S Brown v Cambridgeshire and Peterborough NHS Foundation Trust: 3313608/2022

EMPLOYMENT TRIBUNALS

Case No 3313608/2022

Between

S BrownClaimant

Cambridgeshire and Peterborough NHS Foundation TrustRespondent

Before

Employment Judge K J Palmer

Mr Brady (instructed by Counsel) for claimant

Ms Jennings (instructed by Counsel) for respondent

Date 22 July 2024

JUDGMENT

Pursuant to an Open Preliminary Hearing It is the Judgment of this Tribunal that the Claimant is a disabled person for the purposes of s.6 of the Equality Act 2010, at the material time between February 2022 and June 2022.

REASONS

[1]This matter came before me today listed as an Open Preliminary Hearing to determine whether the Claimant is a disabled person at the material time under s.6 of the Equality Act 2010 (“EqA”), and also whether any or all of the Claimant’s claims should be struck out under Rule 37 of the Employment Tribunal Rules of Procedure.

[2]At the outset of the Hearing Ms Jennings, Counsel for the Respondent, confirmed that the Respondents had never sought to pursue the Strike Out Application and did not propose to do so today. The only issue therefore before me today, was the issue of the disability under s.6 EqA 2010.

[3]The Claimant presented a claim to this Tribunal on 17 November 2022. In it she claims constructive unfair dismissal and disability discrimination under s15 and 20 / 21 EqA 2010. The Claimant relies upon the impairment of psoriatic arthritis. Case Number: 3313608/2022 2

[4]I had before me a Bundle running to some 142 pages and I have heard evidence this morning from the Claimant and both parties are represented by Counsel. The Claimant by Mr Brady and the Respondents by Ms Jennings.

[5]The Claimant produced a Witness Statement, or Disability Impact Statement for the purposes of this Hearing, plus various medical records.

[6]The Respondents accept that the Claimant has the impairment, but do not accept that it amounts to a disability under the tests set out in s.6 EqA 2010.

[7]I had helpful Skeleton Arguments from both Counsel and also heard oral submissions.

[8]In the Claimant’s Disability Impact Statement she sets out the effects that she says she suffers as a result of the impairment and these appear at paragraphs 3 and 15 of the Statement.

[9]The Claimant worked as a Senior Joint Emergency Team Practitioner in the Respondent’s Older People and Adult Community. She is a Senior Band 7 Nurse Practitioner. Her role involved her contacting patients and visiting them in their homes and carrying out certain examinations and procedures whilst there. She would assess their condition and liaise with their GPs and assess what further treatment might be required. She would visit many such patients on a daily basis.

[10]Her impairment which was diagnosed many years ago in 2010 meant that she was taking immunosuppressant drugs. In March 2020, when the Covid- 19 pandemic hit the UK, she was classed as an extremely vulnerable person under the Government Guidelines and as a result she was required to shield. The reason for this was that she was on the immunosuppressant drugs. She therefore stepped back from patient facing duties and worked from home undertaking an adjusted role.

[11]After October 2021, when the requirement for shielding and the Government Guidelines were amended and lifted, she continued to work in the adjusted role for the Respondents. However, in February 2022 she was asked to undertake an Occupational Health Assessment and the Respondents sought to consider whether it would be possible for her to go back to patient facing duties. She wished to continue in the adjusted role and the nonpatient facing duties that she had previously undertaken since the pandemic hit.

[12]Subsequently, the Claimant ultimately resigned in June 2022 claiming constructive dismissal and disability discrimination under s.15 and 20 EqA 2010. These claims are all resisted by the Respondent. Case Number: 3313608/2022 3

[13]In her Disability Impact Statement she says, in paragraph 15, that the impairment means she suffers the effects of the impairment and that the effects are substantial and adverse on her ability to carry out day to day activities. Paragraph 15(a) describes difficulties she experiences when she is having a flare up of arthritis in her spine and she describes this as happening twice a year. In paragraphs (b) to (h), she describes difficulties experienced on a daily basis such as with cooking and cleaning, lifting, shopping, gripping objects, writing, weeding and using a lawn mower. She also describes difficulty concentrating. At paragraph 59 she describes the impact of her shielding due to the immunosuppressant medication.

[14]Ms Jennings submitted that on the evidence before me the tests set out in s.6 EqA 2010 are not met. She says I have no evidence as to the effect during the material period which is February 2022 to June 2022. Both parties accept that is the material period.

[15]In cross examination the Claimant admitted that her condition had not previously affected her ability to perform her role pre-pandemic. Ms Jennings says that this does not marry up with the evidence at paragraph 15 of the Claimant’s Disability Impact Statement. She said the medical evidence does not support the effects being relied upon and neither does the Occupational Health Report. She says there is no evidence of what the effect would be, but for the medication being taken. She says the effects arising as a result of the shielding cannot satisfy the tests as they cannot be shown to be long term, as the requirement for shielding was only a Government advisory and was effectively lifted in the autumn of 2021.

