Ms V Eastwood v Central London Community Healthcare NHS Trust: 3314480/2022

EMPLOYMENT TRIBUNALS

Case No 3314480/2022

Between

Ms V EastwoodClaimant

Central London Community Healthcare NHS TrustRespondent

Before

Employment Judge Alliott

Members

Mr D Sagar

Mr D Bean

Mr Chris Canning (instructed by counsel) for claimant

Mr Alex Shellum (instructed by counsel) for respondent

Date 7 August 2025

JUDGMENT

[1]The claimant’s failure to make reasonable adjustments claims are dismissed.

[2]The claimant was discriminated against on the grounds of her disability by being required to work in excess of her contracted hours to complete administration work. The rest of the claimant’s disability discrimination claims are dismissed.

[3]The claimant was harassed on the grounds of her disability due to Ms Botha making an unfairly critical Occupational Health referral on 9 September 2022. The rest of the claimant’s harassment claims are dismissed.

[4]The claimant was victimised by Ms Botha making an unfairly critical Occupational Health referral on 9 September 2022. The rest of the claimant’s victimisation claims are dismissed.

[5]The claimant’s wrongful dismissal claim is dismissed.

REASONS

[1]The claimant was employed by the respondent as a Diabetes Specialist Dietician from 16 May 2022 until she resigned with immediate effect on 4 November 2022. By a claim form presented on 5 December 2022, following a period of early conciliation from 21 September to 2 November 2022, the claimant presents claims of discrimination arising in consequence of disability (section 15 Equality Act 2010), failure to make reasonable adjustments (Sections 20 & 21 Equality Act 2010), harassment (section 26 Equality Act 2010) and victimisation (section 27 Equality Act 2010). Whilst her unfair dismissal claim was dismissed upon withdrawal, she claims she was constructively unfairly dismissed and that the alleged acts of discrimination, failure to make reasonable adjustments, harassment and victimisation constituted breaches of her contract of employment (implied term of mutual trust and confidence). The claimant claims discriminatory constructive dismissal and wrongful dismissal.

The issues

[2]There is an agreed list of issues as follows: “A. Disability

The issues

[1]The Respondent accepts that the Claimant was disabled at the relevant time by reason of ADHD.

[2]Did the Respondent have actual or constructive knowledge of these disabilities at the relevant time? B. Failure to make reasonable adjustments – s20 and s21 Equality Act 2010

[3]Was or would the Claimant be placed at a substantial disadvantage, in comparison with persons who are not disabled, by being required to perform her duties without the provision of the NA recommendations, set out at paragraph 7 of the Grounds of Claim? The substantial disadvantage relied upon by the Claimant (are together or in the alternative) the Claimant had difficulty with written language, processing information, organising thoughts, prioritising and planning, memory, concentration and she struggled to maintain good mental health without the NA recommendations.

[4]If so, did the Respondent know or could the Respondent reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage(s) in question?

[5]If so, was the provision of the NA recommendations (particularised at § 7 of the GoC) a step which it was reasonable to take to avoid that substantial disadvantage? The Claimant’s case is that the aids the NA recommended amounted to auxiliary aids or alternatively amounted to reasonable steps to allow the Claimant to perform her duties. In respect of the reasonable adjustments claim, the PCP relied upon is the Claimant being required to perform her duties without the NA recommendations.

[6]If so, did the Respondent fail to take that step? In particular:a. by the Respondent failing to provide the items A to J, O and P in a reasonable time;

b. and / or by the Respondent failing to provide the items K to N at all?

c. C. Discrimination because of something arising in consequence of disability – s15 EA 2010

[7]Did the Respondent know, or could it have reasonably been expected to know, that the Claimant had the disability relied upon, namely ADHD, at the relevant time.

[8]The Claimant relies upon her requirement for the items set out in the NA report as ‘something arising’ in consequence of her disability.

[9]Did the Respondent do the alleged acts/omissions:a. A failure to provide the items set out in the ‘NA report’, in reasonable time or at all;

b. Failure to plan or coordinate the provision of the items;

c. Required the Claimant to project manage, arrange, and chase, the items for herself;

d. Ignored the Claimant’s document provided multiple times by email and shared on OneDrive containing a list of the items, suppliers, and prices;

e. Failed to consult with the Claimant as to why the items were required and how they would best be provided;

f. Failed to respond to the first or second grievance;

g. Required the Claimant to work in excess of her contracted hours to complete administration work;

h. By Mr Lund, demonstrated hostility to the Claimant at the meeting on 4 August 2022;

i. By Ms Botha, dismissed the Claimant’s disability, minimised the failure to provide the items or comply with policy, and proposed her demotion, on 5 September 2022;

j. By Ms Botha, made a dishonest and unfairly critical Employee Health referral on 9 September 2022.

[10]If so, was this unfavourable treatment of the Claimant because of “something arising” in consequence of her disability, as set out at point 2 above?

[11]If so, can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? a. The legitimate aims relied upon by the Respondent are the need to protect the health and safety of its staff, the need to follow relevant procedures and the need to ensure the efficient running of the service. The Respondent’s case is that its actions were a proportionate means of achieving these aims because they were appropriate, necessary and reasonable actions in the circumstances. D. Harassment on the grounds of disability – s26 EA 2010

[12]Did the Respondent subject the Claimant to unwanted conduct related to disability as set out below?a. Mr Lund demonstrating hostility to the Claimant at the meeting on 4 August 2022;

b. Ms Botha dismissing the Claimant’s disability, minimising the failure to provide the items or comply with policy, and proposing her demotion on 5 September 2022;

c. Ms Botha making a dishonest and unfairly critical occupational health referral on 9 September 2022.

[13]If so, did that conduct have the purpose or effect of—a. violating the Claimant’s dignity, or

b. creating a hostile, degrading, humiliating or offensive environment for the Claimant?

[14]Was it reasonable for the conduct to have that effect? E. Victimisation – s27 EA 2010

[15]Did the Claimant:a. Provide the NA report on 19 May 2022;

b. Raise a grievance on 1 August 2022;

c. Formally request reasonable adjustments on 1 August 2022; and

d. Raise a second grievance on 11 October 2022.

[16]If so, were these protected acts?a. The Respondent admits that the Claimant, as a matter of fact, did each of the acts.

b. The Respondent admits that (b), (c) and (d) were protected acts.

c. The Respondent does not admit that (a) was a protected act.

