Mrs D Edwin v Whittington Health NHS Trust: 3320545/2021 and others

EMPLOYMENT TRIBUNALS

Case No 3320545/2021, 3314645/2021, 3307155/2022

Between

Mrs D EdwinClaimant

Whittingdon Health NHS Trust RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Fredericks

In person for claimant

Ms M Sharp (instructed by Counsel) for respondent

Date 14 November 2025

JUDGMENT

[1]The claimant brought three claims in relation to her employment at the respondent. The first of those, claim number 3314645/2021 was the subject of a dismissal judgment dated 24 November 2022 following an e-mail of 29 March 2022 from the claimant in which she said that she wished to withdraw the claim. That e-mail read: “Please withdraw the whole case reference number 3314645/2021, reason being my union did not want to represent me at the hearing and I am not well enough to represent myself”

[2]At this time, claim 3320545/2021 had been issued and consolidated with the claim which was subject to the judgment. The Tribunal therefore wrote back to the claimant on 18 May 2022 to ask whether she wished to continue with that claim. On the same day, the claimant replied and said that she no longer wished to withdraw her case and wanted to proceed to a hearing.

[3]The claimant applied for reconsideration of the judgment dismissing 3314645/2021. The decision was made by a Legal Officer, and Employment Judge Quill directed that the matter should be considered at this preliminary hearing if time permitted. I heard the application at the outset of the hearing because the purpose of the hearing was to clarify and make decisions about aspects of all of the claimant’s claims. It was important to understand which claims Case Number: 3320545/2021; 3314645/2021; 3307155/2022 2 of 2 were live before that process could begin. I refused the application for the dismissal judgment to be withdrawn for the following reasons:3.1 Rule 51 Employment Tribunals Rules of Procedure 2013 says that where a claimant informs the Tribunal that they are withdrawing all or part of a claim, that claim or part subject of the withdrawal communication “comes to an end”;

3.2 as a consequence of Rule 51, no action from the Tribunal is required for a claim to end upon withdrawal – it ends when the withdrawal is communicated, and withdrawal is communicated when it is sent in unequivocal terms;

3.3 the claimant’s e-mail of 29 March 2022 identified the claim by its number and expressed an unreserved and unequivocal desire for the claim to be withdrawn; and

3.4 therefore, the claim ended on 29 March 2022, meaning that the Tribunal should produce a withdrawal judgment to confirm that the claim has ended.

[4]In reality, then, the withdrawal judgment complained of did not end the claim. It merely confirmed the fact that the claim had already come to an end prior to its production. I am able to reinstate a claim which has ended by its withdrawal, and so there was no reason in the interests of justice to reconsider the judgment.

[5]Ms Sharp submitted that the wording of the claimant’s original e-mail, to withdraw the whole claim, could and perhaps should be read as an unequivocal withdrawal of both aspects of the consolidated claim. I have some sympathy with that argument, but the difficulty is that the Tribunal did not interpret the e-mail as an unequivocal withdrawal of the second claim number. This is self-evident from the decision to e-mail in order to ask that point of clarification. I do not, therefore, consider that 3320545/2021 has been withdrawn, and that claim survives. Signed: Employment Judge Fredericks 1 March 2023 Sent to the parties on:28/3/2023 NG - For the tribunal office Case Number: 3320545/2021 3307155/2022 EMPLOYMENT TRIBUNALS Claimant: Mrs D Edwin Respondent: Whittington Health NHS Trust Heard at: Reading On: 30,31 October, 3,4,5,6,7,10,11,12,13,14 November 2025 Before: Employment Judge Gumbiti-Zimuto Tribunal Members: Mr s Holford and Mrs J Costley Representation Claimant: In person Respondent: Mr C Kelly, counsel

REASONS

[1]The decision of the Tribunal is that your claim should be dismissed and our reasons are as follows.

[2]In claim forms that were presented on 14 September 2021 and 20 June 2022, the Claimant makes complaints which are now reduced to unfair dismissal, a complaint that the Respondent breached the duty to make reasonable adjustments and victimisation.

[3]In the unfair dismissal claim the Claimant relies on constructive dismissal. The issues that the Tribunal has had to decide were confirmed at a Preliminary Hearing on 20 August 2024.

[4]The respondent concedes that the claimant was disabled by reason of the mental impairment depression and anxiety, and the physical impairment of right side neck pain radiating into right arm causing headaches.

[5]The Respondent doesn’t make any concession relating to the Claimant’s contention that she is disabled within the meaning of section 6 of the Equality Act by reason of her backpain.

[6]The Tribunal have been provided with a mountain of paperwork a trial bundle containing originally 2240 pages to which a further page was added Case Number: 3320545/2021 3307155/2022 2 and a witness statement bundle containing the Claimant’s statement of 88 pages plus statements from the Respondent’s nine witnesses.

[7]The Claimant is a litigant in person she has an impressive CV and has worked very diligently in preparing this case for hearing. She took care in preparing the questions for the Respondent’s witnesses which were often appropriately cross-referenced to relevant pages of the voluminous trial bundle. The Claimant’s latest witness statement is peppered with page references to the trial bundle.

[8]The most recent Preliminary Hearing came about because the final hearing, listed to start on 19 August 2024 couldn’t proceed because the Claimant had produced for the hearing a 2911 page document as her witness statement and a supplemental statement of some further 17 pages. The Judge at the hearing gave a direction to the Claimant regarding preparing her witness statement he set limits on what the Claimant was to provide for the final hearing.

[9]This direction was intended to be helpful to the Claimant. It was a further opportunity for her to present a narrative of her case to address the agreed list of issues in coherent. The Claimant has produced an 88 page document that is not an easy read and does not set out a very clear narrative of her case. It is, however, what the Claimant has produced and what we have considered. We note that over the two days (plus) that the Claimant was being questioned we can recall only one occasion when the Claimant was questioned on the specific content of the witness statement that she provided and that was in reference a time limits issue.

[10]After the close of the submissions the Tribunal was provided with a number of emails from the Claimant in which she stated that she wasn’t seeking to rely on section 15 of the Equality Act 2010. Section 15 is not a matter that appears in the list of issues that we have to decide.

[11]All the witnesses in this case have been severely hampered by the fact that they are giving evidence about matters that happened a long time ago. Some of the Respondent’s witnesses were giving evidence about matters which relate to an employment they had left some years ago. The Claimant hasn’t been a reliable witness, this is not because she is dishonest but because her evidence is about matters that happened a long time ago. In some instances it has been shown that she is simply wrong about things. An example is the way that the timing of the grievance and the disciplinary is dealt with by the Claimant. The Claimant says that the grievance caused the disciplinary when this is not the case because the disciplinary process started in September 2019 and her grievance was first set out in December 2019. The Claimant stated that she didn’t get sent certain documents but the documents that have been produced at the hearing appeared to show that the Claimant was sent the documents. We are satisfied that much of this is because the facts under consideration Case Number: 3320545/2021 3307155/2022 3 relate to events so long passed that recollections about them can no longer be reliable without the assistance of contemporaneous documents.