[16]Ms Jennings reminds me that the burden of proof is on the Claimant to provide sufficient evidence to persuade me that the tests are passed under s.6 EqA 2010.

[17]Mr Brady says that Ms Jennings is setting the bar too high. He says the impairment is accepted. He reminds me that there is a statutory definition to assist me with a part of the test which requires the impairment to have a substantial effect and that is that the effect has to be more than minor or trivial only to satisfy that definition. He says the condition which the Claimant has had for many years is well documented. He says it persists and it is not improving, but is managed by medication. He says it is a consistent condition and he says the effects are set out at paragraph 15 of her statement. He says that I have to look at the evidence in the round. He argues that the s.6 test is satisfied, not only in respect of the effects described at paragraph 15(a) – (h), but also in respect of paragraph 59 in that the effect of the shielding due to Covid constitutes an effect sufficient to satisfy the s.6 test. Case Number: 3313608/2022 4

The Law

[18]I have to be concerned with s.6 of the Equality Act 2010 and the test that is in that section. The test says as follows: Disability (1) A person (P) has a disability if- (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long term adverse effect on P’s ability to carry out normal day to day activities.

[19]When considering whether a person is disabled under s.6 of the EqA 2010, supplementary provisions for determining that disability appear in Part 1 of Schedule 1 to the Equality Act 2010.

[20]Guidance is also given in the Disability Discrimination meaning of Disability Regulations and the Equality Act 2010 Disability Regulations as well as the Government Guidance on matters to be taken into account in determining questions relating to the definition of disability. Tribunals should take this Guidance into account where they consider it to be relevant.

[21]With respect to ‘substantial’, the substantial part of the test is defined in s.212(1) of the Equality Act 2010 as meaning more than minor or trivial. I should take into account the Authorities that relate to this section, including Anwar v Tower Hamlets College EAT0091/10, and Aderemi v London & South Eastern Railway Ltd.

[2013] ICR591

[22]I am also reminded of the case of Igweike v TSP Bank Plc

[2020] IRLR267

, where His Honour Judge Auerbach reiterated the established principle that a Tribunal should always consider the effect on the particular individual concerned and specifically whether that effect was more than minor or trivial.

[23]When assessing whether a Claimant satisfies the s.6 test, the Tribunal must consider the effect of the impairment and those effects are to be considered as what they would be but for the medication that that individual is taking. It should always be remembered that the burden of proof is on the Claimant, on the balance of probabilities, to demonstrate whether the s.6 test is satisfied.

[24]The bar is not exceptionally high for the test to be satisfied.

Conclusions

[25]The Respondents accept the impairment, but argue that I have insufficient evidence before me to conclude that the Claimant has discharged the burden of proof on her to show that the impairment was substantial and long term. Further, they say, the effects relied upon in the Disability Impact Case Number: 3313608/2022 5 Statement do not marry up with the Claimant’s own evidence in cross examination that the impairment did not affect her ability to carry out her role prior to the advent of Covid.

[26]However, the Claimant was not closely cross examined on that apparent disparity. I therefore accept the Claimant’s evidence at paragraph 15.

[27]There is little evidence which relates specifically to the material period between February 2022 and June 2022, but I am entitled to look at the evidence before me in the round. I have evidence that the impairment has been diagnosed for many years. The effects described at paragraph 15 are effects after taking medication. This evidence indicates that those effects without medication would be greater.

[28]Those effects were not sufficiently challenged in evidence for me to doubt them. They clearly relate to the Claimant’s ability to carry out normal day to day activities. The effects are substantial in that they are more than minor or trivial as they are considerable and involve normal day to day activities such as cooking, cleaning, shopping and gardening, to name a few.

[29]The evidence is sufficient for me to conclude that the effects set out at paragraphs 15(a) – (h) are long term, in that they have lasted or are likely to last for more than 12 months, as set out under Part 2(1) of Schedule 1 to the Equality Act 2010. That is the same for the effect at 15(a).

[31]As to the effects set out at 15(i), I am with Ms Jennings on this point. The effects on the Claimant from shielding are in my judgement short lived as the shielding Guidelines were only advice and were lifted. I do not have sufficient evidence before me that the effect would be continuing in this particular Claimant’s case.