[17]If so, was the Claimant subjected to the following treatment as a result of either/all of the above protected acts:a. Failing to implement the NA report recommendations, in time or at all;

b. Requiring the Claimant to project manage, arrange, and chase, the items for herself;

c. Failing to consult with the Claimant as to why the items were required and how they would best be provided;

d. Failing to respond to the first or second grievance;

e. Requiring the Claimant to work in excess of her contracted hours to complete administration work;

f. By Mr Lund, demonstrating hostility to the Claimant at the meeting on 4 August 2022;

g. By Ms Botha, dismissing the Claimant’s disability, minimising the failure to provide the items or comply with policy, and proposing her demotion on 5 September 2022;

h. By Ms Botha, making a dishonest and unfairly critical Employee Health referral on 9 September 2022; and

i. Failing to engage effectively and properly with the Claimant’s Data Subject Access Request dated 18 October 2022.

[18]If so, which if any of the treatment found by tribunal amounted to detriments? F. Wrongful Dismissal

[19]Did the Respondent fail to pay notice pay to the Claimant which was due under her contract of employment? G. Remedy

[20]If the Claimant is successful in any of her claims:a. What is the appropriate award for injury to feelings?

b. Was any proved discrimination a cause of the Claimant’s resignation on 4 November 2022, and / or did the Claimant’s resignation amount to a failure to mitigate her loss?

c. Has the Claimant suffered any financial loss due to the unlawful treatment? If so, what is the appropriate award of compensation? And should an award of aggravated damages be made?

d. What, if any, recommendations ought the Tribunal to make?

e. Should there be an uplift for any failure to follow any relevant ACAS code, and in this respect the Claimant reserves the right to rely upon the Respondent not offering an appeal against the rejection of her second grievance outcome?” The law 3. Both the claimant (11 pages) and the respondent (9 pages) made extensive submissions on the law. We record that we have read and taken into account those submissions which are not reproduced here. 4. Section 20 of the Equality Act 2010provides:- “20 Duty to make adjustments … (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. … (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.” 5. Section 21 of the Equality Act 2010 provides:- “21 Failure to comply with duty

(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.” 6. Section 15 Equality Act 2010 provides:- “15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” 7. Section 26 Equality Act 2010 provides:- “26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.” 8. Section 27 Equality Act 2010 provides:- “27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.” The evidence 9. We were provided with a hearing bundle of 2,519 pages. During the course of the hearing this increased to 2,540 pages. 10. We had witness statements and heard evidence from the following:

5.1 The claimant (statement 84 pages long).

5.2 Mr Athikur Choudhury, Lead Diabetes Specialist Nurse at the time.

5.3 Mr Gideon Lund, Clinical Business Unit Manager at the time. He was the line manager of Ms Esther-John Charles.

5.4 Ms Sandra Da Silva, Diabetes Lead Administrator.

5.5 Ms Esther John-Charles, Dietetic Lead and the line manager of Ms Tronel Botha.

5.6 Ms Tronel Botha, Diabetes Specialist Dietitian and the claimant’s line manager. 11. Both parties provided written closing submissions. The claimant’s closing submissions are 45 pages long and the respondent’s closing submissions are 59 pages long. The facts 12. The claimant was diagnosed with ADHD combined type in May 2021. As per the list of issues the respondent accepts that the claimant was disabled at the relevant time by reason of ADHD. 13. The claimant applied for the role of Band 6 Diabetes Specialist Dietician on 9 February 2022. The application form provides details of the claimant’s employment history from 2012 as a student onwards. Between March 2017 and December 2019 the claimant worked for the Whittington Hospital for two years nine months at Grade 7 as a Specialist Diabetes Dietitian. From January to August 2020 the claimant worked for the respondent as a Diabetes Specialist Dietician for eight months. The claimant had then moved to Birmingham as a Senior Primary Care Dietician at Grade 6 from 1 September 2020 until 9 February 2022. 14. In the supporting information section the claimant volunteered the following information:-

14.1 “In 2018, I completed a Masters in food policy”

14.2 “I remain calm under pressure and often find myself able to take a step back to look at situations with a fresh perspective in order to complete the task within deadline. I would describe myself as self-motivated and able to work autonomously but also very much enjoys working as part of a team; working flexibly and adapting to change as it arises.”

14.3 “Throughout my career I have learnt how to manage my workload effectively and prioritise my tasks, planning my work long-term and also at the beginning of each week, and each day; re-prioritising where necessary. I effectively organise my time to incorporate clinics, group education, CPD, service development and non-clinical duties.”

14.4 “I have excellent oral and written communication skills. I use a range of communication skills eg communicating via language and sign interpreters, writing in patient notes, reports and developing patient resources.”

14.5 “I possess excellent communication skills enabling me to work well within a team. I regularly deliver talks, training and supervision to my professional dietetic colleagues to upskill and update on best practice, evidence and guidelines. The claimant is clearly very able and had worked at Grade 7 in the past prior to her diagnosis with ADHD. 15. The application form ends with a declaration that the information contained in the application was to the best of the claimant’s knowledge correct and complete. 16. In the Equal Opportunities section of the application form the claimant indicated that she considered she had a disability. 17. On 3 March 2022, the claimant was interviewed by a Mr Jones, Interim Dietetic Lead and Recruiting Manager, and Tronel Botha. She was verbally offered the job and her evidence is that she disclosed to Mr Jones that she had ADHD at that time. 18. The claimant was sent a letter dated 3 March 2022 offering her the job and on the acceptance form she indicated that she had a health condition or disability which might require special adjustments to her work or at her place of work. 19. On 10 March 2022, the claimant submitted an Employee Health Questionnaire to the respondent’s Employment Health Service. The claimant disclosed that she had ADHD neurodevelopmental disorder. The form sets out a range of adjustments that she was seeking. 20. On 16 March 2022, the claimant had a telephone pre-placement assessment with Ms Sonia Majid, Occupational Mental Health Nurse. In a document titled “OH Letter (final clearance)” the following is recorded by Ms Majid:- “The candidate has been assessed as: Fit for proposed employment with adjustments. Ms Eastwood informed me she has ADHD neurodevelopmental disorder, and she requires workplace adjustments. She advised that she has already contacted Access to Work but her assessment is pending. It is recommended that a display screen equipment (DSE) learning and assessment on Cardinus should be completed. A DSE assessment may assist in determining what additional support Ms Eastwood needs when she is carrying out desk-based tasks. Please find below suggestions from Ms Eastwood to support her with her condition “ADHD coaching during induction/probationary period to put in place work-based strategies for managing new workload and new IT systems. Written notes to supplement verbal discussions and actions in time allocated. Voice to text software to aid in completing clinical admin in same time allocated as colleagues. The opportunity to access quiet space to complete patient related admin or project work with minimal distraction (and/or sound cancelling headphones, desk away from others if working in open plan office). Licence for use of office 365 software to use apps to aid in organisation, prioritising and communicating my workload.”

