facts and should be legitimate in the particular circumstances (Seldon v Clarkson Wright & Jakes

[2012] ICR 716

SC). The Tribunal’s assessment of the justification defence requires a fact-sensitive exercise, balancing the discriminatory effect of the measure or decision in question against the reasonable needs of the employer (See for example Rosenbladt v Oellerking GmbH (C-45/09)

[2011] 1 CMLR 32

; Fuchs v Land Hessen (C-159/10)

[2012] ICR 93

). Both appropriateness and necessity are matters of balance. Harassment: s.26 EqA

[79]Harassment under the EqA consists of engaging in unwanted conduct related to a protected characteristic which has the purpose or effect of violating a person’s dignity or subjecting them to an intimidating, hostile, degrading, humiliating or offensive environment (EqA s.26(1)).

[80]In order to amount to harassment the conduct need only be “related to” a protected characteristic. This is a broader test than the “because of” causation required for direct discrimination, but is not so broad as to include any instance of behaviour which might be said to amount to bullying or which merely takes place against a background of discriminatory treatment (UNITE the Union v Nailard

[2018] IRLR 730

CA). An association with the protected characteristic is still required. The perception of the Claimant that the conduct was related to the protected characteristic is not determinative (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

EAT).

[81]Where the conduct complained of had the effect (rather than the purpose) of violating the victim’s dignity etc, the Tribunal should take into account the perception of the complainant, the other circumstances of the case and whether it is reasonable for the conduct to have had the effect (s.26(4) EqA}. This is a mixed subjective and objective test (See Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

EAT, and see further Land Registry v Grant

[2011] ICR 1390

CA per Elias LJ at paragraph 47).

[82]If conduct amounts to direct discrimination, it cannot also amount to harassment (s.212 EqA). Victimisation: s.27 EqA

[83]By s.27 EqA an employee is victimised if he is subjected to a detriment by his employer because he has done or is expected to do a protected act.

[84]Protected acts include making allegations that any person has contravened the Equality Act or doing any other thing for the purposes of or in connection with the 24 of 31 Act. It is not necessary for the employee to specifically name the Equality Act; it is enough if he alleges that things have been done which would be a breach of the Act (Waters v Metropolitan Police Comr

[1997] ICR 1073

CA). There must be “something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies” (Durrani v London Borough of Ealing

UKEAT/0454/2012

(10 April 2013, unreported)).

[85]A detriment is something which a reasonable employee would consider to be to his detriment (MOD v Jeremiah

[1980] ICR 13

CA). An unjustified sense of grievance cannot amount to a detriment (St Helens Metropolitan Borough Council v Derbyshire

[2007] ICR 841

HL).

[86]There is no need for a comparator in a complaint of victimisation.

[87]If the reason for the treatment was a feature of the protected act which was separable from it, such as the manner in which it was done, the treatment will not amount to unlawful victimisation (Martin v Devonshires Solicitors

[2011] ICR 352

EAT; see also Page v The Lord Chancellor

[2021] ICR 912

CA). CONCLUSIONS Direct disability discrimination

CONCLUSIONS

[88]The Tribunal finds that the Claimant was not subjected to any detriment in respect of the matters complained of in issue 2. Our reasons follow. Issue 2.1.1: the meeting with Ms Nehiweze of 16 September 2024

[89]The Tribunal finds in relation to the meeting of 16 September 2024 that: 89.1. The meeting was not without notice. The Claimant was given notice by Ms Nehiweze in her emails of 11 and 12 September 2024. In any event, it was an informal meeting and did not require notice to be given. Not giving notice would not have amounted to detrimental treatment in that a reasonable worker would not conclude that it was to his detriment. 89.2. Ms Nehiweze did not require the Claimant to change her terms and conditions of employment. 89.3. Ms Nehiweze did not require the Claimant to sign a Reasonable Adjustment Agreement. 89.4. The Claimant had not had an arrangement in place since August 2021 to the effect that she was entitled to paid time off for medical appointments without using her annual leave. We were shown no evidence that the Claimant had ever had any paid time off for medical appointments before September 2024. In fact the opposite is true: she had been using her annual leave for medical appointments since 2021. That is something for 25 of 31 which the Respondent is to be criticised. The Tribunal was surprised and concerned that no paperwork existed which recorded the Claimant’s working practices, that not even her contract of employment could be located and that several managers were entirely unaware of the Procedural Guidance such that the Claimant was forced to use her annual leave for medical appointments for over three years until she herself brought the Procedural Guidance to Ms Nehiweze’s attention. Nonetheless, it follows from our conclusion that Ms Nehiweze did not remove from the Claimant any entitlement to paid time off for medical appointments. The reality is that Ms Nehiweze was trying to give the Claimant paid time off for medical appointments by way of disability leave under the Procedural Guidance, and to do so at a rate above the basic entitlement of 37.5 hours per rolling 12 months. This would have reduced substantially the need for the Claimant to use her annual leave for medical appointments. Issue 2.1.2: Ms Nehiweze’s alleged comment in the meeting of 16 September 2024