[32]However, for the reasons I have set out, the Claimant is therefore a disabled person under s.6 of the Equality Act 2010, at the material time I have described. 3 August 2023 _____________________________ Employment Judge K J Palmer Sent to the parties on: 4 August 2023 For the Tribunal Office. Case Number: 3313608/2022 1 EMPLOYMENT TRIBUNALS Claimant Respondent Sarah Brown v Cambridgeshire and Peterborough NHS Foundation Trust Heard at: Cambridge On: 28, 29, 30 and 31 May 2024 Before: Employment Judge de Silva KC, Mr A Hayes, Mr B Smith Appearances Claimant: Sorcha Dervin, Counsel Respondent: Alice Beech, Counsel

[1]By Claim Form presented on 27 August 2022, the Claimant made claims for unfair dismissal pursuant to section 98 of the Employment Rights Act 1996 and disability discrimination pursuant to sections 15 and 20 to 21 of the Equality Act 2010. Case Number: 3313608/2022 2

[2]At a Preliminary Hearing on 2 May 2023, the Tribunal determined that the Claimant was disabled for the purposes of section 6 of the Equality Act 2010. The Tribunal went on to case manage the claim. It identified the issues in the case, gave case management directions and listed the present hearing. The Claimant’s disability in the List of Issues was stated to be psoriatic arthritis.

[3]At the Final Hearing, the parties agreed that the hearing would deal with liability only, with remedy being listed for another day if necessary.

[4]On the first day of the hearing, the Claimant gave oral evidence. On the second day, the Tribunal heard oral evidence on behalf of the Respondent from Patricia Rowland, Clinical/Operations Manager, Sarah Moggridge, HR Adviser, and Hayley Hackett, Non-Medical Prescribing Lead. All submitted witness statements and were cross-examined.

[5]The Tribunal was referred to a bundle of documents running to 331 pages and further documents from the Claimant and the Respondent which were handed up during the hearing with the consent of the other party.

[6]In the course of the hearing, the Respondent (clearly correctly on the evidence) conceded the issue of knowledge in relation to the section 15 and section 20/21 disability discrimination claims. Closing submissions were heard on the third day and the Tribunal deliberated on the remainder of the third day and on the fourth day, giving judgment orally on the fourth day, with reasons. At the Final Hearing, a Remedies Hearing was listed on 3 October 2024 in person in the Cambridge Employment Tribunal. The Claimant requested written reasons.

[7]The Tribunal records its gratitude to both Counsel for the professional and courteous manner in which the hearing was conducted. The Tribunal was greatly assisted by their advocacy, both in questioning and submissions, which was of highest standards. B. FINDINGS OF FACT

[8]The Tribunal makes the following findings of fact on the chronology of events which are relevant to the issues between the parties. Where there was no dispute between the parties as to a particular fact, the findings are recorded below without further explanation. Where there was a dispute between the parties on the evidence, the Tribunal explains why it made its findings of fact. The Claimant and her Employment with the Respondent

[9]The Claimant was diagnosed with psoriatic arthritis in 2010. As a result of this condition, she must take immunosuppressants.

[10]The Claimant started her employment with the predecessor of the Respondent, the Community Trust, in November 2002. She became employed by the Respondent by operation of TUPE on 1 April 2015. Case Number: 3313608/2022 3

[11]From 14 November 2018, she was a Band 7 Senior JET (Joint Emergency Team) Practitioner.

[12]JET aims to reduce hospital admissions. Prior to October 2019, it was organised into two teams. The triage team received referrals from GPs, care homes and other health professionals, including the ambulance service, and decided on a course of action for the patient. One course of potential action was sending a clinician from the other JET team to visit the patient in their home. These clinicians would carry out a full advanced clinical assessment (of a kind that a GP might carry out), make an initial diagnosis and organise any care. From March 2019 until the reorganisation in October 2019, the Claimant did no triage shifts (as she was not in the triage team).

[13]Some (but not all) of the clinicians in the JET team were non-medical prescribers (“NMPs”) who were authorised to prescribe medication (without recourse to a GP). Some of the NMPs were Designated Prescribing Practitioners (“DPP”) who were also responsible for supervising up to two students who were in the process of obtaining their NMP qualification. At the material time, the Claimant was the only DPP in the team.

[14]In October 2019, pursuant to a cost-saving directive from the Clinical Commissioning Group, the JET team was reorganised so that all clinicians did both triage and ‘on the road’ work. That is to say there was no separate team doing triage. One member of this team was promoted, one stayed in JET and one found work elsewhere.

[15]There were around 28 clinicians in the JET team at this time. The week was organised into fourteen shifts and the Claimant carried out three shifts per week. There would be two people doing triage on any given shift.

[16]From the time of the reorganisation until the national lockdown commenced in March 2020, the Claimant did seven triage shifts in total.

[17]When lockdown commenced, clinicians within the JET team who were vulnerable, for example because of a medical condition or because of pregnancy, were allocated to do only the triage role. This included the Claimant. It is not in dispute that the Claimant was a highly-skilled and highly-valued employee. As stated above, uniquely in the JET team, she had the DPP authorisation.

[18]In October 2021, government advice about shielding changed and the Respondent asked managers to start having conversations with staff who had been shielding about returning to the workplace. There existed government guidance for people whose immune system meant that they were at higher risk.