The facts

[21]During this time, the claimant was progressing her Access to Work application. On 4 April 2022 Tronel Botha was sent a leaflet by Access to Work and she responded as follows:- “Haven’t spoken to Virginia yet. Her start date 16 May, it may be best to have this discussion at a later date, when I have a better understanding of her needs and requirements.

[22]On 25 April 2022 Tronel Botha attended a meeting with the claimant’s Access to Work advisor for advice on the claimant’s ADHD and to discuss any reasonable adjustments required.

[23]On 28 April 2022 Tronel Botha emailed Esther John-Charles asking if she could order some items such as headphones, an extra screen and voice to text software. On the same date Esther John-Charles replied:- “Unfortunately I don’t know the process for Access to Work. Please go ahead and order what is required.”

[24]On 9 May 2022, the DWP approved the claimant’s application for funding and Access to Work emailed Tronel Botha setting out 15 workplace adjustments that had been recommended. The email indicated that once finalised the relevant documentation would be sent out and that the respondent would receive a letter and copies of the quotes and suppliers list for the recommended equipment along with claim forms to claim back any costs.

[25]The claimant started work on 16 May 2022.

[26]We find that the respondent did have actual knowledge of the claimant’s disabilities at all relevant times .

[27]The statement of the principal terms and conditions of employment includes the following:- “12 Contracted hours Your contracted hours (exclusive of meal breaks) for this appointment are as set out in number 1. Standard full time hours are 37.5 hours per week. The Trust may require a change in your hours of work to meet the needs of the service. … Staff should not normally work in excess of an average 40 hours per week over the agreed reference period of 26 weeks unless there are exceptional circumstances…”

[28]We have been provided with a number of policy documents.

[29]The Orientation (Induction and Probation) Policy contains the following:- “Line managers  Ensure that, if an employee has disclosed a disability or long-term condition, they are provided with reasonable adjustments to undertake their role.”

[30]Appendix A includes:- “Reasonable adjustments to enable staff with disabilities or health conditions to perform to agreed objectives during the probation period must be identified and implemented.”

[31]The Equality, Diversity and Inclusion Strategy includes:- “In response to feedback from staff that reasonable adjustments and capability reviews could be done better: “Review and improve the support and guidance given to line managers when undertaking capability reviews for disabled staff in a timely manner. We will aim to ensure managers acknowledge requests for reasonable adjustments within two working days, hold meetings to discuss the required reasonable adjustment with the concerned staff member within five working days and process the request within fifteen working days.”

[32]The Disability Policy and Code of Practice provides as follows: “4.2 Managers have a responsibility to:  Act as the first line of contact if an individual employee wishes to discuss their disability and any implications of /on working practices. ...  Make arrangements to acquire and implement the agreed reasonable adjustments including any equipment, auxiliary aids and adjustments to working patterns and to fund them from their local budget and then to arrange for full or partial reimbursement through the agreed Access to Work grant.”

[33]The policy has a flow chart detailing the reasonable adjustments process for both potential and existing employees. The pre-employment flow chart ends:- “Adjustments should be agreed between employee and manager based on the report from Employee Health/ Access to Work and put in place with an appropriate timescale.”

[34]For existing employes the flow chart includes the following:- “Line manager responsible for organising purchases and deliveries” And “Line manager responsible for implementation of equipment.”

[35]The policy also includes at Appendix C how to deal with Access to Work grants for staff with disabilities. A flow chart indicates that items are ordered by the line manager.

[36]On 19 May 2022, the claimant sent an email to Tronel Botha stating:- “I have attached the full reports from my ATW assessment, this gives links to the products/services which the grant covers. I am happy for you to share these documents with Esther and HR. I am keen to be able to get additional screens set-up, wireless headphones (which will work with work mobile/laptop) and supporting software installed as soon as reasonably possible to help me get through the induction training and documents in a timely way. In order for me to use the software to support admin in clinic I will require a HDMI cable to connect with external screens (which isn’t included in the document).”

[37]The Needs Assessment Report sets out 15 recommendations (the HDMI cable was not specified). Including the cable, the 16 recommendations referenced in the list of issues have been identified by a letter and are as follows:- “A Dragon Professional speech recognition software. B Wireless headset. C 2 x 2 hours technical training for Dragon. D Texthelp Read and Write. E 1 x 2 hours training for Texthelp Read and Write. F Idea Mapper Pro. G 1 x 2 hours technical training for Idea Mapper Pro. H Laptop. I HDMI cable. J 8 x 2 hours coping strategy training. K Instructions written in Word. L Summary meeting minutes and actions. M Extra time to complete admin tasks. N Allocated desk. O Computer monitor. P Micro Break: Mind.”

[38]The claimant accepted that she was provided with a laptop from the beginning of her employment. In addition, the claimant was supplied with Micro Break Mind on 6 July 2022 ,and it was installed by 15 July 2022. The claimant withdrew this allegation during the course of cross examination saying that Micro Break Mind was not useful at all. Consequently, the claimant is not alleging a failure to provide auxiliary aids and/or make reasonable adjustments as regards H and P.

[39]On 23 May 2022 Sandra Da Silva sent the ATW suppliers and quotes document to Athikur Choudhury who approved the ordering of the equipment on the same day. Further, Athikur Choudhury states in his witness statement:- “Also on 23 May 2022, Ms Botha sent me a “working from home equipment request” for Ms Eastwood, requesting that I sign and approve the request. I reviewed the form and noted that we would have had some of the items requested already stored around the sites. As such, it was possible that we wouldn’t need to order all of the items. I spoke to Ms Da Silva and we agreed that she would check to see what items the Trust already had and update me. I explained that once this had been done, I would be happy to authorise the remaining items.”

[40]Hence, from the outset, it was the intention of the respondent to supply all the auxiliary aids recommended in the Needs Assessment.

[41]However, as the Needs Assessment report itself states, “recommendations are simply a guide to achieve an optimal level of support for Virginia”. In order to establish a legal obligation on the respondent to provide any auxiliary aid our first step is to identify the nature and extent of the substantial disadvantage that the claimant would be put at but for the provision of the auxiliary aid. The mere fact that the respondent agreed to provide the aids does not establish that.

[42]The failure to make reasonable adjustments claim is put in the alternative to the auxiliary aids claim. The PCP alleged is: “The claimant being required to perform her duties without the NA recommendations.”

[43]The substantial disadvantages relied upon by the claimant are (together or alternatively) that the claimant had difficulty with written language, processing information, organising thoughts, prioritising and planning, memory, concentration and she struggled to maintain good mental health, without the NA recommendations.

[44]The respondent makes a broad submission that the claimant has failed to demonstrate that she suffered a substantial disadvantage of “difficulty with written language.”