[90]The Tribunal has concluded that Ms Nehiweze did not make the comments alleged. Issues 2.1.3 and 2.1.4: Ms Nehiweze’s email of 24 September 2024

[91]The Tribunal has decided that in this email: 91.1. Ms Nehiweze did not place the Claimant under pressure to sign a Reasonable Adjustment Agreement. She did not mention the Reasonable Adjustment Agreement in the email. 91.2. Ms Nehiweze did state that the proposed changes were being done with the Claimant’s well-being in mind. That was not a detrimental statement to make. The Respondent’s actions towards the Claimant were benevolent and it was trying to encourage her to come to a meeting to talk about and resolve the issues, which would have benefitted both the Claimant and the Respondent. Issue 2.1.5: Ms Drever’s email of 9 October 2024

[92]The Tribunal finds that Ms Drever did not place the Claimant under pressure to sign a Reasonable Adjustment Agreement in this email. She was merely responding to issues which had been raised by the Claimant and explaining the relevant process. Issue 2.1.6: the alleged rota change in October 2024

[93]The Tribunal has found that Ms Nehiweze did not change the Claimant’s working hours. The alleged change was not done by Ms Nehiweze and was merely a matter of a Deputy Ward Manager not manually overriding the automatic entry for an early shift. This was accepted by the Claimant in cross-examination. 26 of 31 Issue 2.1.7: Ms Nehiweze’s email of 16 October 2024

[94]The Tribunal has found that in this email Ms Nehiweze did not insist that the Claimant sign a Reasonable Adjustment Agreement or a flexible working contract. It is of note that it was quite clear from the email that Ms Nehiweze was not proposing to change the Claimant’s hours, and that a flexible working contract would be merely a matter of completing relevant paperwork so as to maintain a record. Had the Claimant agreed to sign a flexible working contract, this would have been closer to a record of a “permanent contractual change” than the existing, undocumented state of affairs. Issue 2.1.8: the meeting with Ms Dada of 7 November 2024

[95]The Tribunal finds that: 95.1. This was not a meeting as such, but an impromptu conversation. It took place in Ms Dada’s office to ensure confidentiality. There was no need for the Claimant to be given notice and a reasonable employee would not consider it to be a detriment to be asked if she wanted to come into the Matron’s office for a supportive and friendly chat. 95.2. Ms Dada did explain that the Claimant was not completing the full duties of a Healthcare Assistant and that she was supernumerary. These were true statements. They were not delivered in a detrimental manner. It is of note that although it was explained to her by Ms Dada in the meeting, the Claimant still did not appear to understand she could not be anything other than supernumerary. This was because she was physically unable to undertake the safety critical work which is required in order for a member of staff to be counted in the minimum safe staffing level that is required by law. Issues 2.2—2.6

[96]Since the Claimant was not subjected to a detriment in any of the respects listed in issue 2.1, the questions in issues 2.2—2.6 do not fall to be answered.

[97]The direct disability discrimination claim therefore fails. Discrimination arising from disability

[98]The Tribunal finds that the Claimant was not subjected to unfavourable treatment in respect of the matters complained of in issue 3. These matters overlap with those listed under issue 2 as recorded below. Issue 3.1.1: the meeting with Ms Nehiweze of 16 September 2024

[99]See paragraph 89 above. 27 of 31 Issue 3.1.2: Ms Nehiweze’s email of 24 September 2024

100. See paragraph 91.1 above. Issue 3.1.3: Ms Drever’s email of 9 October 2024

101. See paragraph 92 above. Issue 3.1.4: Ms Nehiweze’s email of 16 October 2024

102. See paragraph 94 above. Issues 3.2—3.6

[103]Since the Claimant was not subjected to unfavourable treatment in any of the respects listed in issue 3.1, the questions in issues 2.2—2.6 do not fall to be answered.