[19]On 4 November 2021, the Claimant’s line manager, Carolyn Rooney, carried out a risk assessment in which she stated that a further action to reduce risk for the Claimant was to work from home, undertaking triage for JET. She referred to a review in one year’s time unless there were changes to the job or personal risk factors. Case Number: 3313608/2022 4

[20]On 12 November 2021, the Claimant was given a Statement of Fitness for Work stating that she was advised to work from home for six months (until 12 May 2022).

[21]On 3 December 2021, Ms Rooney referred the Claimant to Occupational Health in connection with facilitating her return to work. She did not tick the box against the question “Would temporary or permanent redeployment be advised”. The Tribunal was not shown any Occupational Health report which followed this referral.

[22]On 18 February 2022, there was another Occupational Health referral in which the box against the question “Would temporary or permanent redeployment be advised” was ticked. The form asked what could be done to support the Claimant’s return to being patient-facing and whether redeployment into a non-patient role was recommended.

[23]The Occupational Health report in response, which was dated 3 March 2022, stated that Occupational Health fully supported her continuing to work from home given the risks due to her low immunity vulnerability. The report did not expressly answer the questions in the referral form about supporting a return to patient-facing work or about redeployment.

[24]On 11 March 2022, Ms Rooney forwarded the report to Mrs Rowland, who was her Line Manager, stating that Occupational Health supported the Claimant fully working from home and had made no mention of redeployment. She said that she supposed that if Occupational Health said that the Claimant must work from home, this meant redeployment was not to be considered.

[25]At a meeting on 14 March 2022, Ms Rooney, Mrs Rowland and Ms Moggridge agreed that they would let the Claimant continue to do only the triage element of her role for a further six months and then review the situation. No formal notes were taken of this meeting and the Tribunal was not shown any informal notes.

[26]There was then a discussion between Mrs Rowland and Ingrid Randall, Deputy General Manager. Ms Randall expressed the view that the Claimant should be returning to her full contractual role, i.e. including the patient-facing element.

[27]By email of 15 March 2022, Mrs Rowland told Ms Moggridge that, following their discussion on 14 March 2022 around a six-month plan and review, on reflection and having spoken to Ms Randall, she felt that they needed to start the redeployment process as soon as possible. By email later on 15 March 2022, Ms Moggridge emailed her manager, Kuljt Mann, stating that:a. In a discussion on 14 March 2022, she had advised that if they could not accommodate the Claimant they would have to look at redeployment but it was unlikely that they would find a band 7 post permanently working from home and that they had agreed to accommodate the Claimant for six months and then review;

b. Mrs Rowland had said that on reflection they could not accommodate and that they wanted to start the redeployment process; Case Number: 3313608/2022 5

c. Knowing that they were not likely to find a suitable alternative and that it was probably not going to go down well with the Claimant, she wanted to check that they were on the same page.

[28]A further meeting between Ms Rooney, Mrs Rowland and Ms Moggridge took place on 21 March 2022. Again there is no note of this meeting. On 21 March 2022, Ms Rooney emailed a list of internal vacancies to the Claimant which the email stated that they had previously discussed. She asked for dates for availability for meeting with Mrs Rowland and HR (and the Claimant’s union representative) “regarding redeployment”.

[29]That meeting took place on 31 March 2022 and the Claimant was accompanied by her union representative, Claire French. Again no formal notes were taken of this meeting. In her summary statement following the meeting, the Claimant describes the purpose of the meeting as being to gather information regarding her health. In her email of 31 March 2022, Mrs Rowland describes the purpose of the meeting as being to gather information regarding the Claimant’s health so that they could make an informed decision regarding her current role in JET. It is agreed between the parties that redeployment was discussed at this meeting.

[30]They discussed the possibility of redeployment if the ET team could not continue to support the Claimant in a non-patient facing role. There appears to have been no discussion about how it might have been possible to keep the Claimant in a non-patient facing role, whether as a reasonable adjustment in light of her disability or otherwise.

[31]By email of 4 April 2022, Mrs Rowland set out some points to Ms Randall about the impact of redeploying the Claimant, set against keeping her in her current nonpatient facing role. She said that this would give consistent triage three days per week, referring to staff respecting the Claimant and tapping into her knowledge. She said that it would mean they had a sign-off NMP mentor (i.e. a DPP).

[32]As for redeployment, she said that it would not be easy to redeploy the Claimant into a band 7 role but again referred to the potential negative impact of redeploying the Claimant, including leaving a gap in the service.

[33]She concluded: “What would this achieve at the end of the eight week redeployment process? Sarah without a job and we would have to fill the gap”. She said that this was food for thought for a meeting the following day but said in evidence that she could not recall such a meeting (and there are no notes of any such meeting).

[34]By email of 5 April 2022, Mrs Rowland asked the Claimant for a letter from her consultant supporting her not being patient-facing. The Claimant replied the same day stating that she would forward this when she received it.