Findings of Fact

[12]The Claimant’s employment with the Respondent commenced on 17 December 2018. The Claimant was employed as an emergency department assistant. The Claimant’s employment contract was issued on 20 December 2018 and it provides the Claimant’s starting salary as £17,787.00 per annum and that she was to receive a Higher Cost Area Supplement of £4,326.00.

[13]The advertisement for the role stated that the role was in the emergency department and would have a salary in the range of £22,113.00 to £24,774.00 per annum. There is no reference to the High Cost Area Supplement in the advertisement.

[14]The Respondent sent the Claimant a conditional offer. The conditional offer of employment at page 1104, contained salary details which were as follows: “The full time salary for this position is Band 3, ranging from £22,113.00 to £24,774.00 … However, your final starting salary will depend on your current pay point (NHS) or your level of experience at this level (non-NHS). In addition to the above you will receive high cost allowance of £4,326.00 - inner London per annum.” It is clear that this document wasn’t setting out an offer that could be agreed in relation to salary but explaining how the salary would be ascertained. The contentious parts of that offer is where it says, “in addition to the above you will receive a high cost allowance of £4,326.00 - inner London per annum.” That is the document that the Claimant signed and returned.

[15]The Respondent contends that the conditional offer of employment was sent to the Claimant together with a number of other documents which included the statement with terms and conditions of employment. The Claimant gave evidence that she received the document at page 1536-1544 which accurately contains a statement of particulars of employment on which she is on 11 October 2021, i.e. during the course of these proceedings, and not in December 2018 when her employment commenced. The Respondent says that this document, in fact, was sent at the same time as the conditional offer. The documents in the trial bundle appear to suggest that those documents were as the Respondent says sent to the Claimant at the same time.

[16]The Claimant points out that she never signed the document containing the terms that the Respondent relies on but did sign the conditional offer document. The Claimant says that it is the terms set out in the conditional Case Number: 3320545/2021 3307155/2022 4 offer of employment that she accepted and there is an important difference between the conditional offer of employment and the statement of terms of employment. The conditional offer of employment sets out the Claimant’s salary in the range £22,113.00 to £24,774.00 and an addition of £4,326.00 High Cost Area allowance.

[17]The Respondent’s position is that there was an error in the conditional offer. The salary range of £22,113.00 to £24,774.00 is obviously inclusive of the High Cost Area allowance. If one takes the figure of £17,787.00 and add to the £4326.00 the figure that comes to is £22,113.00. The Respondent says that this shows that an error was made in the conditional offer and the correct figures were set out in the statement of terms of employment. The Respondent never intended to offer the Claimant employment on the terms set out in the conditional offer.

[18]It is not in dispute between the parties that the Claimant was always paid in accordance with the statement of terms of employment and the Tribunal note that the Claimant didn’t raise the issue about the correct payment of her salary until 12 September 2021, when the Claimant stated that she was concerned that she had been underpaid salary from 17 December 2018. The issue raised by the Claimant about under payment of salary was considered as part of the second grievance that the Claimant raised.

[19]From December 2018 the Claimant worked in the emergency department and in the period up to August 2019, there were several complaints made about the Claimant and her performance at work. The complaints were made by different people relating to various incidents. In the complaints it was variously stated that the Claimant wasn’t suitable for the role in AE, that the Claimant refused to do things when asked, that the Claimant wasn’t honest in the way she conducted herself (resulting in the complainant, in that particular case, Patience Davies, asking not to be on the same rota as the Claimant) that the Claimant on an occasion was screaming at a colleague, that the Claimant was not performing her role, that the Claimant was rude to colleagues and verbally intimidating, that the Claimant was passive/aggressive and that the Claimant wasn’t working as part of a team.

[20]In about August 2019, the Claimant herself made complaints. She made a complaint against Patience Davies in which she alleged that Patience Davies had discriminated against her on the grounds of age by being abusive towards her.

[21]On 16 August 2019 the Claimant was seen to be wearing nail extensions she was told that this was not appropriate and that it was against the Trust’s infection control policy. The Claimant’s reaction is reported to have been to make the statement that ‘all staff wear them’. The Claimant was asked to remove them when she went home. The Claimant was spoken to about her nails on this occasion by Deborah Koroma (the lead nurse) and also by Elaine McWilliams (ED Matron). Both the Deborah Koroma and Elaine McWilliams explained that wearing the nail extensions was not acceptable Case Number: 3320545/2021 3307155/2022 5 and that it was against the infection control policy. The Claimant told Elaine McWilliams that she would remove the nail extensions on her next day off.

[22]The next time that Elaine McWilliams saw the Claimant was on 27 August 2019. The Claimant still had the nail extensions on. When she was approached by Elaine McWilliams about this the Claimant stated that she hadn’t had time to remove them and, ‘on her day off work she liked to recuperate and rest and had many things to do on her days off’. Elaine McWilliams’ evidence was that the Claimant had in fact had 5 days off work since 16 August 2019 the Claimant had ample time to have had the nail extensions removed. Elaine McWilliams concluded that the Claimant’s attitude towards the instruction to remove the nail extensions was dismissive and rude.

[23]As a result of this incident Elaine McWilliams called the Claimant to an informal disciplinary meeting to discuss that issue. The meeting took place on 27 August 2019 a note of the meeting was prepared by Elaine McWilliams and placed on the Claimant’s file.

[24]On the evening of 28 August 2019 the Claimant approached Elaine McWilliams, pointed to another member of staff wearing false nails, and asked if it was only the Claimant that Elaine McWilliams had a problem with for wearing nails. This led to Elaine McWilliams asking to speak to the Claimant in private.

[25]On 3 September 2019, a meeting took place with the Claimant, Elaine McWilliams, and Joanne Flanagan (ED Matron). During that meeting the Claimant was alleged to have said to Elaine McWilliams, “how long are you going to be? I don’t have time for this”. During this meeting Elaine McWilliams explained that she found the Claimant verbally aggressive and rude. Elaine McWilliams considered that the Claimant’s behaviour in this exchange was rude, aggressive and intimidating. During that meeting Joanne Flanagan told the Claimant that complaints had been made to the Matrons regarding the Claimant’s poor attitude and rudeness to some members of staff. There was a discussion about some of the previous incidents. In the discussion the Claimant stated that she was never rude to anyone and that there had been some kind of breakdown in communication and that the Claimant believed that she was in fact the victim.

[26]The Claimant was told that she would be issued with a second file note regarding her recent behaviour and that her behaviour would be monitored for a period of two months. The Claimant was told that should there be any further complaints from staff regarding her poor attitude or behaviour, they would proceed with a formal disciplinary procedure. The Claimant was written to by Joanne Flanagan following the meeting and she was provided, at her request, with a copy of the grievance policy. Following this meeting Joanne Flanagan sought advice from HR on her concerns about the Claimant’s conduct. Case Number: 3320545/2021 3307155/2022 6

[27]On 15 September 2019 there was a further incident in the emergency department when the Claimant was alleged to have refused to go on a break when asked, before then becoming aggressive and shouting at a colleague and leaving them visibly shaken. The Claimant’s version of the incident was very different, the Claimant stating that she was finishing some work when she become upset because the colleague kept shouting her name loudly. As a result of this incident the Claimant was asked to go home and a while later the colleague involved in the incident was also asked to go home as result of the same incident.