[45]In the circumstances we have looked at the medical evidence that we have.

[46]A Diagnostic Assessment Report from 2007 by an Educational Psychologist contains the following:- “Summary Virginia presents as a student with reasonably well developed verbal comprehension abilities. The other areas of her cognitive functioning are not as well developed. It is important therefore to note that Virginia does have some weaknesses within her cognitive abilities and her reading fluency and comprehension are relatively weaker areas of her literacy skills. However, overall current assessment on this occasion does not indicate that Virginia has specific learning difficulties of a dyslexic nature.” And “Conclusion Current assessment using the Wechsler scales indicates that Virginia has well developed verbal comprehension abilities and that these are in the high average range. Virginia’s perceptual organisation, working memory and processing speed abilities are significantly weaker areas of her functioning being within the low average range. Virginia’s reading is assessed as being within the high average range. On more complex text her reading rate is slower than average and she struggles to fully extract information. Virginia’s spelling is within the mid average range and her writing speed is average. Virginia presents as a student with reasonably well developed verbal comprehension abilities. The other areas of her cognitive functioning are not as well developed. It is important therefore to note that Virginia does have some weaknesses within her cognitive abilities and her reading fluency and comprehension are relatively weaker areas of her literacy skills. However, overall current assessment on this occasion does not indicate that Virginia has specific learning difficulties of a dyslexic nature.”

[47]We have a medical report from a consultant psychiatrist dated 7 June 2021 which diagnosed the claimant with ADHD. Most of the report consists of the claimant’s presenting history. It contains the following:- “Unable to pay attention and not able to stay concentrated for more than a few minutes, not able to focus on task in hand, not able to follow instructions and gets easily overwhelmed. She is easily distracted by both internal thoughts and external events. She is struggling to be organised both at work and at home. She enjoys her clinical work but finds administrative tasks difficult and struggles to complete them on time.”

[48]We accept the claimant’s evidence that she had difficulty with the written language, which is supported, to an extent, by the medical evidence. In particular, we accept that because of her disability it took her longer to produce written documents. As such, we find that the fact that the claimant stresses her competence with written language in her CV and clearly produced long and detailed emails does not detract from that conclusion.

[49]We find that the auxiliary aids of Dragon Professional (A), Text Help (D) and Lead Mapper Pro (F) and Training on the same (C, E and G) were auxiliary aids without which the claimant would be put at a substantial disadvantage compared with non-disabled colleagues. We accept the view expressed in the Needs Assessment Report as follows:- “This speech recognition software will provide the freedom to write and control the computer with voice commands. With perfect spelling and audio feedback it will enable quick access to written work and easily enables professional, correctly spelled documents.”

[50]We find that the nature and extent of the disadvantage without this equipment would be substantial.

[51]We find that the claimant did need a headset and that without it she would be put at a substantial disadvantage. The claimant had her own headset and wired headsets were available from the respondent. However, we do not find that the claimant was put at a substantial disadvantage due to not having a wireless headset or, indeed, a noise cancelling headset. The recommendation for a wireless headset is on the assumption that the claimant would work in an open plan office whereas the reality was that the claimant would work on her own with a patient in a clinical room. The only other work setting the claimant had was at home. Whilst a wireless headset may have been desirable, we find that having to work with a wired headset did not place her at a substantial disadvantage, especially as an interim measure.

[52]Consequently, we find that there was no failure to provide the auxiliary aid and/or make a reasonable adjustment of a wireless headset.

[53]Item J is 8 x 2 hours coping strategy training sessions. We have approached this issue on the basis that it is an auxiliary service. The evidence placed before us shows that by 12 October 2021 the claimant had attended five out of six selffunded ADHD coaching sessions.

[54]In his closing submissions, Mr Shellum, on behalf of the respondent, references disclosure that apparently took place after the hearing had concluded on the final day. Reference is made to page numbers that we do not have. This disclosure was consequent upon the claimant stating in cross examination that she had also attended a course of three coaching sessions in 2022. It is submitted to us as follows:- “Disclosure provided at 17.18pm on 14 April 2025, the last day of the hearing, demonstrates that the claimant attended a cycle of career coaching from “Exceptional Individuals” between 7 February 2022 – 28 March 2022, shortly before the respondent employed the claimant. Exceptional Individuals is an organisation which provides “neurodiversity consulting, recruitment and employment support to employers and individuals with dyslexia, dyspraxia, ADHD and autism. It is an organisation which has a specific focus on assisting neurodivergent people, including those with ADHD. The coaching is said to cover topics such as “work/life balance, confidence building, strengths discovery, and building resilience.”

[55]The claimant did not inform Access to Work that she had already had this training, hence, no doubt, why it was recommended. Given that the claimant had already had two courses of this training, we find that the non-provision of further coaching did not put the claimant at a substantial disadvantage. As such, we find that not providing this training was not a failure to provide an auxiliary service and/or make reasonable adjustments.

[56]Auxiliary aid N is an Allocated desk. The Needs Assessment report puts it as follows: “It is suggested that Virginia is provided with an Allocated desk where she is able to set up her equipment to reduce feelings of stress and overwhelm about having to find a desk. It will also enable her to set up her monitor and equipment permanently without having to constantly adjust things, wasting more time in her day.” This is predicated on the assumption that “Virginia will be working in a shared open plan office…”

[57]The claimant worked from home three days a week and, as such, had an allocated desk there.

[58]The evidence that we heard was that the nature of the claimant’s work at the hospital was that she would be allocated a clinic room where she could have private consultations with patients. As such, there was no need for her having to find a desk. We find that setting up her equipment would have been a matter of moments. Further, it was not feasible within the hospital to allocate the claimant a permanent desk. The clinic rooms were used by others on a regular basis. We find that not providing the claimant with an allocated desk did not place the claimant at a substantial disadvantage compared with non-disabled individuals.

[59]Auxiliary aids K, L and M are “Instructions written in Word,” “Summary meeting minutes and actions” and “Extra time to complete admin tasks.” We find that due to poor memory, instructions in a written format and minutes of meetings were auxiliary aids without which the claimant would be put at a substantial disadvantage compared with non-disabled individuals. In addition, we find that not being given additional time to complete admin tasks pending the provision of auxiliary aids, did put the claimant at a substantial disadvantage compared with non-disabled colleagues in that it took her longer to complete those admin asks.

[60]Items O and Item I (the cable) are the provision of a computer monitor for the claimant’s home working. We find that without this auxiliary aid the claimant would be put at a substantial disadvantage compared with non-disabled colleagues. The claimant’s poor concentration meant that she required the use of two screens.