[35]By further email of 5 April 2022, Mrs Rowland asked Hayley Hassett (Non-Medical Prescribing Lead for the Respondent) for information about the NMP role. She stated “To be able to support staff as a mentor I am presuming you have to be Case Number: 3313608/2022 6 patient facing for some of the time”. The substantive response came from Ms Hackett on 14 April 2022 (who replace Ms Hassett) who stated that for someone who is DPP for someone undertaking the NMP module they would need to be patient-facing for some of the time.

[36]On 25 May 2022, the Claimant received a job offer from West Cambridge Federation, based at their offices, having applied for this role earlier that month. The letter had a space for acceptance of the offer which is blank in the version provided to the Tribunal. The Tribunal accepts that this letter was acknowledged by the Claimant but she did believe that she had accepted the role.

[37]By letter sent on 1 June 2022 (which was dated 20 April 2022 but was not sent at that time due to the passing of the Claimant’s mother), Mrs Rowland set out the topics of discussion at the meeting of 31 March 2022. This stated among other things that redeployment was briefly discussed as an option if JET could continue to support her.

[38]By 1 June 2022, a decision was taken by Mark Cooke (General Manager South Cambridgeshire) and Ingrid Randall that it was not possible for the Claimant to continue doing the triage-only element of her role. The Tribunal did not hear from either of the decision makers. It only heard from Mrs Rowland on the decision and she was merely the person who communicated the decision. Mrs Rowland sets out what she describes as her recollection of Mr Cooke and Ms Randall’s rationale but there is no account of how or when this was communicated to her (for example by reference to a meeting or an email).

[39]A meeting took place on 9 June 2022. At this meeting, the Claimant was told by Mrs Rowland that they had discussed the position with her managers that there was no triage-only role they therefore had to go through redeployment. In the course of the discussion, the Claimant said that she had looked at lots of vacancies and there were none that fit her skill set and, as she could not see patients, that was going to be a bit of an issue. She said that she had actually found alternative employment so she wanted to have a discussion about leaving and whether she could negotiate her notice period. Again no notes were taken by the Respondent of this meeting although it was recorded by the Claimant and transcribed.

[40]By letter dated 9 June 2022, Dr Gaafar Massawi, a rheumatologist stated to the Claimant: “Äs per recent guidelines we would advocate that Ms Brown .. stay in a job that would not involve contact with patient[s] who are acutely ill or suspected to have infection”. This letter was not shared with the Respondent before these proceedings.

[41]By letter dated 10 June 2022, Mrs Rowland said among other things that due to the disbandment of the JET triage service in 2019 when staff were redeployed, together with the core element of the role being to treat patients in their home to prevent admission, it was the Trust’s decision for her post to fulfil both the triage and the face-to-face role. She said that they would try and look for a more appropriate role. A short meeting took place that day between Mrs Rowland to discuss arrangements for notice. The Claimant said at the meeting that the only suitable role in the Trust was for a fixed term which she was not willing to take. Case Number: 3313608/2022 7

[42]On 14 June 2022, the Claimant resigned. On 30 June 2022, she submitted a grievance. On 8 July 2022, she was told that her concerns would not be investigated as she was no longer employed by the Trust. C. RELEVANT LAW Failure to make reasonable adjustments

[43]In claims for failure to make reasonable adjustments under sections 20 and 21 of the Equality Act, as set out in Environment Agency v Rowan

[2008] IRLR 20

, the Tribunal must first identify:a. The provision, criteria, or practice (“PCP”) applied by or on behalf of the respondent; a. The pool of non-disabled comparators; and

b. The nature and extent of the substantial disadvantage suffered by the claimant.

[44]Once a PCP has been established, the Tribunal should identify a comparator group for the purpose of determining whether there has been a substantial disadvantage placed upon the claimant in comparison to a non-disabled person. The correct approach is set out in Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

[45]As set out in section 212(1) of the Equality Act, ‘substantial’ means something which is more than minor or trivial. Whether there is a substantial disadvantage is assessed on an objective basis.

[46]If the Tribunal is satisfied that a PCP placed the Claimant at a substantial disadvantage when compared to persons who are not disabled, R is required under section 20(2) of the Equality Act to take such steps as are reasonable to avoid the disadvantage.

[47]In assessing the reasonableness of the adjustments sought, the Tribunal should ordinarily consider the question from both parties’ perspectives and consider whether taking any particular steps would be effective in preventing the substantial disadvantage, the practicability of the step, any impact on finance and resources in taking the step and the extent of any disruption caused.

[48]The test of ‘reasonableness’ is to be judged on an objective standard. The Tribunal may consider the wider implications of the proposed adjustment, which may include an assessment of the Respondent’s operational objectives.