[104]The discrimination arising from disability claim fails. Harassment related to disability

[105]The Tribunal finds that the matters complained of either did not occur or were of such minor consequence that it was not reasonable for the Claimant to have experienced them as harassment. Our reasons follow. Issue 4.1.1: Ms Nehiweze’s alleged comment in the meeting of 16 September 2024 106. The Tribunal has found that this comment was not made. Issue 4.1.2: Ms Nehiweze’s email of 24 September 2024

[107]This incident took place: Ms Nehiweze said in this email that the proposed changes were being done with the Claimant’s well-being in mind. Issue 4.1.3: Ms Drever’s email of 27 September 2024

[108]The Tribunal concludes that this email did not fail to offer support to the Claimant. On the contrary, it was an empathetic and supportive email. Issue 4.1.4: the meeting with Ms Dada of 7 November 2024

[109]This incident occurred, except that(a) the meeting was not “without notice” in any meaningful way and

(b) Ms Dada did not tell the Claimant that the way she was being paid was illegal. 28 of 31 Issue 4.2: unwanted conduct

[110]Those parts of the matters referred to in issue 4.1 which took place amounted to unwanted conduct. Issue 4.3: related to disability

[111]Those parts of the matters referred to in issue 4.1 which took place were related to the Claimant’s disability. Issues 4.4 and 4.5: proscribed effect 112. The Tribunal finds as follows: 112.1. As to issue 4.1.2, this remark was not made with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her (“the proscribed effect”). Furthermore it was not reasonable for the Claimant to perceive it as having had the proscribed effect. 112.2. As to the parts of issue 4.1.4 which took place, these were not done with the purpose of causing the proscribed effect. Furthermore it was not reasonable for the Claimant to perceive them as having had the proscribed effect. The statements made were entirely factual and innocuous. See paragraph 91.2 above.

[113]The harassment claim therefore fails. Victimisation

[114]The Tribunal finds that the acts complained of either did not happen or were not done because of the protected acts. Our reasons follow. Issue 5.1: protected acts

[115]The Respondent conceded that the protected acts were done and amounted to protected acts. Issue 5.2.1: Ms Drever’s email of 27 September 2024 (support)

[116]The Tribunal has found that this did not occur. See paragraph 108 above. Issue 5.2.2: Ms Drever’s email of 27 September 2024 (response to concerns)

[117]The Tribunal has found that in this email Ms Drever did not respond to each of the seven questions that the Claimant had raised. Issue 5.2.3: the alleged rota change in October 2024 29 of 31

[118]The Tribunal has found that this did not occur. See paragraph 93 above. Issue 5.2.4: failure to organise a meeting

[119]The Respondent did not organise a meeting between 15 November 2024 and 20 November 2024. However, prior to 15 November 2024 a meeting had been provisionally scheduled for 22 November 2024. On 15 November, the Claimant informed the Respondent that her union representative was not available on 22 November, so the meeting could not go ahead on the planned date. Thereafter there was a delay in organising a new date for the meeting.

[120]Ms Drever did not respond to the Claimant’s emails of 15, 18 and 20 November until 18 December 2024. Issue 5.3: detriment

[121]The incidents which occurred amounted to detriments, in that a reasonable worker would consider them to be to a detriment. Issue 5.4: causation

[122]As to issue 5..2.2, the reason Ms Drever did not respond directly to the Claimant’s seven questions was that she was focussed on deescalating the situation. She was trying to do this by encouraging the Claimant to talk face to face with her line managers rather than getting entrenched in the email correspondence. The email correspondence had become confrontational because of the Claimant’s husband’s unduly aggressive and ill-informed approach. Several of the questions were based on false premises. Ms Drever was right not to want to get caught up in it as it was obvious that this would not have resulted in a benefit to anybody. The protected acts did not play any part in Ms Drever’s decision not to respond to each of the questions directly.

[123]As to issue 5.2.4: 123.1. The complaint is that Ms Drever failed to organise a meeting for the very short period between 15 and 20 November 2024. There was no evidential basis at all for concluding that this was in any way connected to the fact that the Claimant had done protected acts on 23 and 26 September 2024, well over a month earlier. Since then, Ms Drever had engaged in proactive correspondence with the Claimant in her emails of 27 September 2024 and 9 October 2024, in which she had attempted to encourage the Claimant to attend a meeting. 123.2. Similarly, the Claimant did not show any reason for which the Tribunal could find that Ms Drever was motivated by the protected acts in not responding to her emails of 15, 18 and 20 November 2024. Ms Drever said in evidence that she could not remember why she did not respond to the emails. However the Tribunal notes that Ms Drever had corresponded positively with the Claimant since the protected acts were done. Furthermore both before and after the protected acts were done the 30 of 31 Respondent had acted in a benevolent manner towards the Claimant. Its aim was to improve the communication between the Claimant and the Respondent and to clear up the misunderstandings that the Claimant held (principally, in the Tribunal’s view, because of miscommunication and escalation via the Claimant’s husband). The tenor of the Respondent’s communications with the Claimant—and those of Ms Drever in particular—was not consistent with the allegation that this single lapse in communication was connected in any way to the protected acts. The Tribunal is satisfied that this was not an act of victimisation. 124. For those reasons the victimisation claim fails.

[125]The claims are dismissed. Approved by