[61]Consequently, we find that the duty to provide auxiliary aids arose in relation to the following:-57.1 A and C: Dragon Professional and training.

57.2 D and E: Text Help Read and training.

57.3 F and G: Idea Mapper and training.

57.4 K: Instructions written in Word.

57.5 L: Summary meeting minutes and actions.

57.6 M: Extra time for admin tasks.

57.7 I and O: Computer monitor and cable.

[62]As far as item K is concerned, the claimant accepted in cross examination that instructions contained in an email were sufficient. We found the evidence on this issue to be vague. In her witness statement the claimant puts it as follows:- “To help me prioritise and plan I suggested consolidating instructions in a centralised virtual to do list on One Drive. Ms Botha did not engage with the list, sending her instructions in further emails, copying in others to provide the rest of the details.”

[63]The claimant gives as an example an email dated 29 April 2022 from Tronel Botha to the claimant setting out her induction timetable in the email. The allegation is that the respondent failed to provide this auxiliary service at all. It is clear to us that many instructions were issued to the claimant in emails from the start of her employment. Consequently, we do not find that there was a failure to provide this auxiliary aid and/or reasonable adjustment.

[64]Auxiliary service L is summary meeting minutes and actions. We have been provided with many examples of the weekly dietetic meeting minutes which contain actions. In cross examination the claimant accepted that she received the minutes and actions for the team meetings. The claimant’s complaint was that she did not receive minutes for meetings between her and her manager. Whilst it is conceded that there weren’t any minutes of a meeting between the claimant and Tronel Botha on 17 June 2022, there are notes from two meetings held on 27 July 2022. Again, the allegation is that there was a failure to provide meeting minutes and actions at all. Clearly there was substantial compliance. In our judgment, the lack of meeting notes from one meeting did not constitute a failure to provide auxiliary aid and/or to make reasonable adjustments.

[65]The claimant only began holding clinics on 30 May 2022.

[66]On 7 June 2022, the claimant sent an email to Sandra Da Silva asking for an update on workplace adjustments and induction. Sandra Da Silva replied that she had been away for the previous week but was on the procurement process with the authorised suppliers so that she could order the items.

[67]On 15 June 2022, the claimant was informed that there was a monitor, mouse and headphones available at Lisson Grove which she would have to sign for when she collected them. The claimant responded saying that she understood they would be couriered to her home address.

[68]The claimant declined to collect the monitor, and, in due course, the respondent ordered a new monitor and cable and there were difficulties in delivering it to the claimant’s address until October 2022.

[69]We note that the claimant did agree to collect the mouse and keyboard. In our judgment it would have been reasonable for the claimant to pick up the monitor and we have no doubt a cable would have been made available. The claimant does not have a physical impairment and a 21 inch monitor could easily have been transported back to her home in either a backpack or hand luggage equivalent. As such, we do not find that there was a failure to provide this auxiliary aid and/or make this reasonable adjustment.

[70]There was a meeting between the claimant and Tronel Botha on 17 June. It is common ground that following that meeting the claimant was allocated an extra 30 minutes admin time on clinic days by reducing the claimant’s clinical workload to one follow-up patient per clinic day. The claimant was already allocated 90 minutes admin time per clinic day and consequently was accorded an extra 33% admin time. Once again, the allegation in the list of issues is that the respondent failed to provide item M at all. Clearly some extra time was allowed. The evidence was that the claimant was, in effect, given a 70/30 split which would normally be afforded to a Band 7 and not a Band 6.

[71]We do not find that there was a failure to provide this auxiliary service and/or make this reasonable adjustment.

[72]As far as the software is concerned, the Text Help was downloaded on 5 July and the claimant had the training on 8 July 2022. As far as the Idea Mapper is concerned, the software was downloaded on 15 July and the claimant had the training on 27 July 2022. As far as the Dragon software is concerned, it was downloaded on 15 July 2022. Although there were efforts to procure the training which began in June 2022 it was not available prior to the claimant’s resignation.

[73]We heard a lot of evidence and were taken to a lot of documents dealing with the procurement process for the three items of software. It is clear to us that the respondent’s procurement process was somewhat complex and that there were avoidable delays in obtaining the software. In particular, no one person took ownership of the process and mistakes were made. We do not set out here the whole process because we have looked at the issue holistically. We have taken into account that the Text Help and Idea Mapper both had voice-to-text functions and could have been used by the claimant whilst waiting for the Dragon training. The Dragon software itself had a help bar and we heard that there were three online training videos had the claimant wanted to access them.

[74]With the exception of the Dragon software, all the reasonable adjustments that we have found were due had been provided (or were available) by 27 July 2022. We have considered whether the delay in the provision of those reasonable adjustments was unreasonable. The timetable for the supply (availability) of auxiliary aids was therefore as follows: H,K and L, Laptop, written instructions and meeting minutes: from the start: 16 May 2022 I, O, monitor and cable: 15 June 2022 M, extra time: 17 June 2022 D, Texthelp: 5 July 2022 E, Training: 8 July 2022 A, Dragon: 15 July 2022 F, Idea Mapper: 15 July 2022 G, Training: 27 July 2022

[75]We accept that some auxiliary aids could have been provided earlier, especially given the respondent’s own policy timetable. However, given that the claimant only began clinics on 30 May 2022 and had, throughout her career to date, clearly performed at a high level without this sort of range of auxiliary aids, we find that the delays were not unreasonable.

[76]Further, we find that the claimant had reasonable alternatives to the Dragon system pending the provision of training.

[77]We find that the PCP as defined in the list of issues is not made out as drafted. The claimant was not required to perform her duties without all the NA requirements. It would be more accurate to characterise it as being required to perform her duties whilst some of the NA requirements were sourced.

[78]Our findings on substantial disadvantage and delay are the same as for the auxiliary aids claim.

[79]Consequently, the claimant’s claims of failure to provide auxiliary aids and failure to make reasonable adjustments do not succeed.

[80]The respondent accepts that something arising in consequence of the claimant’s disability was her requirement for the items set out in the NA report.

[81]Issues 9 a. and 17 a. are: “A failure to provide the items set out in the NA report, in reasonable time or at all.”

[82]We have found that all but three of the items set out in the NA report were provided within a reasonable time. The only items that were not provided were B, wireless headset, C, Dragon training and J, coping strategy training. To that extent, the facts alleged in issues 9 a. and 17 a. are proved.

[83]Issue 9 b. is: “Failure to plan or coordinate the provision of the items.”

[84]As we have already observed, there was some failure on the part of the respondent to plan or coordinate the provision of the items in that mistakes were made during the course of the procurement process and no one person took ownership of the process. As such, the facts alleged in issue 9 b. are proved.