[28]On 19 September 2019, the Claimant took part in a meeting with Kelly Collins (Associate Director of Nursing for Emergency and Medical Teams) Joanne Flanagan and the Claimant. In the meeting the Claimant was informed that there hadn’t been sufficient improvement in her behaviour and attitude to work since the informal meeting that had taken place on 3 September 2019 and so a formal disciplinary action was now going to proceed. The Claimant was told that this meeting, itself wasn’t part of the disciplinary procedure but was described as a courtesy meeting to allow the Claimant to know what was going to happen rather than being taken by surprise when receiving a letter about the disciplinary process. The Respondent says that the Claimant was offered the support of occupational health but declined. The Claimant denied that she had been offered support. The Claimant was informed that the outcome of the meeting could be her suspension from work until further notice, pending a disciplinary investigation.

[29]On 19 September 2019, Joanne Flanagan wrote to the Claimant and stated that the purpose of the meeting scheduled for 7 October 2019 was to discuss:(1) Refusal to follow reasonable requests from the nurse in charge promptly and efficiently on 27 August 2019 and 15 September 2019. Other incidents reported from nursing staff of refusal to comply with simple requests were discussed with you during the informal meeting held on 3 September 2019.

(2) Demonstration of poor attitude and verbally aggressive behaviour toward colleagues in the emergency department, and

(3) I.CARE1 values.

[30]On 20 September 2019 there was another incident in which it is alleged that the Claimant was disrespectful in the way that she conducted herself. Also, on 20 September, Deborah Wasley cancelled two of the Claimant’s bank shifts. 1 An acronym for Innovation, Compassionate, Accountable, Respectful, Excellent Case Number: 3320545/2021 3307155/2022 7

[31]In her witness statement Deborah Wasley says that she explained to the Claimant that as she was being formally managed, she would therefore have her bank shifts cancelled. During her oral evidence Deborah Wasley added that the Claimant, at the time, had a high Bradford score (over 500), the Claimant was working full time and also doing bank shifts. Deborah Wasley said she cancelled the bank shifts because the Claimant reported to her that she was fatigued and as that was something which presented a risk to patient’s safety it was appropriate to cancel the bank shifts.

[32]When the Claimant’s grievance was considered by the Respondent, the results would be, in the final conclusion, that the cancellation of the Claimant’s bank shifts had not been properly conveyed to the Claimant and it was decided that the Claimant should be paid for the two cancelled shifts. The Claimant however states that in the event she was not paid for those shifts cancelled shifts. The Respondent says the Claimant was paid for the shifts.

[33]The Tribunal’s conclusion is that the Claimant more likely than not, was paid for the shifts as directed by Nicola Stephenson. We note, however, that the Claimant doesn’t accept that she was paid and that she says because of her lack of access to her payslips it is impossible for her show that by reference to documents. On the information that we have, however, we think that it is more likely than not that the Claimant would have been paid. Nicola Stephenson made the determination the Claimant should paid and then took action to instruct pay roll to pay the Claimant, we understand that this in the ordinary course of events will in fact generate a payment to the Claimant. We do not consider that there is evidence to show that the normal course of events did not take place.

[34]Meanwhile, the Claimant contacted the Royal College of Nursing seeking advice about raising a grievance about colleagues speaking to her in an aggressive manner.

[35]There wasn’t a grievance raised at this point although there was clear discussion taking place between the Claimant and the Royal College of Nursing about the possibility of the Claimant raising a grievance.

[36]The Claimant was invited to a formal investigation meeting on 7 October 2019. This date was later changed to 22 October before the meeting eventually took place on 13 November 2019. There was insufficient time discuss all the issues and a further disciplinary investigation meeting took place on 2 January 2020.

[37]On 30 September 2019, there was a further incident involving the Claimant and Elaine McWilliams. On that occasion it was alleged that at the shift handover the Claimant walked in late holding a cup of coffee. Elaine McWilliams said the Claimant didn’t apologise for being late or offer an explanation. When asked why she was late the Claimant gave the explanation of ‘road works’. Following that incident a meeting was held with Case Number: 3320545/2021 3307155/2022 8 the Claimant together with Hannah Hayley (senior nurse in the emergency department) and Elaine McWilliams. In that meeting it was explained that if the Claimant is going to be late it was courteous to inform the nurse in charged and give a reason.

[38]There were further complaints about the Claimant on 6 December 2019 and 11 December 2019.

[39]On 20 December 2019, the Claimant herself made a detailed grievance setting out a number of issues. The grievance and appendices produced by the Claimant ran to about 40 pages in length. At this point the disciplinary process was at the investigation stage.

[40]The allegations now were:(1) Refusal to follow reasonable requests from Matron Elaine McWilliams and lead nurse Deborah Koroma to remove your false nails on 16 August 2019. You were noted to still have the nails in place on 27 August 2019 by Elaine McWilliams who asked you again to have them removed.

(2) Refusal to follow reasonable requests from the nurse in charge, Celia Panopio on 15 September.

(3) Refusal to comply with simple requests made by various nursing staff.

(4) Demonstration of poor attitude and verbally aggressive behaviour towards colleagues in the Emergency Department.

[41]During the investigation meeting that took place over two days the Claimant confirmed that the grievance was linked to the disciplinary. At the meeting it was thought that the Claimant was in agreement with the grievance being reviewed as mitigation for the disciplinary case and not to be progressed under the Trust’s grievance process. However, when this was set out to the Claimant in a letter, the Claimant made it clear that she wanted the grievance to be investigated separately.

[42]There were further incidents involving some form of allegation being made against the Claimant which resulted in a further meeting taking place with the Claimant and Deborah Wasley on 12 February 2020 where again it was explained what the expectations, in terms of professional behaviour were, in particular during a period when the Claimant was subject to a disciplinary investigation and a grievance process.

[43]In the course of the meeting on 12 February there was a discussion about the possibility of the Claimant moving to Ambulatory Care. In her outcome letter to the Claimant, Deborah Wasley informed the Claimant that “after much discussion with Anthony and Kelly Collins, Lead Nurse for Emergency Case Number: 3320545/2021 3307155/2022 9 and Integrated Medicine, it is felt that a temporary redeployment would not alleviate your backpain due to the similarity of both roles of a HCA in Ambulatory Care and an EDA working in the Emergency Department.”

[44]It seems to the Tribunal, clear, that as of 12 February 2020, consideration was being given to moving the Claimant to Ambulatory Care but that consideration resulted in the conclusion that it wasn’t appropriate as it would not alleviate the Claimant’s backpain due to a similarity in the role that the Claimant was currently carrying out in the Emergency Department and the role that she would carry out in Ambulatory Care.