[49]In assessing effectiveness, the question for the Tribunal is whether the proposed adjustment has a chance of removing or reducing the disadvantage created by the Case Number: 3313608/2022 8 PCP, not whether it would generally advantage the Claimant (Tameside Hospital NHS Foundation Trust v Mylott EAT 0352/09). Discrimination arising from Disability

[50]Under section 15 of the Equality Act, a person(a) (A) discriminates against a disabled person

(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[51]As set out in Pnaiser v NHS England and anor

[2016] IRLR 170

, this raises three questions:a. Whether the claimant was treated unfavourably and by whom;

b. What caused that treatment, with a focus on the reason in the mind of the alleged discriminator. This may require examination of the conscious or unconscious thought processes (and motive is irrelevant);

c. The Tribunal must then determine whether the reason was “something arising in consequence of the claimant’s disability”, which is an objective question.

[52]The Supreme Court in Trustees of Swansea University Pension and Assurance Scheme and anor v Williams

[2019] ICR 230

held that where the Claimant complains of insufficiently advantageous treatment, this cannot amount to unfavourable treatment. That was a case where the treatment was an award of pension. The only basis on which the Claimant, who was forced by his disability to work part-time, was entitled to any award at that time was by reason of his disabilities. Had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all.

[53]The Tribunal must then consider whether the treatment is a proportionate means of achieving a legitimate aim. The Respondent submits pursuant to Birtenshaw v Oldfield

[2019] IRLR 946

that the Tribunal should give a substantial degree of respect to the judgment of the employer as to what is reasonably necessary to achieve the legitimate aim, provided the decision-maker has acted rationally and responsibly. Limitation

[54]Section 123 EqA states: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. […] Case Number: 3313608/2022 9 (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Constructive Unfair Dismissal

[55]In order for the Claimant to succeed in her claim for constructive unfair dismissal, the Tribunal must be satisfied that the following conditions are met. These are essentially questions of mixed law and fact, in respect of the Tribunal has a wide discretion:a. The respondent committed a breach of contract, here a breach of the implied term of trust and confidence that it shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Malik v Bank of Credit and Commerce International SA

[1997] IRLR 462

). Any breach of this term will be repudiatory;

b. The claimant must have resigned at least in part in response to that breach (Nottinghamshire County Council v Meikle

[2004] EWCA Civ 85

) and not for some other, unconnected reason. It must be an effective cause of termination;

c. The claimant has not waived the breach e.g. in waiting too long before resigning.

[56]As set out by the Employment Appeal Tribunal in Amnesty International v Ahmed

[2009] ICR 1450

, an act of discrimination does not necessarily amount to a breach of the implied duty of trust and confidence. This is accepted by both parties as a matter of law. D. THE TRIBUNAL’S

Conclusions

[57]The parties agreed that the Tribunal should deal first with the claim for failure to make reasonable adjustments. Alleged Failure to Make Reasonable Adjustments Case Number: 3313608/2022 10

[58]The Respondent accepts that there was a PCP broadly as set out in paragraph 4.1 of the List of Issues, i.e. a requirement to carry out all elements of the Claimant’s contractual role as a Band 7 Senior JET Practitioner and it accepts that this PCP was applied to the Claimant.

[59]So far as the comparator group is concerned for the purpose of determining whether there has been a substantial disadvantage placed upon the Claimant in comparison to non-disabled persons, the Claimant relies on a group comprising practitioners who were not immunosuppressed and therefore able to perform all aspects of the role.

[60]Turning to the nature and extent of the alleged substantial disadvantage suffered by the Claimant, at paragraph 4.2 of the List of Issues the Claimant identifies the substantial disadvantage as being her inability to undertake the patient-facing element of the role and therefore the increased likelihood of redeployment.

[61]Although the Respondent submits that the Claimant was not disadvantaged because she agreed that she would have accepted essentially the same thing as redeployment, a period of time in the triage-role whilst she found an alternative position, it is clear to the Tribunal that the Claimant wanted to do the triage-only role and any consideration of redeployment was very much as an alternative to carrying out the triage-only role permanently, if the Respondent set its face against keeping her in the triage-only role.

[62]The Respondent submits that the Claimant has not established on the evidence that she was unable to carry out the patient-facing element of the role. The evidence before the Tribunal included the following:a. The evidence of Dr Massawi that “Äs per recent guidelines we would advocate that Ms Brown… stay in a job that would not involve contact with patient[s] who are acutely ill or suspected to have infection”;

b. The occupational health report stating that Occupational Health fully supported the Claimant to continue working from home given the risks due to her low immunity vulnerability;

c. The concession in oral evidence by Mrs Rowland that the Claimant was unable to carry out the patient-facing element of the role due to her disability.

[63]The Respondent makes the point that there is no explanation (even in the letter from Dr Massawi) as to why the Claimant could not work with unwell patients in May/June 2022 but had been able to do so before March 2020, bearing in mind the fact that shielding restrictions had ended in October 2021. The Claimant submits that the position was worse for her in 2022 even though shielding had ended given the existence of Covid, citing government guidance to the immunosuppressed which included advice to avoid contact with people who had symptoms of Covid or other respiratory infections. Case Number: 3313608/2022 11

[64]In light of the evidence in the previous two paragraphs above, the Tribunal accepts that the Claimant was substantially (that is more than trivially) disadvantaged by the PCP, looking at the comparator group relied on.