[85]Issues 9 c. and 17 b. are:- “Required he claimant to project manage, arrange, and chase, the items for herself.”

[86]From the evidence we have seen the claimant was not required to project manage or arrange the procurement of the items. In so far as there was any overall project management, this was undertaken by Tronel Botha, Sandra Da Silva and Esther John-Charles. It was management who were responsible for arranging the procurement. However, it is clear to us that the claimant did chase up the procurement of the items on a regular basis, taking it upon herself to contact suppliers etc and, to that extent, we find that the claimant did project manage the process. Consequently, to that extent, we find the facts alleged in issue 9 c. and 17 b. are proved.

[87]Issue 9 d. is: “Ignored the claimant’s document provided multiple times by email and shared on OneDrive containing a list of the items, suppliers, and prices;”

[88]On 23 May 2022, the claimant sent the ATW suppliers and quotes document to Sandra Da Silva, Tronel Botha, and Athikur Choudhury. On the same day Athikur Choudhury replied:- “I just spoke with Esther and I am happy to approve.”

[89]It is clear to us that the claimant updated the document and sent it to Tronel Botha on 27 July 2022 and 31 August 2022. However, during this period the respondent was taking steps to procure the items. Consequently, we find that the document was not ignored, and the facts alleged in issue 9 d. are not proved.

[90]Issues 9 e. and 17 c. are:- “Failed to consult with the claimant as to why the items were required and how they would best be provided.”

[91]We find that the reason the items were required and how they would be best provided were set out in the Needs Assessment report. As such, we find that there was no requirement on the respondent to consult with the claimant on these issues. Right from the outset the respondent agreed to provide the items. Consequently, we find there was no failure to consult with the claimant and the facts alleged in issues 9 e. and 17 c. are not proved.

[92]Issue 9 f. has been withdrawn by the claimant.

[93]Issues 9 g. and 17 e. are:- “Required the claimant to work in excess of her contracted hours to complete administration work.”

[94]In her grievance dated 1 August 2022 the claimant states:- “I am having to work beyond my paid hours causing me stress and anxiety.”

[95]The claimant accepted that pursuant to her contract of employment she could be expected to work more than her paid hours from time to time but gave evidence that she worked approximately five hours per week extra and that that was weighted towards Monday/Tuesday, the clinic days. There was no formal requirement from the respondent that the claimant worked the extra hours and, indeed, we had evidence that Tronel Botha told the claimant that her clinical notes were too detailed. The transcript of the meeting with Gideon Lund on 4 August 2022 records the claimant as saying:- “She, she tells me that I’m working too hard and that I’m, that I’m taking the long way round.”

[96]Nevertheless, we find that the claimant was required to work extra hours in excess of what could be reasonably expected in order to complete her administration work. The claimant was obviously in her probation period and needed to get the tasks completed. As such, we find the fact alleged in issues 9 g. and 17 e. are proved.

[97]Issues 9 h., 12 a. and 17 f. are:- “By Mr Lund, demonstrated hostility to the claimant at the meeting on the 4th August 2022.”

[98]On 1 August 2022, the claimant put in her first grievance. This was passed to Gideon Lund to investigate/deal with it. Gideon Lund emailed the claimant on 1 August 2022 to tell her that he had booked some time on 4 August 2022 to discuss the grievance.

[99]The meeting was held on 4 August 202. The claimant covertly recorded the meeting on her mobile phone Consequently, we have been provided with a transcript of the meeting. In addition, we heard extracts from the recording.

[100]As set out in the list of issues this is an allegation of general hostility. In the circumstances, as submitted by the respondent, we have approached the complaints about what was said by refence to the pleaded case in paragraph 34 of the claimant’s grounds of claim. The claimant also relies on the tone of the meeting.

[101]Allegation 34(i) is:- “He declined to be guided by the NA report and said it was reasonable to ask her questions instead”

[102]The claimant’s grievance was, in part, that there had been a failure to provide reasonable adjustments. There is no evidence in the transcript of Gideon Lund declining to be guided by the NA report. It is clear that the approach Gideon Lund took was to go through the recommended items from the report with the claimant to see what had been provided and what had not been provided. In those circumstances we find that it was reasonable to ask the claimant questions about the items from the NA report.

[103]Allegation 34(ii) is:- “He accused her of continuously conflating issues.

[104]The transcript records Gideon Lund stating:- “You are conflating one thing into the other constantly.”

[105]On our reading of the transcript it could be said that the claimant was conflating two separate issues, namely whether or not she had been provided the equipment and whether or not she needed the equipment.

[106]Allegation 34(iii) is:- “He asserted that “You’ve got what you need” regarding training to use software. The claimant’s worry about software licenses being revoked based on the email of 27 July 2022 were dismissed by Mr Lund, and he accused the claimant of “trying to find problems.”

[107]When discussing the Dragon software, when the claimant confirmed that she had got it downloaded, Gideon Lund said, “you have got what you need.” It is clear that Gideon Lund was not referring to training.

[108]When the claimant raised a concern about the licence being revoked Gideon Lund said, “So that’s not a problem, Ginny.” We find that that was a reasonable response to the claimant’s concern.

[109]It is correct that Gidon Lund dismissed the claimant’s concern that the licence would be revoked by saying that it was not a problem. It is also correct that five minutes later Gideon Lund said:- “I’m saying you’re trying to find a problem with anything when there are other solutions in the interim until you…”

[110]That was said not in the context of the Dragon Software but in relation to using her own personal headset pending the obtaining of a wireless headset. We do not find that those exchanges were hostile.

[111]Pleaded point 34(iv) is:- “The claimant asked for the meeting to stop so the BDA representative could join, which he did at 13.27.”

[112]This is factually accurate, and we do not find that this was an act of hostility.

[113]Pleaded issue 34(v) is that:- “Mr Lund then boorishly continued to incorrectly summarise what the claimant had said and misconstrue her words, and he asserted that a formal grievance process was painful and would not resolve the issue in a timely manner:”

[114]This is a very generalised allegation in the context of a long meeting (one hour twenty minutes). The transcript does record Gideon Lund stating that going through a formal (grievance) process is painful. He also references that a formal investigation would take two to three months to complete. The context was suggesting that the resolution of matters informally was preferable. It is notable that the claimant’s representative stated, “That makes perfect sense.” Again, the context was the claimant’s concerns about her probation period. We find that Gideon Lund was not acting boorishly or incorrectly summarising what the claimant had said or misconstruing her words. Again, this was a long meeting where a great deal was said. We find that Gideon Lund was not acting in a hostile manner.

[115]Pleaded issue 34(vi) is that:- “He suggested that the cause of the problems was not the ADHD: “What if the stuff that’s happening is not the ADHD?”