[45]The Claimant had been referred to occupational health and a report was provided which was dated 24 February 2020. The reason for the Claimant’s referral to occupational health at that time was her high Bradford score. Occupational health was made aware from the referral that there were disciplinary issues in the process. The Claimant was described as “finding the circumstances at work to be very stressful for her. She is reporting severe headaches and is finding it, even with medication, difficult to control”. The Claimant reported that she had injured her back when she assisted with moving a patient. (That may be a significant piece of evidence in relation to the Claimant’s complaints about backpain and whether she had a disability.) The back pain at this time was an injury which occurred as a result of moving a patient; it is discreet and different to any earlier periods of back pain complaint that the Claimant may have made historically. The OH report described the Claimant as fit for work with restrictions relating to manual handling and other strenuous tasks and time limited for 6-8 weeks. Restrictive back pain for a period of 6-8 weeks would not align with the definition of long term for the purposes of section 6 of the Equality Act 2010.

[46]The OH report also contained the following passage which is, to some extent, contentious between the parties. The report said that, “In the light of her feeling stressed by circumstances at work, moving her to another work area may be of benefit. She does understand that the formal proceedings do have to go ahead. She explained to me that it was agreed that she would be moved to Ambulatory Care, an area where the above adjustments and restrictions are likely to be more easily accommodated.”

[47]It is important to point out at this stage, two things about this passage. The first one is that if the reference to “it was agreed that she would be moved to Ambulatory Care” relates to the discussions which took place on 12 February. It is wrong because there had been no such agreement. What had happened is that the possibility of a move to Ambulatory Care was to be given consideration. Consideration was given and the move was rejected. The second is that the Claimant has subsequently sought to portray this passage as an indication that occupational health advised that the Claimant Case Number: 3320545/2021 3307155/2022 10 was to be moved to Ambulatory Care as an adjustment to deal with her disability. That is not an accurate reading of the document which is reporting what the Claimant had said to occupational health rather than containing a piece of advice that had been given by occupational health relating to Ambulatory Care.

[48]In the course of the disciplinary investigation Hannah Hayley interviewed a number of people. She interviewed Elaine McWilliams, Michelle Scully, Celia Panopio, Deborah Wasley. The Claimant supplied a list of witnesses that she considered should be spoken to as part of the disciplinary investigation. The Claimant was told that her list would be reviewed by the investigating officer. It appears that there was no interview of people named on the Claimant’s list other than those people who had also had made allegations against the Claimant.

[49]The 23 March 2020 was the day that the Prime Minister, Boris Johnson, announced the first lockdown in the United Kingdom. He ordered people to stay at home. The Claimant was found to be medically exempt from work at this time due to her being a person at high risk on the basis of her health (Clinically Extremely Vulnerable). During this period of time we referred to people such as the Claimant as people that were shielding.

[50]In this initial period the Respondent halted all employee relations activity and that included dealing with the Claimant’s disciplinary and grievance process.

[51]By July 2020 some of the restrictions were relaxed and in August 2020, shielding came to an end with the Government giving guidance to employees that they should return to work after discussions with their employers.

[52]The Claimant was referred to occupational health and they advised on 30 July 2020, that the Claimant should remain at home until further guidance was received from the Government.

[53]Around this time the Claimant spoke to Charlotte Pawsey, who was the person in HR that had taken over the task of dealing with the Claimant’s case from about July 2020. They spoke about the Claimant’s possible return to work, the Claimant made it clear that she wanted to work from home. The Claimant was told that there was a possibility for some of the Respondent's staff to work from home whilst shielding, however, that would only have applied to those people employed by the Respondent in administration roles. Working from home was not an option for the Claimant in her role, the role of an Emergency Department health care assistance was not one which could be done from home.

[54]The Respondent and the Claimant both carried out a risk assessment in relation to the possibility of the Claimant returning to work. The risk assessment for the Claimant showed that she scored a figure of 8 in the Case Number: 3320545/2021 3307155/2022 11 BAME risk assessment for Covid. That is a high score and it required the Claimant to be redeployed away from hot covid environments and to avoid direct contact with a covid cohort where possible.

[55]The Respondent’s employees explained that during this time the Trust had set up hot and cold areas of the emergency department to try to ensure that patients and staff were protected as much as possible and on 27 August 2020 Deborah Wasley wrote to the Claimant giving her a number of options to think about as possible ways for the Claimant to get back to work. These were:(1) To work in the cold fracture clinic which is where the Respondent was seeing injured patients. The Claimant would work alongside two Emergency Nurse Practitioners the role of EDA.

(2) Workers as an EDA in the capacity of the cold wards - where all the patients receive a Covid swab result before being admitted to the wards.

(3) Flexible working options to reduce the time spent at work.

(4) Take annual leave which could cover the Claimant up to roughly mid- October but then to agree a return to work plan.

(5) That the Claimant be signed off sick by a GP.

(6) That the Claimant take unpaid leave. The Claimant did not return to work and on 13 October 2020 she was signed off work by her GP.

[56]The Claimant’s grievance hearing took place on 6 November. The grievance hearing was heard by Sita Chitambo who has since left the Respondent’s employment. Sita Chitambo left the Respondent’s employment at the end of 2020. She has not made any witness statement in these proceedings.

[57]An offer was made by Sita Chitambo to give the Claimant her grievance outcome before she left the Respondent’s employment. The Claimant was clear that she wanted the grievance outcome to be provided in writing and in accordance with the procedure. For one reason or another it wasn’t possible for the people that are required to meet so that the outcome could be given to the Claimant to all meet at the same time and there was no grievance outcome provided to the Claimant before Sita Chitambo left the Respondent’s employment at the end of December 2020.

[58]The Claimant’s grievance then became the responsibility of Kelly Collins. The grievance outcome was not provided to the Claimant until 8 March 2020. The outcome letter wrongly states that Kelly Collins was present at Case Number: 3320545/2021 3307155/2022 12 the grievance when she was not, the letter should have said that it was Sita Chitambo who heard the grievance. The way that the grievance letter was prepared is that determinations made by Sita Chitambo with the assistance of HR were reviewed Kelly Collins who them provided a grievance outcome to the Claimant although Kelly Collins didn’t carry out the grievance investigation.

[59]The Claimant’s complaints were, in some instances, partially upheld but mainly not upheld. The Claimant appealed the grievance outcome on 14 March 2021 and the Claimant’s grievance appeal hearing was eventually to take place between 25 and 27 October 2021. The Claimant’s grievance appeal resulted in one point being upheld and one point being partially upheld.

[60]In September 2021 the Claimant raised a second grievance. That grievance was about the underpayment of her salary, that the Claimant did not have access to her payslips and a further grievance about the fact that her grievance appeal (i.e. the appeal against the first grievance and made in March 2021) had not been heard.

[61]Sinthu Balaskandan (Investigation Support Manager) dealt with the Claimant in respect of her second grievance. In dealing with the grievance she realised that the Claimant didn’t have access to her payslips and so she provided the Claimant with hard copies of her payslips and also provided the Claimant with the means to set up her ESR account so that she could have access to her payslips.

[62]The Claimant’s second grievance was dealt with by Belen Plaza on 12 October 2021. She provided the Claimant with an outcome of the grievance on 26 October. The Claimant’s allegation about underpayment of salary wasn’t upheld but her complaints about access to payslips was partially upheld and her complaint about the delay in dealing with her grievance was upheld.