[65]The reasonable adjustments contended for by the Claimant, as set out in paragraph 4.3 of the List of Issues, are allowing the Claimant to perform part of her role which she had been undertaking since March 2020 (focusing on undertaking triage), allowing her to work from home and amending her job description accordingly. This all amounts effectively to a single adjustment of allowing her to continue work from home doing the triage-only role (and not working face-to-face).

[66]Looking at the various factors said to relate to reasonableness, the Tribunal finds as follows:a. The triage-only role had been removed at the behest of the Clinical Commissioning Group in 2019 for cost reasons but the events in question were three years later, the Claimant’s proposal was not costed and the fact that it had been removed earlier did not mean that the Claimant could not continue in a role she had been doing from home for more than two years;

b. The Tribunal accepts that it would have been more difficult for the Claimant to carry out her DPP supervisory functions if she was not patient-facing. We accept Mrs Hackett’s evidence on this issue which is consistent with the relevant DPP guidance and common sense. However, the DPP function was not a requirement of the role and the Claimant could have relinquished this function and still done the triage-only role from home. She should not be put in a worse position in relation to adjustments by having qualifications beyond those needed for the role;

c. Although it is theoretically possible that employees who had lost their triageonly jobs in 2019 would be disgruntled if the adjustment was made to the Claimant’s role, this was not investigated and it would not in any event be a good enough reason for an employer not to make an adjustment which was otherwise reasonable;

d. It was envisaged by Ms Rooney that the Claimant might do the triage-only role for a limited period of one year but this was a substantial period and was subject to review thereafter which might have meant that the arrangement continued.

[67]The Respondent also submits that there would be a reduced opportunity for the Claimant to do clinical work and for other team members to refine the difficult skills required to carry out triage work and therefore reduce flexibility to the service. The evidence before the Tribunal on this point, in particular about flexibility and the skills of others in the JET team came from Ms Moggridge. She told the Tribunal that this had come from managers. However, as she accepted in evidence, she had not had contact with the actual decision-makers, Ms Randall and Mr Cooke. She said that this rationale had come from Ms Rooney and Mrs Rowland. The Tribunal does not accept this for the following reasons: Case Number: 3313608/2022 12a. Mrs Rowland makes no mention of this in her own witness statement, even when she deals with Ms Randall and Mr Cooke’s alleged rationale for the decision;

b. There is no reference to this rationale in any of the contemporaneous documents;

c. This rationale appears inconsistent with Ms Rooney’s position at the time which was that the Claimant could continue in the triage-only role and it would be reviewed within a year (later reduced to six months);

d. This rationale is wholly inconsistent with the views expressed by Mrs Rowland at the time, in particular in her email dated 4 April 2022 when she highlighted the positives of keeping the Claimant in the triage-only role.

[68]Based on the evidence set out above, it is clear to the Tribunal that the decision not to permit the Claimant to stay in the triage-only role was made by Mr Cooke and Ms Randall and that their rationale was a desire for staff to return to work.

[69]They did not consider whether it was reasonable or practicable to keep the Claimant in the triage-only role. There is no evidence of this whatsoever. The Tribunal does not accept the evidence of Ms Moggridge that she “would have” advised managers (in particular Ms Rooney and Mrs Rowland) about the possibility of keeping the Claimant in the triage-only role as a RA. There is no evidence that this was considered at the time (in the contemporaneous documents or the witness statements) and Ms Moggridge accepts that she does not recall having done so. In fairness to her, it appears to the Tribunal that she was not given a real opportunity to provide this advice as the decision-makers were simply focused on bringing all staff back to work.

[70]It is apparent that Mrs Rowland was caught between the directive from Mr Cooke and Ms Randall that the Claimant should carry out all aspects of her role, including the patient-facing role, and her own wish to keep the Claimant in the triage-only (or at least consider this). The process she followed was not a sham, as submitted by the Respondent. The decision by Ms Randall in particular to start the deployment process had been made by 15 March 2022 (as is apparent from the wording of Mrs Rowland’s email of that date and that of Ms Moggridge) and she was trying to push against it for the benefit of the Claimant. Her own position was open-minded on the issue but it is clear that the views of Mr Cooke and Ms Randall prevailed.

[71]With all this in mind, the Tribunal does not accept that the Respondent considered whether there was a reduced opportunity for the Claimant to do clinical work or for other team members to refine the difficult skills required to carry out triage work and therefore reduce flexibility to the service. Moreover, it did not have the benefit of hearing from the decision-makers to explain why this was a relevant factor and how it would for example affect the Respondent operationally. The Tribunal accepts as a matter of common sense that if the Claimant did the triage role on a shift, others would not be doing that role on that shift (or more specifically only one person rather than two would be) but it appears that the effect would be minimal Case Number: 3313608/2022 13 as there were still 11 shifts a week (out of 14, as the Claimant worked three) when the Claimant would not be working a triage shift.

[72]Moreover, as Mrs Rowland explained in her email of 4 April 2022, there were considerable advantages to the team to keeping the Claimant in her post, given her experience and the support she provided to colleagues. This rationale did not find its way into the Respondent’s witness statements. In all these circumstances, the Tribunal is of the view that it would have been a reasonable adjustment to allow her to continue work from home doing the triage-only role (and not working face to face with services users), even without the DPP function and this would have reduced the substantial disadvantage to the Claimant.

[73]Therefore, this head of claim succeeds. Discrimination for Something Arising from Disability

[74]The unfavourable treatment identified in paragraph 3.1 of the List of Issues is the decision not to allow the Clamant to continue working remotely in the triage element of her role and/or to deploy her. As the Claimant accepts, the decision not her allow her to continue working remotely in the triage element of her role was a Trust-wide decision and was not specifically made in relation to her (or because of anything to do with her disability). She however submits that the decision to redeploy her was because of something arising from her disability (her inability to undertake the patient-facing element of the role).

[75]The Tribunal accepts that the Respondent’s decision, taken by Ms Randall and Mr Cooke, to redeploy the Claimant was unfavourable treatment. A decision was taken which was adverse to the Claimant and the case of Williams can therefore be distinguished.

[76]The reason for redeployment was the fact that the Claimant was (or at least said that she was) unable to carry out all the elements of the JET role, including faceto- face duties. The Tribunal accepts that this was something arising from her disability, in particular in light of the evidence referred to above when considering substantial disadvantage in relation to the claim for failure to make reasonable adjustments.

[77]It therefore falls to the Tribunal to consider whether the treatment was a proportionate means of achieving a legitimate aim. The aim relied on by the Respondent as set out in paragraph 3.3 of the List of Issues is effective management of the Respondent’s resources.

[78]Paragraph 5.21 of the EHRC Code of Practice on Employment 2011 states that if an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it would be very difficult for it to show that the treatment was objectively justified. In light of our findings about the reasonableness of the adjustments relied on, the Tribunal is of the view that the treatment is not objectively justified.

[79]Therefore, this head of claim succeeds. Case Number: 3313608/2022 14 Time Limit under the Equality Act

[80]The Tribunal is of the view that the decision not to permit the Claimant to stay in the triage role was effectively made by 15 March 2022 (and on the Respondent’s own case was made by 1 June 2022). Although the claim was made outside the primary three month time limit, it is just and equitable to extend time as the Claimant did not know at the time, and more particularly until disclosure was given, precisely when the decision was made and there is no prejudice to the Respondent beyond the fact of having to face the claim, for example it is not and cannot be suggested that the quality of any evidence was reduced by the claim having been made shortly outside the primary time limit. Constructive Unfair Dismissal

[81]Turning to the claim for constructive unfair dismissal, the Claimant alleges that the failure to make adjustments to her existing role, insisting that her only option was redeployment and not allowing her to continue to work remotely in the triage element of her role, breached the implied duty of trust and confidence.

[82]In Malik v BCCI, Lord Nicholls stated “Earlier, I drew attention to the fact that the implied mutual obligation of trust and confidence applies only where there is "no reasonable and proper cause" for the employers conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the implied obligation”. We note that the word seriously is emphasised in the judgment of the House of Lords itself.

[83]Although Lord Nicholls here considered conduct which is calculated to destroy or seriously damage the relationship of trust and confidence, his words also apply to conduct which is likely to have that effect.

[84]The Tribunal notes that the Respondent (in common with many employers) was trying to get the Claimant, indeed all staff, back to working face-to-face rather than remotely following the change in the government’s advice shielding in October 2021. This was to provide a better service to users, including acutely unwell patients. The Clamant had been working in the face to face element of her role before shielding started in March 2020. The decision to redeploy the Claimant, which we agree can be characterised as an insistence on redeployment, was an attempt to avoid dismissing the Claimant, a very highly-regarded employee. For these reasons, although the Tribunal is of the view that the Respondent should have done more to consider at the particular circumstances of the Claimant (and notes that it has found that the claims for discrimination are well made), the Tribunal does not conclude that its conduct was likely to destroy or seriously damage the relationship of trust and confidence. It is in any event it is of the view that there was reasonable and proper cause for its conduct, i.e. a desire for staff to return to work in the interest of service users.

[85]Therefore the claim for constructive unfair dismissal fails. For completeness we note that had we found that there was a breach of the implied term we would have Case Number: 3313608/2022 15 found that the Claimant resigned partly as a result of the Respondent’s conduct, even though there were other reasons for resigning as well ,including her wish to take the role at West Cambridge Federation. However, this issue does not arise in the case.