[116]It is correct to say that Gideon Lund did say “But what if the stuff that’s happening is not the ADHD?” The context of this remark is a general discussion about ADHD and the effects it may be having in so far as the claimant was concerned. We find that this was not hostility from Gideon Lund.

[117]Having heard some extracts from this meeting it is clear to us that both the claimant and Gideon Lund were expressing themselves, on occasions, forcefully. There were numerous occasions when each of them was interrupting the other and talking over the other. For a large part of the meeting the claimant had her trade union representative present (by telephone).

[118]We find that Gideon Lund did not demonstrate hostility to the claimant at the meeting and, consequently, the facts alleged in issues 9 h. 12 a. and 17 f. are not proved.

[119]Issues 9 i., 12 b. and 17 g. are:- “By Ms Botha, dismissed the Claimant’s disability, minimised the failure to provide the items or comply with policy, and proposed her demotion, on 5 September 2022;”

[120]Again, we have a covert recording of the conversation. As regards the allegation of demotion, the following is recorded:- “Tronel Botha: Yeah, it sounds like you need to go back to Bank 5, like what they do with the Band 5 when you’ve got morning clinic and then the afternoon you’ve got – Ginny Eastwood: Sorry, are you saying that I … Sorry, Tronel, I just need to understand what you’re saying there. Are you telling me that I need to work at a Band 5 level? Tronel Botha: No, what I’m saying is what we do normally with Band 5s or for the nurses as well, we , we, they do a morning clinic and when they’ve got the whole afternoon, for, for their admin. We won’t change your banding or anything. I’m just saying that might, might be needed in the meantime until you get your adjustments.”

[121]It is quite clear to us that Tronel Botha was not proposing to demote the claimant but merely suggesting that she work the same shift pattern as Band 5s until she got her adjustments. It is fair to say that there is an exchange when they are discussing the delays in the provision of some equipment where Tronel Botha says “That’s life, isn’t it? Ginny, that’s life (laughter).” The fact of the matter is that there were delays in the provision of some of the claimant’s auxiliary equipment. However, we find that the overall tone of this hour and a half meeting was not such that Ms Botha was dismissing he claimant’s disability or minimising the failure to provide the items or comply with policy. Consequently, we find issues 9 i., 12 b. and 17 g. are not proved.

[122]Issues 9 j., 12 c. and 17 h. are:- “By Ms Botha, made a dishonest and unfairly critical Employee Health referral on 9 September 2022.”

[123]Tronel Botha completed a managers referral form to Employee Health Service which was submitted on 9 September 2022. The metadata suggests that it may have been begun being drafted on 7 September 2022. The form has a manager’s checklist which includes confirmation that the manager has discussed the referral with the employee and made the employee aware of the potential outcomes and that the employee has been given a copy of the referral form. Tronel Botha entered an X against both of those boxes but did not carry out those actions. We have considered whether that was dishonest or merely poor practice. When the claimant requested a copy of the referral form on 14 September 2022 she was readily provided with one. Tronel Botha’s evidence to us was that she intended to comply with those actions when she was drafting the document. In our judgment, there has to be cogent and compelling evidence if an allegation of dishonesty is made. We do not find that Tronel Botha was dishonest in making these errors and we find that it was probably just poor practice form filling.

[124]We have gone on to consider whether the contents of the referral were unfairly critical of the claimant. The reason for absence is given simply as “ADHD” albeit that there is a reference to her fit note signing her off work until 12 October 2022 due to work related stress caused by reasonable adjustments still not put in place after 12 weeks. The referral is to assess her fitness for current post. There are references to the claimant refusing to attend Wednesday meetings, finding it exceptionally hard if there is any change in a time of meeting and the claimant struggling with flexibility and change. The referral was revised and resubmitted to Occupational Health on 25 October 2022 and the revised referral is, in our judgment, in significantly more sympathetic terms. We have concluded that the referral form completed on 9 September 2022 was unfairly critical of the claimant and, consequently, the fact alleged in issues 9 j., 12 c. and 17 h. are proved.

[125]Issue 17 d. is:- “Failing to respond to the first or second grievance”

[126]On 1 August 2022, the claimant submitted her first grievance. Gideon Lund was requested to deal with the grievance. As already recorded Gideon Lund arranged the meeting with the claimant on 4 August 2022. It was Gideon Lund’s intention to try and deal with the grievance informally. We note that the Acas Guide on Discipline and Grievances at Work (2020) states:- “Employees should aim to settle most grievances informally with their line manager.”

[127]The transcript of the meeting on 4 August 2022 confirms that the informal resolution of the grievance was that Gideon Lund would fix the issues, get the auxiliary aids working and making sure it got delivered and that the claimant’s probation would be extended if necessary. It was left open to the claimant to consider whether she wanted to continue with the formal grievance.

[128]We find that the respondent did respond to the claimant’s first grievance.

[129]On 11 October 2022, the claimant submitted her second grievance.

[130]On 26 October 2022 Phillipa Johnson, Director of Operations, emailed the claimant as follows:- “Huge apologies for the delay in response. I acknowledge receipt of the grievance however the process is slightly complicated as I am not Gideon’s line manager. He is line managed by Jo Davis CBU Manager. However Jo Davis was on sick leave when your grievance was submitted. I have also been on annual leave and return to work tomorrow. I will get back in touch with you as soon as possible.”

[131]On 4 November 2022, the claimant resigned with immediate effect.

[132]The respondent’s Grievance Policy provides as follows:_ “5.2.20 If an individual is no longer employed by the Trust but submits a complaint either before or after the leave, they no longer have access to this policy or procedure. However Trust should look into the complaint to ensure serious issues are not being ignored and provide an outcome to the individual.”

[133]On 20 January 2023, the claimant was emailed as follows:- “I am getting in touch with you as I have been asked to investigate the grievance that you raised whilst you were employed at CLCH. I understand that you have since left the organisation, but do let me know if you would like to take part in the investigation process. I have enclosed an invitation letter for you which proposes a meeting date and time along with further information.”

[134]On 30 January 2023, the claimant replied as follows:- “I do not believe it is reasonable or necessary for me to participate in this meeting for the following reasons.”

[135]Notwithstanding the claimant’s refusal to be interviewed, the grievance was dealt with and there is an outcome letter dated 9 May 2023.

[136]The complaint about failing to deal with the second grievance was raised in the claimant’s ET1 claim form dated 5 December 2022 at a time when it had not been dealt with. However, the fact of the matter is that the claimant’s second grievance was responded to and dealt with. Consequently, we find issue 17 d. not proved. We observe that there were delays in dealing with the second grievance. The Grievance Policy suggests that a meeting should be arranged within seven calendar days of being notified of the concerns. The delay between the submission of the second grievance on 11 October and 26 October has been explained. For the sake of thoroughness, we find that any delay thereafter was not because the claimant had done a protected act.