[63]The Claimant appealed the outcome of her second grievance and the appeal was considered by Gordon Houliston (Director of Operations for Children and Young Peoples services) on 10 December 2021 and the grievance appeal outcome sent to the Claimant on 15 December 2021, the Claimant’s grievance was not upheld.

[64]Meanwhile, the Claimant had been sent an invitation by Kelly Collins to attend a disciplinary hearing. That first invitation was sent on 12 August 2021 with a view to her disciplinary hearing taking place on 27 August 2021. Kelly Collins explains her actions by saying that she had seen an occupational health report relating to the Claimant and that occupational health report indicated that the Claimant’s condition is not likely to improve until a resolution of the grievance and disciplinary processes had taken place. Case Number: 3320545/2021 3307155/2022 13

[65]Kelly Collins noted certain aspects of the advice from occupational health and there was a question asked: “Is performance significantly affected by ill health and for how long is it likely to continue?” The answer is: “Miss Edwin has been unable to attend work because she has been shielding under the Government guidelines and now she is feeling very anxious to return to work. Ms Edwin also informed that she is feeling stressed due to the current circumstances at work. It is difficult to ascertain how long this is going to continue. However, in my opinion, as soon as the disciplinary issues are addressed, this would help in reducing her stress and hopefully Miss Edwin will be able to return to work in some capacity”.

[66]In August 2024 the Claimant was still signed off sick. She contacted the Respondent and stated that she couldn’t attend the disciplinary hearing due to being off sick and she stated that she wouldn’t be able to attend a disciplinary meeting until she returned to work. The Claimant complained that the very fact of inviting her to the disciplinary meeting was an act of race discrimination, victimisation, bullying and harassment. It was not until 15 February 2022 that Kelly Collins once more invited the Claimant to attend the disciplinary hearing, this time on 28 March 2022.

[67]The Claimant wrote on 25 March, stating that she was unable to attend because she remained unwell and the disciplinary meeting didn’t take place on 28 March but Kelly Collins wrote a letter to the Claimant on that date and that letter included the following passage, “I recognise that you are still off work on sick leave. However, in view of occupational health’s previous recommendations, I believe it is in your best interest to conclude what has already been a protracted process in bringing this case to be heard at Panel. Please be assured that it is my intention to ensure the hearing is conducted in as comfortable manner as possible. This would mean having regular comfort breaks where required”.

[68]The Claimant was told that Kelly Collins would be happy to accept the Claimant’s Trade Union Representative to attend to represent the case, that the Claimant could provide a statement setting out her response to the management case. The Claimant was also told that the disciplinary hearing would be scheduled to take place after the Claimant’s current fit note expired.

[69]In due course, the disciplinary hearing was scheduled to take place on 4 April 2022. At the time that the date was set that date would have been after the expiry of the Claimant’s fit note. The Claimant didn’t attend the disciplinary hearing on 4 April, however, Kelly Collins took the decision to proceed with the hearing because she considered that it was in the Claimant’s best interest to conclude the proceedings and so the hearing went ahead without the Claimant.

[70]On the morning of 4 April 2022, the Claimant sent Kelly Collins an email providing a copy of further statement of fitness for work which confirmed Case Number: 3320545/2021 3307155/2022 14 that the Claimant wasn’t fit for work until 31 May 2022. On 6 April Kelly Collins wrote a letter to the Claimant to confirm the outcome of the disciplinary hearing and informed the Claimant of the sanction which Kelly Collins concluded should be a first written warning. On 7 April 2022, the Claimant resigned her employment with the Respondent.

[71]The list of issues that we have to decide in this case is set out in the second Preliminary Hearing that is contained in the trial bundle at page 1882-1887. We do not repeat them here but we have followed that list of issues as a template for our decision.

[72]The law that we have to consider in this case is contained in the provisions of the Equality Act 2010 and the Employment Rights Act 1996.

[73]Section 95 (1) of the Employment Rights Act 1996 provides that “For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2)…, only if)- … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employers conduct.” In Western Excavating (ECC) v Sharp

[1978] 1QB 761

it was stated that “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.” In Waltham Forest v Omilaju

[2005] ICR 481

the following propositions of law were set out by the Employment Appeal Tribunal “The law 14. The following basic propositions of law can be derived from the authorities: Case Number: 3320545/2021 3307155/2022 15 1. The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp

[1978] 1 QB 761

. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA

[1998] AC 20

, 34H-35D (Lord Nicholls) and 45C-46E (Lord Steyn). I shall refer to this as "the implied term of trust and confidence". 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] ICR 666

, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added). 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must "impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer" (emphasis added). 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law: "[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship."…”

[74]Case Number: 3320545/2021 3307155/2022 16 Our conclusions are as follows

Conclusions

[75]Was the Claimant dismissed? We consider that the answer to that is no. 75.1. The Claimant states that the Respondent failed to pay to her full earnings due for the whole period of her employment. The Claimant says she was underpaid because the role was advertised with a higher salary. 75.2. Our conclusion is that this point isn’t established by the Claimant because it was never the intention of the Respondent to make an offer to the Claimant that she would be paid £22,113.00 plus high cost area allowance of £4,332.00. 75.3. The Role advertised and the documents sent to the Claimant show that the Respondent intended the figure of £22,113.00 to be a figure which was inclusive of the High Cost Area allowance. 75.4. We are satisfied that while the Claimant was provided with a conditional offer which contained wrong information in respect of pay, that came with other documents including the statement of terms and conditions of employment which set out the correct figures. A sensible reading of all the documents, in our view, would have led a cautious individual to know that the correct terms in which the offer was being made, notwithstanding the wrong information provided. 75.5. It is, in our view, more likely than not that the Claimant was well aware of what the correct pay was we conclude this because she never raised any complaint about pay until she raised her grievance on 12 September 2021, almost three years into her employment, at a point in time when the Claimant would not have been at work for over a year. This is significant because the Claimant said she raised the issue of pay after it came to her attention that she was paid less than colleagues through conversations with colleagues. If that had been the case the Claimant in our view have raised the issue of the correct pay prior to March 2020. 75.6. Even if the Claimant really didn’t know she was being paid less than she believed she was entitled to, which we don’t accept, then in our view there was not sufficient evidence to conclude that there was a contract formed between the Claimant and the Respondent which entitled her to receive the sum of £22,113.00 plus the high cost area allowance of £4326.00. The document that the Claimant relies on is not sufficiently certain to show what agreement was in Case Number: 3320545/2021 3307155/2022 17 fact reached. We note that the document has a range in that it refers to a salary between £22,113.00 and £24,332.00. 75.7. The Claimant complains that her bank shifts were wrongly cancelled. We note that there was a determination in the Claimant’s favour in respect of clear communication to the Claimant about the cancellation of the shifts. The conclusion of the Tribunal, however, is that we accept the reasons given by the Respondent in respect of the cancellation of her bank shifts. 75.8. It was the application of the Respondent’s policy that there is a moratorium of 14 days after a period of sickness when staff cannot work bank shifts. Secondly, we note that the other reason that the bank shifts were cancelled for the Claimant related to a concern about health and safety. These are valid reasons why her bank shift might be cancelled by the Respondent and, in our view, it is likely that if the reasons for the cancellations had been properly communicated, the Claimant’s grievance about these could have been properly dismissed. We are not satisfied that there was a breach of contract in this respect, i.e. cancellation of the shifts. 75.9. On 20 September 2019, Deborah Wasley cancelled the Claimant’s bank shifts. In her witness statement Debora Wasley says that she explained to the Claimant that as she was being formally managed, the Claimant’s bank shifts would be cancelled. During her oral evidence Deborah Wasley added that the Claimant had a high Bradford score (over 500), the Claimant was working full time and doing bank shifts: Deborah Wasley cancelled the bank shifts because the Claimant had reported that she was fatigued and that presented a risk to patient’s safety. 75.10. We were also satisfied that it is more than likely than not that the Claimant was paid in relation to those bank shifts following the determination made by Nicola Stephenson. 75.11. The Claimant complains that the Respondent conducted a disciplinary process despite her absence and being signed off work by her GP where the Claimant was issued with a first written warning. In respect of this, the submissions made by the Respondent are, that at the point of resignation the Claimant would have been aware of the following key facts.(a) The Claimant had been provided with electronic and hard copies of all the appendices relied on by Kelly Collins in the disciplinary. That there is no medical evidence in which the Claimant was advised not to engage with the documents between 12 August 2021 and 6 April 2022.

(b) The 24 May 2021 occupational health report stated “it is difficult to ascertain how long this is going to continue, Case Number: 3320545/2021 3307155/2022 18 however, in my opinion as soon as the disciplinary issues are addressed this would help in reducing her stress and hopefully the Claimant will be able to return to work in some capacity’.

(c) In rearranging the disciplinary hearing, Kelly Collins clearly warned that she expected the re-arranged disciplinary hearing to go ahead, while at the same time suggesting two options which would have allowed the Claimant to participate if she was not well enough to attend herself.

(d) The fit note which the Claimant did provide to Kelly Collins dated 1 April 2022, suggested that the Claimant would not be fit for work for a further 2 months without giving any indication that the Claimant might be well enough to attend. 75.12. The disciplinary process had been ongoing since 2019, there is no end date for the Claimant’s sickness absence, Kelly Collins didn’t wish the process to continue for another 6-12 months, she wished to conclude a protected situation. The outcome of the first written warning was justified on the evidence and was a decision from which the Respondent had reasonable and proper grounds. The Respondent states that those are not the actions of an employer in fundamental breach of the contract of employment. 75.13. The Tribunal agree with the points made by the Respondent. The Respondent could have acted in a different way allowed the matter to proceed with no end date in sight. That the Respondent did not do that is not in our view any evidence of a breach of contract. The Claimant had been off work since March 2020, had been signed off sick since October 2020. There had been suggestions of ways to potentially get the Claimant back to work which had gone nowhere. The outstanding disciplinary issue was considered by OH as a bar to the Claimant returning to work. It was a reasonable for this employer to decide that this process had been going on for so long that it was proper to bring it to a conclusion notwithstanding that the Claimant was still off sick, especially where the Claimant was if she chose to do so able to engage with the process. 75.14. The Claimant complains that the Respondent revived historical issues in dealing with the disciplinary processes which were dealt with in 2019. This is simply wrong. There were no previously resolved allegations, there was no reviving of allegations that had been dealt with. The Respondent was resolving outstanding disciplinary allegations outstanding since 2019. 75.15. The Claimant complains that the Respondent reached conclusions in the disciplinary process which were false, biased, prejudicial and discriminatory. The conclusions reached in the disciplinary processes are explained they are reasoned, logical and there is an evidential base to justify them. The Claimant, in her evidence, didn’t Case Number: 3320545/2021 3307155/2022 19 identify evidence that demonstrated or tended to show that the disciplinary allegations were false. 75.16. In respect of evidence relating to Enrique Mosquera, which the Claimant relied on, that referred to an incident with the Claimant on 6 April 2019 at around 18.50. The Claimant argued that her work schedule showed that she wasn’t at work on 6 April 2019. This appears to be correct. However, the Claimant was at work on 5 April 2019. The email from which was sent by Enrique Mosquera was sent at 04.23 on the morning of 6 April 2015. It is clear that Enrique Mosquera was referring to an event that occurred on 5 April but had clearly mistaken inserted 6 April. That is obviously the case as if taken at face value the email was complaining about an event that had not yet taken place. The incident involving Enrique Mosquera does not provide any support at all for the Claimant’s case. 75.17. The Claimant complains that the Respondent procured and used false witness statements in answer to the Claimant’s grievance process. However, the Claimant produced no evidence that supported this allegation, which of the witness statements is false? In what respect? No evidence has been pointed at other than the general assertion that the Claimant disagrees. 75.18. The Claimant complains that the Respondent failed to adequately investigate her grievances through delay and cherry picking the evidence. We do not consider that the evidence supports the conclusion that the Respondent deliberately derailed the process. However, it is incontestable that there was a delay. The delay in dealing with the Claimant’s grievance was largely due to Covid and the pressures that it placed on the Respondent and the NHS more generally. 75.19. The Claimant initially made complaints about grievance on 17 December 2019 and also on 27 December 2019. The Claimant initially appeared to agree that the relevance of her complaints was that their content was litigation in the ongoing disciplinary process. The Claimant later confirmed that she wished the complaints to be investigated as a separate grievance. The Appellant completed the grievance form which is required in order for her grievance to be progressed on 18 February 2020. There was a national lockdown from 23 March 2020 and from that date the Claimant was absent from work and didn’t return to work when the lockdown finished and shielding came to an end. The Claimant was signed off sick and remained away from work. All of this contributed to a delay particularly the fact that during the first lockdown the Respondent stopped all employer relations processes which included not just the Claimant’s grievance but all grievances. Case Number: 3320545/2021 3307155/2022 20 75.20. On 6 November 2020, Sita Chitambo held a grievance meeting with the Claimant, she attempted to meet with the Claimant in December 2020 to communicate the grievance outcome. However, she left the Respondent’s employment at the end of that year 2020 and had been able to meet with the Claimant before she left. Kelly Collins took over as the manager with responsibility for the grievance. 75.21. There was a further delay from January 2021 to 8 March 2021 when Kelly Collins finally provided the Claimant with the grievance outcome. This delay is not explained there appears to be no specific precise reason was for the delay. We note, however, that Kelly Collins was indicating that there would be a delay in dealing with the grievance. 75.22. The Claimant appealed the grievance outcome and there was then another delay which is also unexplained between 14 March 2021 and the 21 September 2021 when the Claimant was invited to a grievance appeal hearing which ultimately was heard on 25 and 27 October 2021. 75.23. In her witness statement Nicola Stephenson explained that in around October 2021 the Omicron variant became prevalent, there was evidence that during this time the work of the Trust was very busy and this was a time when patient care and patient safety had to be prioritised. It is clear that there was continuing correspondence with the Claimant and her Representatives and in this period. Nicola Stephenson identified operational pressures as being the reason for the delay. 75.24. The grievance outcome was provided on 26 January 2022. The Respondent makes the point that when one steps back and looks at this period, of Covid and post Covid, considers the pressures that were placed on everybody, including the Claimant, and the pressure on the NHS, that it was not an egregious delay in this case. 75.25. The Tribunal consider that it may well be that some things could have been done sooner but we recognise that decisions on priorities have to be made in real time and inevitably some things will lose out but taking the taking into account all the circumstances of this case we do not consider that the delay here though severe was not a serious breach of contract. 75.26. It is right that some of the periods of delay are unexplained but it would be wrong to consider those unexplained periods of delay in isolation from the background in which these events were occurring and that was Covid and that resulted in patient health and safety Case Number: 3320545/2021 3307155/2022 21 having to be prioritised over the conduct of employer relations matters such as minor disciplinary issues and some grievances. 75.27. The Claimant also complains about the cherry picking of evidence and in respect of this we have considered the fact that the Claimant provided a list of witnesses to be interviewed Mehvish Shaffi-Ajibola, who was the HR person dealing with her grievance at one point. She left the Respondent’s employment and her role was taken over by Serena Wilshire who was supporting Sita Chitambo in dealing with the grievance. 75.28. Serena Wilshire appears to have formed the view that the names which were set out by the Claimant were for information rather than a specific request that the persons be interviewed as part of the grievance. We consider that to be a situation that arose not because of a desire to present a particular type of case, i.e. a case that condemns the Claimant rather than exculpates her, but because there was a genuine misunderstanding as to what was expected. We do not consider that there was an intent to cherry pick in the sense of selecting witnesses that supported the management case only and ignore those that supported the Claimant. 75.29. The Claimant complains that she was effectively demoted by her letter of 6 April 2022 which she considers was a dismissal. The view of the Tribunal is that the letter is neither a demotion or a dismissal. The letter noted that there had been a breakdown in relationships between the Claimant and colleagues in the Emergency Department. There was a proposal that the Claimant be redeployed to another area, Enhanced Care Team as an Enhanced Care Assistant. The new job was also a band 3 role, it had the same seniority as the Claimant’s role, there was no suggestion that there had been any alteration in the Claimant’s salary, there was no loss of status or seniority in the role. 75.30. The Claimant, we note, complains about not being able to be transferred to Ambulatory Care but objects to the moves to the Enhanced Care Team. It seems to us that it wasn’t the principle of redeployment that the Claimant objected to but the nature of the role offered. The Respondent considered the Ambulatory Care role and decided that that role was not one that was suited for the Claimant. The Respondent considered the enhanced role and decided that, whilst there were differences in the role, it was suitable for the Claimant, when compared with the role that she was doing. The Claimant objected to the nature of the tasks involved in the proposed new role on the basis of her ill health, however, the Respondent’s position was that there would have been no practical difference in that regard to her current role. Case Number: 3320545/2021 3307155/2022 22 Disability discrimination

[76]The Respondent agrees that the Claimant was a disabled person by reason of depression and anxiety, a right side neck pain radiating into her right arm causing headaches and also by reason of diabetes. The Claimant also contends that she is a disabled person by reason of back pain.

[77]The occupational health report dated 24 February refers to backpain but it doesn’t indicate that the impairment is long term. There is evidence that the Claimant has, over the years, complained both back pain to her GP, the most recent being 2019 and 2020. It is not clear from the evidence produced by the Claimant that she is a disabled person by reason of back pain. However, for the purposes of this judgment we will consider the Claimant’s disability discrimination claim as if the basis of the claim includes disability by reason of back pain at the relevant time.

[78]The Claimant makes a claim for reasonable adjustments.

[79]Sections 20 & 21 Equality Act 2010 (EqA) govern the issue of reasonable adjustments. The relevant provisions of section 20 EqA state as follows: (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (emphasis added) The duty to make adjustments only arises where a disabled person is placed at a ‘substantial disadvantage’. Section 212(1) EqA defines ‘substantial’ as something that is ‘more than minor or trivial’.

[80]In Environment Agency v Rowan [2008] I.C.R. 218, the EAT held that (at [27]) the Tribunal must identify: 80.1. The PCP applied (or the physical feature/auxiliary aid not supplied); 80.2. The identity of non-disabled comparators (where appropriate); and 80.3. The nature and extent of the substantial disadvantage suffered by the claimant.

[81]The Claimant must prove facts from which it could reasonably be inferred, absent an explanation, that the duty has been breached. The burden then shifts to the respondent under section136 EqA 2010. The burden is on the employee, initially, to show (if disputed) that the PCP was applied and that it placed the employee at the substantial disadvantage asserted. They also need to put forward and identify some at least potentially or apparently reasonable adjustment which could be made. But, if they do, then the burden may pass to the employer to show that it would not have been reasonable to expect them to make that adjustment.

[82]Paragraph 6.26 of the EHCR Code of Practice outlines the following factors which might be taken into account when deciding what is a reasonable step for an employer to have to take: 82.1. Whether taking any particular steps would be effective in preventing the substantial disadvantage; 82.2. The practicability of the step; 82.3. The financial and other costs of making the adjustment and the extent of any disruption caused; 82.4. The extent of the employer’s financial or other resources; 82.5. The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and 82.6. The type and size of the employer. Case Number: 3320545/2021 3307155/2022 23

[83]The question of whether an adjustment is or would be effective was one that had to be answered on the basis of the evidence available at the time the decision to implement it (or not implement it) was taken.

[84]The section 20 EqA duty can extend to offering an employee an existing vacancy in a role they are able to physically do, without a competitive interview, so long as this step is a reasonable thing for the employer to do in all the circumstances. However, such an adjustment will not be reasonable where it is tantamount to appointing an employee to a role for which they do not meet the essential requirements .

[85]The first PCP that she seeks to rely upon is that of not allowing staff members to work remotely from home. The Claimant didn’t work from home in her role as a health care assistant, it wasn’t possible to carry out the duties of her role while working from home.

[86]The Respondent says that there was no PCP of not allowing the staff members to work remotely from home. The evidence before us was that there were no roles in the Respondent that the Claimant could do which involved working entirely from home. There was no role that the Claimant could do working from home full time in an administrative role as no such role existed.

[87]We consider that there is no reasonable adjustment that the Respondent could have made to allow the Claimant to work from home. Throughout the Claimant’s time after March 2020, the Claimant was unable to work. After lockdown the Claimant had been unwell and unable to work and at no point could the Respondent have made an adjustment that would enable the Claimant to work while she was unwell as she couldn’t work.

[88]We do not consider that there was any failure to carry out reasonable adjustments which arises from a PCP of not allowing staff members to work from home in the Claimant’s case if such a PCP in fact existed on these

facts.

[89]The second PCP that the Claimant relies upon is continuing with disciplinary hearings even in the absence of employees due to their illness. It is not the case that there is any general policy of continuing with disciplinary hearings, even in the absence of employees due to their illness.

[90]In the Claimant’s case it is clear that Kelly Collins made the decision to proceed with the disciplinary hearing on 4 April 2022 in the Claimant’s absence. Based on the circumstances of the Claimant’s individual case it was, in this sense, a true one off decision. We recognise that there may be circumstances when one off decisions amounts to a PCP, however, we do not consider that this is one of those. This wasn’t a provision criterion practice, it was a decision that was made uniquely to address the Claimant’s specific circumstances where the disciplinary process had been ongoing for a protracted period of time and as a means of trying to progress matters, the decision was made by Kelly Collins to proceed with the disciplinary hearing after the process had been on going for a long period of time and as a way Case Number: 3320545/2021 3307155/2022 24 of being able to move things on so that the Claimant might be able to return to work.

[91]We do not consider that the Claimant was put in a substantial disadvantage by the Respondent in proceeding with the disciplinary hearing, the purpose of the disciplinary hearing was to try to get to the situation where the Claimant might be able to return to work. The Claimant was able to engage with the disciplinary process but chose not to do so. A comparison of the position of the Claimant against that of a person without a disability in similar circumstances, does not show that the Claimant has suffered a substantial disadvantage.

[92]The disciplinary proceedings had been ongoing for two years. It would not have been a reasonable adjustment to allow them to continue further. Victimisation

[93]Section 27 EqA provides that a person(a) (A) victimises another

(b) (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do a protected act. A protected act includes bringing proceedings under the Equality Act 2010 or making an allegation (whether or not express) that A or another person has contravened the Equality Act 2010.

[94]The protected act relied upon is the Claimant’s grievance date of 27 December 2019. We agree that that is a protected act within the meaning of section 27(2) EqA.

[95]The Claimant relies on four alleged detriments(1) launching disciplinary proceedings against the Claimant in relation to her not removing artificial nails,

(2) delay in dealing with the grievance process,

(3) failing to conduct disciplinary proceedings properly and including false information, and

(4) coming to an outcome in the process which was an effective dismissal.

[96]In relation to the first, launching disciplinary proceedings against the Claimant in relation to her not removing artificial nails. The Claimant’s disciplinary proceedings commenced before the Claimant carried out a protected act. There is no evidence that the initiation of the disciplinary proceedings was because it was anticipated that the Claimant would do a protected act. The Claimant said in her evidence that the Respondent knew that she would be bringing a grievance we do not accept that there is evidence that allows us to draw that conclusion it merely an unsupported assertion.

[97]There was a delay in dealing with the Claimant’s grievance. However, this was not because the Claimant had done a protected act, it was because of the environment created by Covid and its consequences on the efficiency of the NHS and people working within it. We have found that the Respondent has failed to provide an explanation for all the delays that occurred in the Case Number: 3320545/2021 3307155/2022 25 Claimant’s case, but we have also found that the delays were in part at least due to the impact of Covid on the Respondent’s operations. The detriment alleged has not been shown to be because the Claimant did a protected act.

[98]The Claimant says that there was a failure to conduct the disciplinary proceedings properly and it included false information. We are unable to conclude that the Respondent failed to conduct the disciplinary proceedings properly and/or included false information. There is no evidence to support that conclusion. There was a mistake made in regards to the investigation where the names provided by the Claimant the were treated as though it was for information rather than a specific request to interview the named persons. Some of the named persons were interviewed but not all of them. The fact that this error in the investigation took place was a mistake it was not a deliberate act to skew the investigation against the Claimant.

[99]The Claimant says that the Respondent came to an outcome in the process regarding deployment which was an effective dismissal. The Respondent did not come to an outcome in the process which was an effective dismissal. For the reasons set out above we reject this contention.

[100]We therefore conclude that all the Claimant’s claims fail and are not well founded and are dismissed.

[101]We do not need to deal with the question of time in the circumstances but if we had to do so, we consider that the Claimant’s victimisation claims linked to the termination and therefore it would be just and equitable to extend time in respect of those.

[102]Other complaints that are out of time which do not tie in with the allegation of constructive dismissal, in our view, there is no justification for delay in relation to those. This case is one where you can see the embodiment of the prejudice caused by delay and it affected both sides. Some people are no longer available to give evidence that would have been able to do so in a more timely manner and all the people who gave evidence, their recollection has been demonstrably affected by the delay. Were we required to consider whether to extend time in relation to matters which didn’t form part and parcel of the victimisation complaints which feed into the constructive dismissal. We would have concluded that it is not just and equitable to extend time.

[103]The decision of the Tribunal is that the Claimant’s complaints are not well founded and the claim is dismissed. Approved by: Employment Judge Gumbiti-Zimuto Date: 7 January 2026 Sent to the parties on: 15 January 2026 Case Number: 3320545/2021 3307155/2022 26 For the Tribunal Office. Case Number: 3320545/2021 3314645/2021 3307155/2022 EMPLOYMENT TRIBUNALS Claimant: Mrs D Edwin Respondent: Whittington Health NHS Trust CERTIFICATE OF CORRECTION Under Rule 67, the judgment sent to the parties on 28 March 2023 is corrected as set out in the corrected judgment: Respondent: Whittington Health NHS Trust Approved by: Employment Judge Fredericks Date: 17 February 2026 SENT TO THE PARTIES ON 17 February 2026 FOR THE TRIBUNAL OFFICE Important note to the Claimant(s) and Respondent(s): Any dates for asking for written reasons, applying for reconsideration or appealing against the judgment are not changed by this certificate of correction and corrected judgment. These time limits still run from the date the original judgment or reasons were sent, as explained in the letter that was sent with the original judgment. Case Number: 3320545/2021; 3314645/2021; 3307155/2022 1 of 2 EMPLOYMENT TRIBUNALS Claimant: Mrs D Edwin Respondent: Whittington Health NHS Trust RECORD OF A PRELIMINARY HEARING Heard at: Watford (via CVP) On: 5 December 2022 Before: Employment Judge Fredericks Appearances For the claimant: In Person For the respondent: Ms M Sharp (Counsel)

facts.

3.3 the claimant’s e-mail of 29 March 2022 identified the claim by its number and expressed an unreserved and unequivocal desire for the claim to be withdrawn; and

3.4 therefore, the claim ended on 29 March 2022, meaning that the Tribunal should produce a withdrawal judgment to confirm that the claim has ended.

[5]Ms Sharp submitted that the wording of the claimant’s original e-mail, to withdraw the whole claim, could and perhaps should be read as an unequivocal withdrawal of both aspects of the consolidated claim. I have some sympathy with that argument, but the difficulty is that the Tribunal did not interpret the e-mail as an unequivocal withdrawal of the second claim number. This is self-evident from the decision to e-mail in order to ask that point of clarification. I do not, therefore, consider that 3320545/2021 has been withdrawn, and that claim survives. Signed: Employment Judge Fredericks 1 March 2023 Sent to the parties on:28/3/2023 For the tribunal office Case No: 3320545/2021 3307155/2022 EMPLOYMENT TRIBUNALS Claimant: Mrs D Edwin Respondent: Whittington Health NHS Trust