[137]Issue 17 i. was withdrawn.

[138]As regards the facts proved in issues 9 a., b. and c., we find that that was unfavourable treatment from the claimant’s perspective.

[139]We find that the unfavourable treatment was not because of the something arising in consequence of the claimant’s disability. We find that it was because of a combination of a complex and rather bureaucratic procurement process, management misunderstanding and no one taking overall responsibility for the procurement process.

[140]We find that the facts proved in issue 9 g. was unfavourable treatment from the claimant’s perspective.

[141]The something arising in consequence of the claimant’s disability set out in the list of issues is the claimant’s requirement for the items set out in the NA report. We find that the requirement for the claimant to work in excess of her contracted hours to complete administrative work was not because of the requirements for the items set out in the NA report. In our judgment, the something arising in consequence of the claimant’s disability should have been characterised as her inability to complete her admin tasks within the time allotted within her contacted hours pending the provision of all the auxiliary aids. We find that the requirement for the claimant to work in excess of her contacted hours was because of that thing arising. The parties have not had an opportunity to make submission on the re-phrasing of the thing arising in consequence of her disability and consequently, should either party want to make further representations on this issue we will hear them. As such, this finding is provisional.

[142]The legitimate aim was the expectation that the claimant would complete her admin tasks. We find that the treatment was not a proportionate means of achieving that legitimate aim. Pending the provision of all the auxiliary aids, the claimant should have had her clinic further reduced to provide more time.

[143]As regards the facts found proved in issue 9 j., we find that that was unfavourable treatment from the claimant’s perspective.

[144]We find that that unfavourable treatment was not because of the something arising in consequence of her disability, ie, the requirements of the NA report. We find that it was due to management frustration with the claimant.

[145]As regards the facts found in issue 12 c., we find that the conduct did have the effect of violating the claimant’s dignity. We find that that was the perception of the claimant. We find that the circumstances of the case are such that an unfairly critical referral to Occupational Health had been made of an individual who is disabled. We find that it was reasonable for the conduct to have that effect

[146]The claimant did do all the acts set out in issues 15a.

c. and d.

[147]The respondent accepted that issues 15 b. c. and d. were protected acts.

[148]We find that providing the NA report was doing something in connection with the Equality Act in that it was identifying the need for auxiliary aids. As such, we find that it was a protected act.

[149]As regards issues 17 a. and b.,we find that those were detriments.

[150]We find that those detriments were not because the claimant did the protected acts. We find that it was a combination of a complicated procurement process, misunderstanding and the fact that the line manager did not take ownership of the procurement process.

[151]As far as facts found proved in issue 17 e. are concerned, we find that that was a detriment.

[152]We find that that detriment was not because the claimant had done the protected act. We have found that it was because the claimant was not provided with the requirements of the NA report in a timely manner.

[153]As far as the facts found proved in issue 17 h. are concerned, we find that that was a detriment.

[154]We find that the claimant was subjected to that detriment because of management frustration which in turn had been caused, in part, by the claimant raising the grievance on 1 August 2022 and formally requesting reasonable adjustments on 1 August 2022.

[155]Issue 20 b. is:- “Was any proved discrimination a cause of the Claimant’s resignation on 4 November 2022…?”

[156]We note that both in her resignation letter and in the claimant’s closing submissions reference is made to breach of confidentiality, GDPR, as being the final straw in terms of the claimant’s resignation and an additional allegation relied upon in the constructive wrongful dismissal claim. However, we note also that the list of issues confines the question of constructive wrongful dismissal to any proved discrimination.

[157]The claimant went off on long term sickness absence on 4 August 2022. On 15 August 2022, the claimant applied for a Diabetes Specialist Dietician role at the Central and North West London NHS Foundation Trust. The claimant was interviewed and was offered employment on 26 September 2022. We have an entry on an Employment Service Record for 24 October 2022 which states:- “Regarding her new job, VE said that she has passed all the pre-employment checks and is waiting for a start date which she is hoping to receive next week.”

[158]The reasons given by the claimant in her resignation letter are a failure to make reasonable adjustments and the unsatisfactory, unfair and discriminatory treatment of her first and second grievances. As regards those issues the claimant has not proved any discrimination.

[159]Clearly the claimant has been successful in proving discrimination in relation to having to work extra hours and discrimination/victimisation over the unfair Employee Health referral. Whilst any act of discrimination/victimisation is serious, we find that they did not put the respondent in fundamental breach of contract.

[160]We have considered the 31 August and 7 September meeting notes. The 31 August 2022 meeting notes contain the following:- “Topic Ginny cover Discussion Ginny to return 8th September but will have a review with medical professional.”

Discussion

[161]We find that this was not a breach of GDPR or the breach of the claimant’s confidential information. It was common knowledge that the claimant was off sick and obviously cover had to be arranged for her. The reference to a review with medical professional could apply whether or not the claimant was disabled.

[162]The minutes from 7 September 2022 meeting contain the following:- “Topic Ginny’ cover Discussion Clinics are covered until 23rd September. EJC kindly agreed to cover two pts on Monday, that is her non-working day. GE return date uncertain, awaiting reasonable adjustments to being put in place, especially headphones and voice recognition software.”

[163]We find that in that entry, by identifying reasonable adjustments, it did make public the fact that the claimant was disabled. The nature of the disability was not identified and whilst headphones and voice recognition software are referred to, that does not point to any one single disability. Nevertheless, we find that that entry probably did breach the claimant’s confidentiality and may have been a technical GDPR breach. However, we find that it was minor and did not constitute a fundamental breach of the claimant’s contract of employment.

[164]Consequently, we find that neither individually nor collectively did the acts of discrimination/victimisation that we have found proved and the breach of the claimant’s medical confidentiality constitute fundamental breaches of the implied term of mutual trust and confidence.

[165]In any event, dealing with the acts of discrimination/victimisation that we have found proved, the claimant delayed until 4 November before resigning. We find that by then the claimant had affirmed the contract of employment.

[166]Consequently, the claim for wrongful dismissal fails. Time/jurisdiction

[167]Although not included in the list of issues, since both parties have made submissions, so we deal with the matter. The claimant presented her claim on 5 December 2022. Early conciliation took place for 42 days or 6 weeks. Three months prior to 5 December 2022 is 6 September 2022. Deducting 6 weeks from that gives 26 July 222. The working extra hours would have run until 4 August 2022 and the Occupational Health referral was on 9 Septemebr 2022. Consequently, both of the issues we have found proved are in time. Approved by: