Mrs N Rice v Calderdale and Huddersfield NHS Trust: 6000567/2023
EMPLOYMENT TRIBUNALS
Case No 6000567/2023
Between
Mrs N RiceClaimantCalderdale and Huddersfield NHS TrustRespondent
Before
Employment Judge JamesIn person for claimantMr C Breen (instructed by counsel) for respondentDate 25 June 2024
REASONS
[1]The agreed issues which the tribunal had to determine are set out in Annex A. The proceedings[2]Acas Early Conciliation took place between 3 and 22 March 2023. The claim form was issued on 30 March 2023. The claimant made claims for unfair and wrongful dismissal, disability discrimination, whistle-blowing, and holiday pay. The wrongful dismissal (notice pay) claim has been withdrawn and is dismissed.[3]A preliminary hearing for case management purposes took place on 5 June 2023. A further hearing took place on 26 September 2023, following the provision of further information by the claimant. The issues were finalised, the final hearing dates were set and case management orders were made to ensure the case was ready to proceed and be completed within the allocated hearing time.[4]Reasonable adjustments were discussed at the commencement of the hearing. Regular breaks were taken, as required. The claimant was asked to let the tribunal know if any further breaks were needed, but in the event they were not. The Judge explained to the claimant at the outset how the hearing would proceed:- with preliminary reading by the tribunal to begin with; then the hearing of evidence from the claimant and other witnesses; followed by submissions from the parties; then the tribunal’s decision-making in private, deliberations; and finally, delivery of the judgment verbally.[5]The Judge continued to remind the claimant at the beginning and end of the tribunal day, what to expect next. As is usual where claimants are acting in person, written submissions were provided by Mr Breen to the claimant prior to them being delivered. During cross-examination, passages were read out to the claimant where necessary. There was a gap between the evidence being concluded and submissions being made. During the claimant’s crossexamination of the respondent’s witnesses, when the Judge concluded that the claimant was struggling to compose a question, he précised what the claimant was saying in the form of a question - subject always to the proviso that if the claimant did not think the Judge’s question was what she intended to ask, she was given the opportunity to ask a follow-up question.
The hearing
[6]The hearing took place over seven days. Evidence and submissions on liability/remedy were dealt with on the first five days. The tribunal then sat in private to make its decision. On day seven day, the tribunal gave its decision and reasons. Since the claims did not succeed, it was not necessary to go on to deal with any remedy issues.[7]The tribunal heard evidence from the claimant, her husband Mr Ian Lee Rice, and Louise James her sister. Vikki Sloan attended remotely, under a Witness Order. For the respondent, the tribunal heard from Sarah Wallwork, Eye Clinic Service Manager; Corrina Hampshire, Matron, Head and Neck Services; Karen Lord, Band 6 Sister; Diane Lee, Band 6 Sister; Wendy Hewitt, Outpatient Manager for ENT and Orthopaedic Services; and Azizen Khan, Assistant Director of HR. There was an agreed hearing bundle of 808 pages. Unusually, there were no additions made to that during the hearing.
Findings of fact
[8]The claimant started work for the respondent on 22 February 2016. At the time of the matters about which the claimant complains in these proceedings, she was employed as a Band 3 Ophthalmic Technician. The claimant’s contractual hours were 37.5 hours per week.[9]The main duties of an Ophthalmic technician are: To support the delivery of Ophthalmology, Orthoptic and Optometry services within the Trust and community setting and perform diagnostic tests to aid clinicians investigation and diagnosis of patients attending the Eye Clinic.[10]Prior to her employment commencing, the claimant met with Occupational Health (OH). Reference was made to problems with her foot and to dyslexia.[11]The respondent operates two NHS hospitals providing acute services. They are Huddersfield Royal Infirmary (HRI) at Huddersfield; and Huddersfield and Calderdale Royal Hospital (CRH) at Halifax.[12]The Trust’s Eye Clinic is split over two sites, Calderdale and Acre Mills. At the time of the matters we are concerned with, Mrs Lee had oversight of the eye clinic at Acre Mills and Mrs Lord had oversight of the eye clinic at Calderdale. The claimant worked at the Calderdale site.[13]An OH assessment of the claimant carried out in March 2017 in relation to a recent period of absence noted: 2. Natalie is experiencing frequent episodes of headaches, dizziness and nausea and is fearful of further fainting episodes. She is due to see her GP again next week for review and I have advised we may be able to fast track any referrals the GP may make once booked. 3. Natalie does have some underlying health conditions, for which she receives medication and screening under the care of her GP. Further episodes of absence cannot be ruled out; however I have made Natalie aware of support in managing her health to minimise the risk of ill health in the future.[14]In September 2019 the claimant joined the frailty team at HRI. She worked across that team and the eye clinic.[15]The claimant has dyslexia. To assist her to document her work in patient’s records in frailty, she used an app called powermic mobile, which enabled her to dictate updates to patient’s records. This was used by the claimant in the eye clinic on occasion.[16]The Covid-19 pandemic led to the first lockdown in March 2020. It is well documented that the pandemic placed great strain on the NHS and staff working within it.[17]Sarah Wallwork became the claimant’s line manager on 29 November 2020 and remained so until 31 July 2022. Between August and September 2022, the claimant was managed by Karen Lord and, to a lesser extent, Diane Lee. Victoria Smith was appointed to provide support to the claimant from October 2022 onwards.[18]On 9 March 2021, the claimant was referred to OH due to concerns about a number of short term absences within a 9-month period in 2020. Recommendations were made, including that the claimant limit her hours to no more than 5 per day. The report states: Natalie tells me that she has a long-term back problem which appears to have flared up over the past few months since she commenced full time work in the frailty team with an increased requirement for manual handling. Natalie has, in the past, benefitted from physiotherapy and has indicated a willingness to have further input; as such I will make the necessary referral. I understand that Natalie can often work additional hours (in both her jobs) building up excess hours over the month then taking these back, in the form a reduced number of shifts after a few weeks. With reference to her back problem I think it would be helpful if Natalie could avoid working more than, I suggest, 5 hours extra per week (3 in Ophthalmology which she will need to discuss separately with her manager there) as this will be more beneficial to her than having a longer period of time off after several weeks. Natalie should work within her personal limitations and ask for assistance with manual handling as required. She should avoid fixed, compromised postures wherever possible.[19]In May 2021 the claimant was able to return to full time hours.[20]On 19 May 2021 the claimant raised an issue with Mrs Lord about staff shortages. Mrs Lord replied: I really appreciate your continued hard work and support in general, let alone through out the recent changes we have had. I had no idea about the staff shortages until late this afternoon, it always seems to happen when we have a day off and it is not acceptable for this to keep happening.[21]In July 2021 the claimant asked for changes to her working hours. Mrs Lord agreed to look at the rota. The claimant responded on 28 July 2021: Thanks for your support i could work until 5 30pm on Thursday no problem its not far always good parking in evenings. Just effects Monday morning but hopefully will not be long this is my last efforts. The claimant’s cancer diagnosis[22]The claimant experienced a number of gynaecological related symptoms from January 2021 onwards. Eventually a biopsy was carried out. The claimant was diagnosed with cancer of the uterus (endometrial carcinoma) in September 2021. The claimant was subsequently absent from work between 1 and 12 September 2021.[23]On 1 September 2021 Mr Rice telephoned and spoke to Mrs Wallwork and told her about the claimant’s diagnosis. He asked Mrs Wallwork not to tell Mrs Lord. A few days later Mrs Wallwork spoke with the claimant and said that her colleagues could be told of her diagnosis.[24]Mrs Wallwork spoke with Mrs Lord about the claimant being off sick and the reason for it. Mrs Lord subsequently shared this information with the team at Calderdale, which included Mrs Amanda Auld. Informing colleagues[25]On 7 September 2021 the claimant received a message from her colleague Amanda Auld saying Mrs Lord had told her the claimant had been diagnosed with cancer, and wishing the claimant well. [333][26]On 8 September 2021 the claimant emailed Mrs Wallwork as follows: Can't believe I'm sending you a sick note especially the reason why. I started from Monday so it was a week rather few days. I have called occ health for advice and they report eye clinic will be removed of watch list for covid on Friday she reports its claiming down. My worry is if there risk that covid would delay my operation thats all but Louise says your in on Monday so if u have time I liked to talk over a few worries if thats OK. I thought it was [b]est to tell my work colleagues so they understand any changes in mood while I'm at work and hope they will in [turn] support me.[27]At first blush, this email seems to support the claimant’s argument that Mrs Lord told Mrs Auld about the claimant’s diagnosis, before the claimant had given permission for that to be done. The tribunal is satisfied however, on the basis of the evidence heard, that the email is simply confirmation of what the claimant had already told Mrs Wallwork - that at that stage, she wanted her colleagues to be told. On the balance of probabilities, we accept Mrs Wallwork’s and Mrs Lord’s evidence in that regard.[28]We also note that the claimant did not raise with Mrs Lord or any other manager any issue about confidentiality having been breached in this respect, prior to this claim being submitted. Temporary return to work[29]The claimant returned to work on 12 September 2021. On 14 September Mrs Lord wrote to Donna Watson in OH about the claimant. She said: … NR has been diagnosed with gynaecological cancer (which was the reason for her 3rd absence) and is due to see the specialist on 22/09/21 to discuss her surgery and treatment required going forward. There are going to be more absences due to this diagnosis and wanted some advice with regards to how we support her going forward to ensure we support her under the equality act. Having looked at the attendance policy I was wondering how we go about utilising the trusts special leave policy or potentially extending her triggers due to her cancer diagnosis. This time at the minute is challenging enough for her and we just want to ensure we can support her with anything we can do to help her have one less worry.[30]A further email was sent by Mrs Lord to Mrs Watson on 23 September confirming her understanding, following their meeting, that the Trust could look at extending the sickness absence triggers or not triggering the absence management policy during the claimant’s treatment for cancer. Cancer treatment related absence[31]The claimant commenced a further period of absence on 15 October 2021, following surgery on 14 October 2021 to remove the tumour. She was placed on medication following surgery.[32]During November and December 2021 the claimant exchanged messages with Mrs Lord. Mrs Lord was at all times friendly and supportive and the claimant expressed her thanks for the approach she was taking. There was nothing in these messages to suggest that the claimant was unhappy with Mrs Lord for any reason.[33]Following surgery, the claimant was diagnosed with anxiety and began medication for it. The claimant commenced a phased return to work on 24 January 2022.[34]Prior to the claimant’s return, the claimant met with Mrs Lord to complete a support assessment and wellness recovery plan, noting any required adjustments. It was agreed that the claimant would work with a colleague, Mel, to complete a manual handling assessment and any changes required. It appears that the manual handling assessment was not carried out. At no stage did the claimant raise this as an issue this with her managers. Further, the tribunal understand from the claimant’s evidence that her complaint in relation to reasonable adjustments relates to her return to work in August 2022, not this earlier period.[35]On 21 January 2022 the claimant sent a message to Mrs Lord saying: Thanks for your support I really feel looked after by you and Sarah.x[36]The phased return was reviewed on 4 February 2022. Records of working hours showed that the claimant was on reduced hours between 25 January and the middle of April 2022. The claimant expressed a preference to work in the mornings and this was accommodated. The claimant continued to work on a project she had commenced before her sick leave started. She was employed in a non-patient facing role.[37]Between 7 and 16 February 2022 the claimant was absent from work with a chest infection caused by Covid.[38]On 2 March 2022 the claimant sent an email to Mrs Wallwork and Mrs Lord about the level tests she needed to take in order to progress. She told them: Sad news I'm afraid The trust won't let me just take level tests as my online profile show lower than level 2. They won't even yet me attempt it. Look like next Yr for me. Mrs Wallwork replied: How disappointing! But let's not dwell Karen and I will support you and you'll be on it next week Mrs Lord added: Absolutely, More than happy to support you in any way I can[39]Mrs Wallwork and Mrs Lord were not approached or asked by the claimant for any more support. The claimant did not make a request for one to one tuition for an ACP for the online test or for clinic time to prepare for it. Further, in response to a message in the bundle at page 676, forwarding a link to a progression opportunity for HCAs, the claimant replied: I know Shame tho no math an[d] English at level 2, was meant to go to college but cancer stopped me in tracks. Further sickness absence, May to August 2022[40]On 17 May 2022, the claimant saw her GP about severe headaches she had started to experience on laying down at night. The claimant subsequently emailed Mrs Lord: Morning I have tried 3 time office phone and twice ur phone this morning. U must be busy pls call wen u can but I'm off again today Gp Checking if I need a scan regarding headaches wen I lay down. [As] I also have long term [chronic] back problem the[y] want to check its not herniated disc.[41]The claimant was referred that day to the HRI’s outpatient clinic. She let Mrs Lord know and since Mrs Lord was on shift as clinical Co-ordinator, she went to see the claimant in the eye clinic waiting room.[42]The claimant informed Mrs Lord the same day of the result of the consultation – that she would not be in for the rest of the week, pending a lumber puncture and scan. She was confused as to what type of scan she was going to have. As Clinical Co-ordinator that day, Mrs Lord had access to the claimant’s Medisoft records. Mrs Lord checked those records and confirmed the type of scan the claimant was to undergo. She expressed a concern that the claimant was doing too much and said words to the effect that the claimant was in danger of running herself into the ground if she was not careful.[43]The Claimant did not object to or query why Mrs Lord had checked her Medisoft records. The respondent’s Governance Officer later confirmed that Mrs Lord did not access the claimant’s Electronic Patient (EP) Records on 17 May, or on any other occasion. It was just her Medisoft records that Mrs Lord accessed.[44]On 20 May 2022 the claimant provided a Statement of Fitness for Work confirming that she was not fit for work between, 20 May and 12 August 2022. The fit note gave the reason as ‘anxiety headaches’. The reason was logged in the Trust’s sickness absence records as Headaches/migraines. First alleged protected disclosure 1 – 23 May 2022[45]On 23 May 2022 the claimant sent an email to Mrs Wallwork in which she states: Karen also upset me as she looked at my records to see what Dr had said when I was seem in ophthalmology. It worrying to think my manager seen my records and even more worried if she looked on epr medical records. My health isn't right with [severe] menopause is really hard these headache on laying down is unbearable I'm sitting up to sleep at the minute, last week LP helps a bit had 2 nights where I slept but I'm up again in night. I have spoken to my GP and my CBT therapist and they agree I need to address my anxiety and health issues they say I shouldn't be around work especially on morphine.[46]The claimant relies on the contents of this email as her first protected disclosure. Further emails went back and forth, the conclusion of which was that the claimant did not want to take the allegation any further. Mrs Wallwork told the claimant this was a serious matter and she had to report it if a patient’s records had been accessed wrongly. However, Mrs Wallwork concluded, having spoken with Mrs Lord, that the Medisoft records had not been accessed improperly, and that the matter did not need taking forward formally. No further action was taken therefore.[47]On 23 May 2022 the claimant tried to make a ‘self referral’ to OH. The claimant was advised to ask her manager, or if she had difficulties with that manager, a more senior manager or the matron. [749] Attendance management meeting, July 2022[48]On 6 July 2022 the claimant emailed Mrs Wallwork about an attendance management meeting planned for 15 July 2022. She said she would not be able to attend as she was still waiting to see OH. The claimant also says: I would like to also point out you have the wrong reason to why I'm off work. I can assure you I wouldn't be taken 3mths of work for headaches. My sick note mention headaches as this was been investigated the week I asked for one, where I have spinal fluid removed during a LP. My sick note also mention Anxiety and this is what I'm struggling with along side other medical issues. I would also like to ask you if having a report from CBT therapist to show what I presented at the start of my treatment was like.[49]The meeting went ahead on 15 July 2022 as planned. In a letter to the claimant dated 25 July 2022, following the meeting, Mrs Wallwork agreed a phased return, initially for two weeks with a further phased return using annual leave. They agreed to prepare a WRAP assessment following the planned OH meeting on 8 August 2022. The letter also suggested: After discussing how you are adversely affected by the warm department and uniform, I advised you to discuss uniform with OH so they can provide guidance for light weight uniforms to be issued to you. OH referral[50]On 8 August 2022 the claimant met with OH. The OH report confirms [416-7]: Natalie has been absent from work since early May due to a condition affecting her mental wellbeing. This has been precipitated by her cancer diagnosis which was made in September 2021 and followed by an extensive surgical procedure. This treatment has left Natalie with severe menopausal symptoms and the nature of her cancer is contraindicated to her being prescribed HRT. She is however taking an alternative prescribed medication with some effect. In order to support her mental wellbeing, Natalie has received psychological therapy, finding this very helpful. In addition to the aforementioned problems, Natalie also has a long-term back condition for which she is currently undergoing investigations with the MSK team. She is experiencing very low back pain and altered sensations, particularly when sitting. …. I recommend that Natalie has a phased return, with the first two weeks being supported by the trust and that this is continued for a further two weeks using accrued annual leave. Natalie has asked whether she may be paid for some of her accrued annual leave since she has recently learned that her August pay will be reduced as was her July salary, this matter may need to be discussed with human resources. I gather that Natalie has already had a discussion regarding being provided with lighter weight uniforms to help with her menopause symptoms. As the weather is particularly warm at present her symptoms may well be heightened and in order to reduce the impact, I recommend that Natalie is allowed some additional short breaks to change her uniform if necessary and use other means of cooling down. She should also have regular access to cool drinks. Natalie may also benefit from having a mentor/buddy in the workplace for a few weeks after her return, with whom she can discuss any concerns and worries that may have arisen for her. A specialist chair was also recommended.[51]Mrs Lord does not recall reading this report but does recall discussing it as a team. Following the discussion, on 10 August 2022 Karen Lord emailed the claimant regarding her proposed return to work. The email states: I was just emailing to see how you are and to arrange a meeting to discuss your return to work I believe your sick note is due to finish this week and I feel its important we do a full assessment for your return, revisit the wrap document and see what assistance and support you will need on your return in line with the occupational health report. I am in for the rest of this week so if there is a time and date that suits you best just let me know. We can then plan the 2-week phased return and the extended phased return following this which can be supported using annual leave you have accrued. Look forward to seeing you Mrs Lord did not receive a reply from the claimant to this email. Return to work, August 2022[52]On 15 August 2022, the claimant returned to work from sick leave. Mrs Lord was on leave at that time. Continued flexibility in working hours is evidenced by an email dated 2 September 2022 from Mrs Lord to the claimant, agreeing to her request for the following Thursday off to attend a medical appointment. Mrs Lord also asked the claimant if she wanted to plan an extended phased return, and they could discuss that on Monday if that was easier. [443] the claimant replied: Thank you we can talk over it all on Monday I'm hoping to return to normal hr very soon, Natalie[53]A lighter weight uniform was ordered for the claimant on her return. Pending receipt of that, scrubs were available for the claimant to wear as a temporary measure. They were available from the ENT department next door, but on the claimant’s return, they did not have her size available. Helpfully, the claimant’s sister Mrs James sourced some scrubs from theatres where she worked. There are no documents suggesting this was an ongoing problem for the claimant.[54]During her return to work, the claimant was allocated to work in the Fields Room, which was part of the normal duties of a Band 3 member of staff. It was felt that this would assist the claimant since the room was darker and cooler. The claimant was encouraged to take breaks as required. At no stage did the claimant complain about this work, such as that it was too heavy for her or that she was not able to take breaks. The clamant was able to manager her own workload. When Mrs Lord checked in on the claimant, she told her she was okay. Mrs Lord reminded the claimant to tell her if she was not.[55]The claimant ordered a specialist chair on her return from work. She had been trained to use the relevant systems so would normally order such items for other colleagues who required them. The chair did not arrive for some time.[56]On 31 August 2022 Mrs Lord was asked about carried over annual leave from 2021-2022 and confirmed in an email to Ms Webster that the claimant had 31 hours to ‘sell back’. The claimant was paid for these hours, rather than take them as leave – see page 437. Following the end of the claimant’s employment, Mrs Hampshire re-checked the claimant’s annual leave records and found that half an hour had not been paid from 2021/2022. She was reimbursed for this. Alleged monitoring of work[57]On 14 September 2022, the claimant was working in the stable macular clinic. Two patients’ appointments had been booked incorrectly that day. Both patients were required to be reviewed by a consultant but had been booked into the claimant’s clinic in error. Mrs Lord suggested they be moved to an alternate clinic where a consultant could review them. Instead, the claimant managed to resolve the issue by speaking to another member of staff, who was able to perform the duty.[58]On the balance of probabilities, we find that the claimant did not complain to Mrs Lord about her duties or workload. There are no contemporaneous documents to support the claimant’s complaint in that regard. What contemporaneous documents there are suggest that Mrs lord continued to behave in an entirely appropriate and professional way towards the claimant. See the next paragraph for example. Although the claimant sought a witness order for Vikki Sloan, expecting her to support the claimant’s version of events, Ms Sloan did not, except in minor respects, do so. We accept Mrs Lord’s evidence that she had no concerns about the way that the claimant was performing her duties. She had no reason to instruct others to monitor the claimant’s work, as alleged by the claimant and we find that such monitoring did not take place.[59]On 15 September 2022 the claimant asked to withdraw her offer to work bank holidays as she needed that time at home. Mrs Lord readily agreed the request. Another example of flexibility is contained in an email from Mrs Lord to the claimant on 26 September 2022 informing the claimant that she could attend hospital etc appointments in work time. The claimant had suggested she might need to take annual leave to cover that. See also the reference below to the 8 November 2022 email. Morning huddle – 15 September 2022[60]On 15 September 2022 the usual morning ‘huddle’ took place in the eye clinic, ahead of the shift, to discuss anything of urgency and planning for the shift ahead. During the huddle, a discussion took place about referrals to District Nurses. Mrs Lord felt that the claimant kept talking over her and would not let her finish her sentences. She felt undermined and upset. Miss Lee witnessed the incident and made a statement to the effect that the claimant talked over both her and Mrs Lord.[61]Mrs Lord spoke with Mrs Hampshire later that morning about her experience in that morning’s huddle. She became very upset when discussing the incident. During their discussion, a Band 2 colleague Jane Melnyk came into the room and asked to speak to Mrs Hampshire about her recent appraisal meeting with the claimant. Ms Melnyk told them she was upset because when the claimant had complete her appraisal document, she had recorded some comments that were not correct. Meeting with the claimant[62]It was agreed that Mrs Hampshire and Miss Lee would speak with the claimant with a view to resolving the concerns, both about that morning’s huddle, and Ms Melnyk’s appraisal. The assumption was that these issues could be ‘nipped in the bud’ by an early discussion about them.[63]Unfortunately for all concerned, the meeting with the claimant later that day did not go as planned. Mrs Hampshire and Miss Lee found the claimant was aggressive in her tone of voice and body language. The claimant made comments such as: ‘This is bloody ridiculous’; and ‘Where has this shit come from’.[64]Following that meeting, Ms Melnyk called Mrs Hampshire to report that the claimant had acted aggressively to her following the meeting, telling her she was a ‘back stabber’ and to ‘watch her back’. She later provided a brief statement to that effect. Mrs Hampshire spoke with Ms Webster of HR following the phone call from Jane Melnyk. Ms Webster recommended holding a ‘Seek to Understand’ (STU) meeting with the claimant. Mrs Hampshire duly arranged that meeting.[65]On 16 September 2022 the claimant was handed a letter by Mrs Hampshire in a corridor about the proposed STU meeting. The letter invited the claimant to a meeting to discuss the following matters:• [that she had] Been aggressive towards colleagues• Swearing in the work place• interrupting / undermining your clinic Sister• Interacting in a disrespectful way with your line manager and peers.• Making inappropriate comments about colleagues whilst in work• Being uncooperative regarding the audit proposal The letter continued: For the avoidance of doubt, the meeting is not part of formal disciplinary process, however I need to make you aware that an outcome of this meeting may be that the case is escalated to the formal disciplinary process. It is important that you fully participate in the discussion and that we work together to identify a satisfactory way forward.[66]The claimant became upset during her conversation with Mrs Hampshire about the letter. The tribunal does not accept that Mrs Hampshire smiled or laughed at her reaction. We found Mrs Hampshire’s evidence more credible in that respect, especially since face masks were still being worn. Mrs Sloan told the tribunal that she witnessed ‘a bit of a dispute’ between the two of them. The tribunal finds that the conversation was difficult for both the claimant and Mrs Hampshire. They went into a nearby room to continue the discussion. Mrs Hampshire accepted that in hindsight, it was not appropriate to hand the claimant the letter and have a discussion about it in a corridor.[67]On 23 September 2022, Mrs Hampshire cancelled a MacMillan charity event [474]. The claimant asked Mrs Hampshire why she was being asked to postpone it. In an email to Ms Webster Mrs Hampshire set out the following [465]: Natalie has arranged to do an event in the canteen on Tuesday at CRH to raise money for an external charity, I have spoken to the trust charity and they have concerns about this event. I have asked for this to be postponed as the correct processes have not been followed. She is due to be working in clinic on Tuesday. She is proposing to do a bottle stall with alcohol in the canteen where people can buy a tombola ticket and get the bottle bad which could have alcohol or non alcoholic bottle in it. There isn’t a policy regarding using alcohol on trust premises, however it doesn’t sit comfortably with me. I have spoken to the charity manager who is in the process of writing a policy. The poster she has composted is of a really poor quality, its grammatically incorrect and the charity team reviewed this and asked for it not to be used. It feels like she is running away with the fundraising and is not following any processes. …. I understand that she finds this aspect of the job enjoyable but it is impacting on her day to day work …[68]Mrs Hampshire also told the tribunal during the hearing and the tribunal accepts that at that time, the maximum number of staff were on annual leave and 5 staff were on sick leave, an unavailability rate of 47%. The event would have involved the claimant being away from the clinic, in the canteen. She would not therefore have been available for clinical work. Mrs Hampshire fairly conceded that this was ‘probably not communicated effectively’.[69]The claimant felt that the buddy system was not working as well as it might so she spoke with Alicia Webster in September 2022. Ms Webster agreed that it would be better if the buddy was someone in a managerial position. Victoria Smith was allocated to undertake that role. She had weekly meetings with the claimant after that. In an email from the claimant to Ms Webster on 24 November 2022, the claimant confirmed that Mrs Smith ‘had been lovely and supported me so far’.[70]On 23 September 2022, the claimant made a complaint under the Freedom to Speak Up (FTSU) process. FTSU is a national NHS initiative. The complaint was passed to Mrs Khan, who forwarded it to a colleague, Ms Alicia Webster to look into. The complaint states: ‘Bullying at work after a very hard time off recovering from cancer health issues and mental health. My Manger has it in for me made up and missed out process in managing her complaint to wards me. I really upset now for second week and now matron taken her side and doing the same. im really feeling 10 [steps] back. such a hard year. I feel I don't want to go home and don't want to come to work.’[71]The tribunal accepts Mrs Lord’s evidence that she was not aware that the claimant had made this FTSU complaint. STU meeting[72]On 28 September 2022 the ‘Seek to Understand’ meeting went ahead with the claimant. Also present were Alicia Webster of HR, Corrina Hampshire and Jo Lawson (the claimant’s companion). During the meeting, the claimant interrupted Mrs Hampshire and Ms Webster several times. The claimant became upset during the meeting and requested emergency leave following its conclusion. The claimant was granted three days emergency leave.[73]On 30 September 2022, Mrs Khan asked Ms Webster about the meeting, following the referral of further concerns by the claimant. Ms Webster said to Mrs Khan: Corinna and I did a seek to understand meeting with her Wednesday at Calderdale. Natalie brought a work colleague with her. The meeting was convened due to ongoing inappropriate behaviour which they have spoken to her (and documented) on a number of occasions previously. I thought the meeting went ok. NR has a lot going off at home, and issues in work but has worked here years and has little insight to her behaviours which we talked through at the meeting, and looked at support moving forward.[74]On 3 October 2022 the claimant returned to work from emergency leave..[75]Mrs Hampshire sent a letter to the claimant on 27 October 2022 regarding the 28 September 2022 meeting. The letter confirmed: In relation to your attitude and behaviour, I expect you to behave in line with our Trusts values and behaves in that we aim to care for ourselves and each other in the same way we care for our patients. We aim to be kind and compassionate at all times. This means speaking and behaving in a respectful way toward myself, the sisters in clinic, and your colleagues. During the meeting there were several occasions when you kept interrupting, and it was difficult to discuss some of the issues to you as you continued to talk over Alicia and I. Your colleague stopped you at times to allow us to speak and encouraged you to listen. I would like you to take this feedback on board and listen more to your colleagues as we all want you to succeed and do well, but at times you have a tendency to talk over people and disregard what is being said to you. In addition, as discussed in previous meetings, there have been a number of colleagues who have reported their interactions with you to be inappropriate which has left them feeling upset. I asked you to reflect on how you spoke to colleagues. I confirmed the Trust’s preference is to work positively with you to resolve these matters in a mutually acceptable way. I need to make you aware that your continued inappropriate behaviour will not be tolerated, and our expectation is that you treat and speak to everyone with respect, and if there are any issues, you come and speak to me. I would like to reiterate that if any behaviour displayed falls outside of the Trust’s expectations in terms of our values, then it may result in more formal Trust disciplinary action being taken. You were upset during the meeting, and asked if you may take emergency annual leave, … which I confirmed I would be able to accommodate.[76]On 8 November 2022 the claimant emailed Mrs Lord to inform her that she had been in really bad pain and not slept for two nights due to toothache. She wanted to swap her half day on nine November with that day, so she could get to an appointment with a dentist. Within 30 minutes Mrs Lord confirmed that her request had been granted. FTSU complaint outcome[77]On 14 December 2022, Andrea Gillespie emailed the claimant about her FTSU complaint. The email reads Hi Natalie Last week at a regular monthly FTSU meeting HR manager, Alicia Webster informed me that she is currently dealing with the concerns you raised via Freedom to Speak Up. She also reassured me that you are being supported by your band 7 manager and occupational health. As your concerns are being addressed with[in] the HR process I will be closing your FTSU concern however if you have any reason to contact me again in the future please do not hesitate.[78]Mrs Lord commenced a period of sick leave on 15 December 2022. Miss Lee started to give more management support to the Eye Clinic as a result. Mrs Lord did not return to work until 13 March 2023. Application for Trainee Plaster Technician role[79]The claimant was unhappy working in the eye clinic as a result of the conflicts with managers and treatment which she perceived as being unfair. She therefore applied for the role of Trainee Plaster Technician. After being interviewed by Mrs Hewitt, the claimant received a conditional offer of employment for the role, on 31 January 2023.[80]The role is a training post. The successful applicant is part of the Orthopaedic Practitioner Team. The role involves putting plaster casts on patients and general day to work regarding fractures. It involves lifting work. It is a responsible role, requiring two years of training. Technicians are often required to lift limbs or to hold limbs for another member of staff to wrap the fracture. The trainee is seconded; the effect of this is that if the trainee does not complete the training satisfactorily, there is no role at the end of it. The cost of the training is about £4,000 and requires day release once a week. The academic side is demanding, requiring understanding of anatomy, physiology, practical knowledge regarding casts. The two year period is intense and requires significant commitment from the person in the post.[81]Although the claimant had only received a conditional offer, she resigned with notice from her substantive role on 3 February 2023. She states in her resignation email: Since My return in Aug 2022 after Cancer recovery and mental health, I feel the situation regarding Karen that has never been documented on my part and the way it made me feel at work are still effecting me, it has left me no other option to find myself another Job for my own well being. Enquires about sickness absence[82]In line with standard procedures, Mrs Hewitt asked for details of the claimant’s sickness absence. Having received that, she had some concerns that the claimant had a significant number of absences recorded over the previous two years. The claimant had told Mrs Hewitt at interview that she had taken sick leave due to cancer but that was some time ago and she had recovered. Mrs Hewitt became concerned that the sickness absence details provided to her, suggested a somewhat different story. In mid-February 2023, Mrs Hewitt spoke with Diane Lee at Acre Mills to discuss the claimant’s absences. Miss Lee discussed with Mrs Hewitt the information provided by the electronic e-Roster system, including the reasons cited for the claimant’s absence. The cancer related absences were not counted; nor was the claimant’s Covid-related absence. That still left over 100 days absence during the previous 12 months alone, on five separate occasions.[83]Mrs Hewitt decided to take advice from HRBP. Having done so, she decided to withdraw the offer of employment. The tribunal accepts her oral evidence that she did not do so lightly, knowing the potential consequences for the claimant. She believed however that the claimant had not been entirely open and honest about her sickness absence record and was concerned that the claimant would not be able to give the commitment required by the course or successfully complete it. Retraction of job offer[84]On 21 February 2023, the claimant was told by Mrs Hewitt that the job offer had been retracted. That phone call was no doubt a difficult one for both of them.[85]On 22 February 2023 Mrs Hampshire met with the claimant. She told her that the advert had gone out for the claimant’s role and the interview slots had been booked in. The claimant was told that she could not rescind her notice.[86]The claimant emailed the Chief Executive, Brendan Brown, the same day. She told him: I'm emailing you with great distress. I'm so very upset that my manager and matron has been able to walk all over me and plan a personal attack to get rid of me. I need to discuss this with you as matter of urgency. HR are only making it worse and support them and will not support me at all.[87]This was forwarded by Mrs Khan to HR colleagues. Ms Webster responded, regarding the job offer and subsequent retraction of it.[88]On 24 February 2023 the claimant chased her email up. Mrs Khan spoke with the claimant and then fed back what was said and asked for a response. Ms Webster spoke with the claimant on 28 February 2023. The claimant told Ms Webster she did not want to return to the trust. Nevertheless, Mrs Khan suggested that the Trust may need to reconsider the decision not to rescind the resignation, once she had spoken to the Chief Executive about the case.[89]The claimant subsequently emailed Mrs Khan on 3 March 2023 to say that she did not want to return to her role in the eye clinic, saying: “I can't step back into a place that done this to me”. Mrs Khan replied: As your substantive post is in the eye clinic should you wish to rescind your notice then you could return to work following your period of annual leave. Please let me know if this is something you wish to consider. Separately, we can offer you mediation with any colleague(s) in order to support your return to work. Again if this is something you would like to discuss further please do give me a call. Pay queries[90]On 3 March 2023, the claimant emailed Mrs Khan about the pay which she said was owed to her. This was holiday from 2021/2022; and one week’s missing notice pay.[91]The claimant’s employment formally ended on 12 March 2023.[92]On 17 March 2023, Ms Webster wrote to the claimant, confirming that no further pay was due. She confirmed that the claimant could still return to the eye clinic if she wanted to; and informed her of current vacancies in various departments/locations within the Trust. Vacant posts[93]On 20 March 2023 the claimant asked for further details about two of the posts. On 23 March 2023, Ms Webster confirmed the roles were at Band 2 level and asked the claimant if she wanted to pursue either of them. The claimant did not respond.[94]On 5 June 2023, the claimant was sent a letter by Dr Birkenhead, Medical Director. He had investigated the claimant’s complaint that her patient records had been accessed inappropriately by Mrs Lord. He told the claimant: There was no [evidence] that K Lord, Sister in Ophthalmology accessed your Electronic Patient records; the audit did, however identify that you had accessed your own medical records on several occasions within that period, which as I am sure you are aware is against Trust policy. Relevant law Constructive dismissal
Relevant law
[95]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “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 employer’s conduct”.[96]It is established law that(i) conduct giving rise to a constructive dismissal must involve a fundamental breach (or breaches) of contract by the employer;(ii) the breach(es) must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning.[97]If a fundamental breach is established the next issue is whether the breach was an effective cause of the resignation, or to put it another was, whether the breach played a part in the dismissal (Nottingham County Council v Miekle and Abbey Cars Ltd v Ford EAT 0472/07). In United First Partners Research – v – Carreras 2008 EWCA Civ 1493 the Court of Appeal said that where an employee has mixed reasons for resigning, the resignation would constitute a constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons[98]In this case the Claimant claims breach of the implied term that the employer should not, without reasonable and proper cause, conduct itself in a way that is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence that exists between an employee and her employer. Both limbs of that test are important. Conduct which destroys trust and confidence is not in breach of contract if there is reasonable and proper cause.[99]It is irrelevant that the employer does not intend to damage this relationship, provided that the effect of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it (Woods – v- Car Services (Peterborough) Limited) [1981] ICR 666. It is the impact of the employer’s behaviour (assessed objectively) on the employee that is significant - not the intention of the employer (Malik v BCCI [1997] IRLR 462. It is not however enough to show that the employer has behaved unreasonably although “reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach” -. Buckland v Bournemouth University higher education Corporation 2010 IRLR 445.[100]In Tullettt Prebon v BGC Brokers LP and others 2011 IRLR 420, the Court of Appeal explained the legal test by reference to the recent case of Eminence Property Development Ltd v Heaney 2010 43 EG. 99: "The legal test is whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon or altogether refuse to perform the contract...” “All the circumstances must be taken into account in so far as they bear on an objective assessment of the intention of the contract breaker. That means that motive, while irrelevant if relied upon solely to show the subjective intention of the contract breaker, may be relevant if it is something or it reflects something of which the innocent party was, or a reasonable person in his or her position would have been aware and throws light on the way the alleged repudiatory act would be viewed by such a reasonable person ."[101]The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In Omilaju v Waltham Forest LBC [2005] ICR the Court of Appeal said that the final straw may be relatively insignificant but must not be utterly trivial: The test of whether the employee's trust and confidence has been undermined is objective."[102]A breach of the implied term of trust and confidence is necessarily a repudiatory breach of contract (Morrow v Safeway stores 2002 IRLR 9 and Ahmed v Amnesty International 2009 ICR 1450. Disability discrimination Disability (section 6)[103]A person has a disability if she has a mental or physical impairment; which is long term (i.e. has lasted 12 months or more or is likely to do so); and has a substantial adverse effect on her ability to carry out normal day to day activities (S.6 and Schedule 1 Equality Act 2010). The term ‘normal day to day activities’ includes the ability to participate in professional working life. Discrimination arising from disability (section 15)[104]Section 15 Equality Act 2010 reads:(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.[105]In a disability discrimination claim under section 15, an employment tribunal must make findings in relation to the following: 105.1. The contravention of section 39 of the Equality Act relied on – in this case either section 39(2)(c) – dismissal; or (d) - detriment. 105.2. The contravention relied on by the employee must amount to unfavourable treatment. 105.3. It must be “something arising in consequence of disability”; for example, disability related sickness absence. 105.4. The unfavourable treatment must be because of something arising in consequence of disability. 105.5. If unfavourable treatment is shown to arise for that reason, the tribunal must consider the issue of justification, that is whether the employer can show the treatment was “a proportionate means of achieving a legitimate aim”. 105.6. In addition, the employee must show that the employer knew, or could reasonably have been expected to know, that the employee or applicant had the disability relied on. Knowledge that the something arising led to the unfavourable treatment is not however required. See the decisions of the EAT in T-Systems Ltd v Lewis UKEAT0042/15 and Pnaiser v NHS England [2016] IRLR 170 (EAT).[106]According to Harvey’s encyclopaedia of Employment Law [Division L.3.A(4)(d), at paragraph 377.01]: ‘As stated expressly in the EAT judgment in City of York Council v Grosset UKEAT/0015/16 (1 November 2016, unreported), the test of justification is an objective one to be applied by the tribunal; therefore while keeping the respondent's 'workplace practices and business considerations' firmly at the centre of its reasoning, the ET was nevertheless acting permissibly in reaching a different conclusion to the respondent, taking into account medical evidence available for the first time before the ET. The Court of Appeal in Grosset ([2018] EWCA Civ 1105, [2018] IRLR 746) upheld this reasoning, underlining that 'the test under s 15(1)(b) EqA is an objective one according to which the ET must make its own assessment'. Reasonable adjustments (sections 20 and 21)[107]Section 39(5) of the Equality Act 2010 imposes a duty on an employer to make reasonable adjustments.[108]Section 20 provides that where a provision, criterion or practice (a PCP) applied by or on behalf of an employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable to have to take in order to avoid the disadvantage. The same duty arises where the substantial disadvantage arises from a failure to provide an auxiliary aid or a physical feature of premises.[109]Section 21 of the Equality Act provides that an employer discriminates against a disabled person if it fails to comply with a duty to make reasonable adjustments. This duty necessarily involves the disabled person being more favourably treated in recognition of their special needs.[110]In Environment Agency v Rowan 2008 ICR 218 and General Dynamics Information Technology Ltd v Carranza 2015 IRLR 4, the EAT gave general guidance on the approach to be taken in the reasonable adjustment claims. A tribunal must first identify:(1) the PCP applied by or on behalf of the employer;(2) the identity of non-disabled comparators; and(3) the nature and extent of the substantial disadvantage suffered by the claimant in comparison with those comparators. Once these matters have been identified then the Tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified. The question is whether the PCP ‘bites harder’ on the claimant (Griffiths v Secretary of State for work and Pensions [2017] ICR 150 at #58. There just needs to be a prospect of the step alleviating the substantial disadvantage; there does not need to be not a ‘good’ or a ‘real prospect’ - Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT/0552/10 at #17.[111]A PCP must be more than a one-off act. In Ishola v Transport for London [2020] IRLR 368, Simler J held: The words 'provision, criterion or practice' are not terms of art, but are ordinary English words. They are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words 'act' or 'decision' in addition or instead. As a matter of ordinary language, it was difficult to see what the word 'practice' added to the words if all one-off decisions and acts necessarily qualify as PCPs.[112]The test of reasonableness imports an objective standard. The Statutory Code of Practice on Employment 2011 published by the Equalities and Human Rights Commission contains guidance in Chapter 6 on the duty to make reasonable adjustments. Paragraph 6.28 sets out some of the factors which might be considered in determining whether it is reasonable for an employer to have to take a particular step in order to comply with the duty to make reasonable adjustments. These include whether taking the step would be effective in preventing the substantial disadvantage, the practicability of the step, the cost to the employer and the extent of the employer’s financial and other resources.[113]As for knowledge, for the S.20 EQuA duty to apply, an employer must have actual or constructive knowledge both of the disability and of the disadvantage which is said to arise from it (EQuA para 20, Schedule 8). During their employment, a claimant does not need to suggest any adjustments, for the duty to arise – see Royal Bank of Scotland plc v Ashton [2011] ICR 632. However, when it comes to the tribunal proceedings, a tribunal will only consider the reasonable adjustments that have been suggested by the claimant and which form part of an agreed list of issues - Newcastle City Council v Spires UKEAT/0334/10. Burden of proof[114]Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that person A has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless A can show that he or she did not contravene the provision.[115]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. The tribunal can consider the respondents’ explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others [2006] IRLR 748; Madarassy v Nomura International plc [2007] IRLR 246, CA.)[116]The Court of Appeal in Madarassy, a case brought under the Sex Discrimination Act 1975, held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. LJ Mummery stated at paragraph 56: Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’[117]Further, it is important to recognise the limits of the burden of proof provisions. As Lord Hope stated in Hewage v Grampian Health Board [2012] IRLR 870 at para 32: They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.[118]The relevant time-limit is at section 123(1) Equality Act 2010. The tribunal has jurisdiction if the claim is presented within three months of the act of which complaint is made. By subsection (3), conduct extending over a period is to be treated as done at the end of the period. If the claim is presented outside the primary limitation period, ie the relevant three months, the tribunal may still have jurisdiction if the claim was brought within such other period as the employment tribunal thinks just and equitable. Whistle-blowing[119]Workers have the right under s.47B ERA 1996 not to be subjected to a detriment on the ground that they have made a protected disclosure.[120]Pursuant to s.103A ERA 1996, a dismissal will be regarded as an automatically unfair dismissal if the reason or, if more than one, the principal reason for the dismissal is that the employee made a protected disclosure.[121]A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the types of wrongdoing or failure listed in s.43B(1)(a) to (f) of the ERA 1996. The Claimant relies in respect of each disclosure on s.43B(1)b). That is, he asserts that he disclosed information in Disclosures 1 to 6 that he reasonably believed was in the public interest and tended to show that the Respondent (and in respect of Disclosures 4 and 5, Mr Mostachfi, Mr Assaf, Mr Spitz and Mr Chedin) had failed, was failing or was likely to fail to comply with a legal obligation to which it/he was subject. He also asserts that in respect of Disclosures 3(f) and (g), he disclosed information that he reasonably believed was in the public interest and tended to show that a breach of a legal obligation by the Respondent was being, or was likely to be, deliberately concealed by the[122]In Williams v Michelle Brown AM, UKEAT/0044/19/00 at paragraphs 9 and 10, HHJ Auerbach identified five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub- paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held. Unless all five conditions are satisfied there will not be a qualifying disclosure. In a given case any one or more of them may be in dispute, but in every case, it is a good idea for the Tribunal to work through all five. That is for two reasons. First, it will identify to the reader unambiguously which, if any, of the five conditions are accepted as having been fulfilled in the given case, and which of them are in dispute. Secondly, it may assist the Tribunal to ensure, and to demonstrate, that it has not confused or elided any of the elements, by addressing each in turn, setting out in turn its reasoning and conclusions in relation to those which are in dispute.”[123]As for what might constitute a disclosure of information for the purposes of s.43B ERA, in Kilraine v London Borough of Wandsworth [2018] ICR 1850 CA, Sales LJ provided the following guidance: “30. The concept of ‘information’ as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. Longstaff J made the same point in the Judgment below [2016] IRLR 422, para 30, set out above, and I would respectfully endorse what he says there. Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between ‘information’ on the one hand and ‘allegations’ on the other […] 31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute ‘information’ and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision. […]35. …In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors’ letter in the Cavendish Munro case did not meet that standard.36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by the tribunal in the light of all facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in s43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill J in Chesterton Global Ltd v Nurmohamed [2018] ICR 731, para 8, this has both a subjective element and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.” […] 41. It is true that whether a particular disclosure satisfies the test in section 43B(1) should be assessed in the light of the particular context in which it is made. If, to adapt the example given in the Cavendish Munro case [at paragraph 24], the worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says ‘You are not complying with health and safety requirements’, the statement would derive force from the context in which it was made and taking in combination with that context would constitute a qualifying disclosure. The oral statement then would plainly be made with reference to the factual matters being indicated by the worker at the time that it was made. If such a disclosure was to be relied upon for the purposes of the whistleblowing claim under the protected disclosures regime in Part IVA of the ERA, the meaning of the statement to be derived from its context should be explained in the claim form and in the evidence of the Claimant so that it is clear on what basis the worker alleges that he has a claim under that regime. The employer would then have a fair opportunity to dispute the context relied upon, or whether the oral statement could really be said to incorporate by reference any part of the factual background in this manner.”[124]The issues arising in relation to the Claimant’s beliefs about the information disclosed were reviewed by Linden J in Twist DX v Abbott (UK) Holdings Ltd (UKEAT/0030/30/JOJ), from which the following principles emerge: 124.1. Whether at the time of the alleged disclosure the Claimant held the belief that the information tended to show one or more of the matters specified in s.43B(1)(a)-(f) (“the specified matters”) and, if so, which of those matters, is a subjective question to be decided on the evidence as to the Claimant’s beliefs [para.64]. 124.2. It is important for the ET to identify which of the specified matters are relevant, as this will affect the reasonableness question [para.65]. 124.3. The belief must be as to what the information ‘tends to show’, which is a lower hurdle than having to believe that it ‘does show’ one or more of the specified matters. The fact that the whistleblower may be wrong is not relevant, provided his belief is reasonable [para.66]. 124.4. There is no rule that there must be a reference to a specific legal obligation and/or a statement of the relevant obligations or, alternatively, that the implied reference to legal obligations must be obvious, if the disclosure is to be capable of falling within s.43(B)(1)(b). The cases establish that such a belief may be reasonable despite the fact that it falls so far short of being obvious as to be wrong [para.95].[125]The Court of Appeal considered the ‘public interest’ test in Chesterton Global Ltd v Nurmohamed [2018] ICR 731. The following principles emerge. 125.1. The Tribunal must ask: did the worker believe, at the time he was making it, that the making of the disclosure was in the public interest? [Para.27]. That is the subjective element. 125.2. There is then an objective element: was the belief reasonable? That exercise requires that the Tribunal recognise that there may be more than one reasonable view as to whether a particular disclosure was in the public interest [para.28]. 125.3. The necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. According to Underhill LJ (at para. 29): “That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify after the event by reference to specific matters which the tribunal finds were not in his head at the time, he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential and not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable.” 125.4. While the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it [para. 30]. 125.5. ‘Public interest’ involves a distinction between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest [para. [31]. 125.6. It is still possible that the disclosure of a breach of the Claimant’s own contract may satisfy the public interest test, if a sufficiently large number of other employees share the same interest [para.36].[126]When considering the question of the Claimant’s reasonable belief, it is to be remembered that motive is not the same as belief: Ibrahim v HCA International Ltd [2020] IRLR 224.[127]Section 47B(1) ERA 1996 provides that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. ‘Detriment’ is not defined in the ERA 1996, but applying discrimination case law, the concept is a broad one and there will be a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment: Jesudason v Alder Hay Children’s NHS Foundation Trust [2020] IRLR 374.[128]The initial burden of proof is on the Claimant to establish that a protected disclosure was made and that the ground or reason (that is more than trivial) for detrimental treatment is the protected disclosure. Thereafter, by virtue of s.48(2) ERA 1996, the Respondent must be prepared to show why the detrimental treatment was done and inferences may be drawn in the event that the Respondent’s explanations are unsatisfactory.[129]While the threshold of establishing a qualifying disclosure may be relatively low, it is essential that causation is properly considered. In a detriment case, determining whether a detriment is on the ground that the worker has made a protected disclosure, requires an analysis of the mental processes (conscious or unconscious) of the employer acting as it did: Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust [2019] 9 WLUK 556. It is not sufficient to demonstrate that ‘but for’ the disclosure, the employer’s act or omission would not have taken place. The protected disclosure must have materially influenced the employer’s treatment of the worker: NHS Manchester v Fecitt & Ors [2012] IRLR 164. It is not enough to consider whether the act was ‘related to’ the disclosure in some looser sense.[130]Further, in order to establish causation in a detriment case, a Claimant must establish that the person who subjected him/her to a detriment was personally motivated by the protected disclosure. Another person’s knowledge and motivation cannot be imputed: Malik v Cenkos Securities Plc (UKEAT/0100/17): “It is in any event not clear how a decision-maker, who did not have personal knowledge of the protected disclosure, could be said to have been materially influenced by it to make the decision under challenge. If a decision-maker in that position were to be fixed with liability it would have to be as a result of importing the knowledge and motivation of another to that decision-maker. However, it seems to me that such importation is not permissible in considering why the decision-maker acted as he or she did.” While it would be right to acknowledge that Malik was decided before Royal Mail Group v Jhuti [2020] IRLR 129 (see below), Jhuti was a dismissal case and not a detriment case, the circumstances in which Jhuti will apply are exceptional and the existence of vicarious liability provisions in relation to detriment claims (but not s.103A dismissal claims) means that there is no obvious reason why the Jhuti principle should be imported into detriment cases and there is currently no authority that does so import it.
Conclusions
[131]In arriving at the following conclusions on the issues before the Tribunal, the law has been applied to the facts found above. The Tribunal will not repeat every single fact, in order to keep these reasons to a manageable length. The issues are dealt with in turn.[132]In reaching our conclusions, we have considered the burden of proof under the Equality Act 2010. In all cases however we have been able to arrive at clear conclusions and concluded that the burden of proof has not shifted.[133]The sub-headings below refer to the allegations in the List of Issues in Annex A. Issue 2. Unfair dismissal 2.1 Was the claimant dismissed? In particular, did the respondent do the following things: 2.1.1 On 7 September 2021 Karen Lord disclosed the claimant’s cancer diagnosis to employees at another site without the claimant’s permission.[134]This allegation fails on the facts. We have found that Mrs Lord disclosed the claimant’s cancer diagnosis, after she had been told by Mrs Wallwork that the claimant had agreed that it was okay to do so. The tribunal notes that the claimant made no complaint about this at the time. 2.1.2 In February 2022 Karen Lord pressured the claimant to return to work before her fit note expired and without a risk assessment or ongoing support from Karen Lord or Sarah Wallwork.[135]The claimant has failed to establish this allegation on the facts. 2.1.3 On 17 May 2022, Karen Lord wrongly accessed the claimant’s medical records. Karen Lord was critical of the claimant’s GP and made the following comments ““I don’t know why there doing that, you need to stop all this you’ll end up killing yourself”,…“NO I’m not joking you will end up killing yourself if you don’t stop think you have cancer again””.[136]We have found that Mrs Lord accessed the claimant’s Medisoft records, not her EP Records, in her capacity as Clinical Co-ordinator on the day in question. The reason for this was the claimant’s confusion about the type of scan she was being referred for. As to the second part of this allegation, we have found that Mrs Lord said words to the effect of ‘you’re going to run yourself into the ground if you’re not careful’, words that we conclude were said with the best of intentions. This allegation therefore fails on the facts. 2.1.4 From 15 August 2022 the claimant’s work was monitored by Karen Lord (whether through other people or directly), and the adjustments agreed in the meeting with Sarah Wallwork and Donna Watson in July 2022 were not implemented. The claimant says it was Karen Lord’s responsibility to implement the adjustments.[137]The first part of this allegation fails on the facts. Mrs Lord did not directly or indirectly monitor the claimant’s work. As for the adjustments, see 2.1.13. 2.1.5 Throughout September 2022, Karen Lord influenced the claimant’s colleagues’ behaviour towards her by spreading rumours about the claimant and making negative implications about the claimant. The claimant will provide more detail about this in her witness statement.[138]This allegation fails on the facts. 2.1.6 On 14 September 2022 Karen Lord sent other members of staff to observe the claimant in the stable macular clinic in the guise of offering support and then wrongly criticised the claimant for the way she was dealing with a patient.[139]This allegation fails on the facts. 2.1.7 On 15 September 2022 in the morning huddle Karen Lord was unreasonably critical by her body language, of the claimant’s contribution to the meeting about district nurse referrals.[140]This allegation fails on the facts. The claimant’s behaviour at this meeting and in relation to Ms Melnyk’s appraisal was not felt to be appropriate. The claimant was reasonably challenged about that. 2.1.8 On 15 September 2022 the claimant was called into an ad hoc meeting with Diane Lee and Corrina Hampshire where she was wrongly accused of bullying a colleague and adding incorrect information to an appraisal and being unprofessional/unkind in the meeting that morning.[141]This meeting was ad hoc, because Mrs Hampshire was trying reasonably to deal informally with behaviour which appeared to her to be inappropriate. This had nothing to do with disability. Further, the claimant was not wrongly accused – matters which had been reported to the respondent were put to the claimant. This allegation fails on the facts. 2.1.9 On 16 September 2022 Corrina Hampshire handed the claimant a letter about disciplinary allegations in public in front of a patient, and refused to tell the claimant what it was about or assist her to understand it. The claimant was upset/concerned about the letter and Corrina Hampshire laughed or smiled at the claimant’s reaction.[142]The letter was handed to the claimant when she was in a corridor, which was unfortunate, as Mrs Hampshire rightly and reasonably conceded. The tribunal has accepted Mrs Sloan’s evidence that there was a ‘bit of a dispute’ between the claimant and Mrs Hampshire in the corridor. This is why they then went into an adjoining room. We have not found that Mrs Hampshire was laughing and smiling. On the contrary, this would clearly have been a difficult conversation for both of them. 2.1.10 The claimant understands that statements were taken from members of staff about the claimant before 16 September 2022. On and from 17 September 2022, Alicia Webster and the respondent generally, has failed to provide the claimant with copies of those statements.[143]The statements were provided to management but were not used in a formal disciplinary hearing. There was no reason to disclose them to the claimant. 2.1.11 On 23 September 2022, Corrina Hampshire cancelled a charity event the claimant had arranged.[144]The event was cancelled, but on reasonable grounds. 2.1.12 On 28 September 2022 the claimant was required to attend a disciplinary, or quasi-disciplinary meeting. The claimant says that the allegations made against her were untrue, the hearing was unfair, the claimant’s account was not listened to or recorded, and the minutes of the meeting were inaccurate. The claimant says that she was wrongly accused of being aggressive at the meeting on 15 September 2022.[145]This was an STU meeting, not a formal disciplinary hearing. It is not necessary, for the purposes of the allegations before us, to determine whether or not the matters raised with the claimant were true. The fact is that issues were raised by Mrs Lee, Mrs Lord, and Ms Melnyk and it was appropriate for management to discuss those matters with the claimant informally in an STU meeting. The notes of the meeting reflected management’s version of what happened. Had this been a formal disciplinary hearing, we would have expected the claimant to have been provided with a copy, and to be given the opportunity to amend them; but that is not the case here. 2.1.13 On 3 October 2022 the claimant returned to work and the agreed adjustments (from the meeting in July 2022) were not implemented by Karen Lord. This included an effective buddy system, mediation, occupational health referral and a chair.[146]As for the adjustments agreed in July 2022, the chair was ordered by the claimant on her return from work. As was only to be expected, it took a number of weeks before the chair arrived. The claimant did not raise this as a problem, or ask for her duties to be changed as a result, or to take further leave. As for the uniforms, a lighter uniform was ordered, and the claimant was able to use scrubs in the meantime. She should have been able to access those herself from ENT, but they were not available in her size when she returned. However, her sister, who was working in Theatres at the time, sourced some scrubs there and provided the claimant with them.[147]As for Mrs Lord being responsible for those adjustments, Mrs Lord was on annual leave for the first two weeks of the claimant’s return, and then the claimant was on annual leave in the first week of September. The tribunal accepts that because of the change of managers, and Mrs Lord’s annual leave, the adjustments were not handled as well as they would have been if one person had been responsible and at work on the claimant’s return. The tribunal also notes however that the claimant bears some responsibility, given that Mrs Lord emailed her on 10 August 2022, with a view to carrying out a return to work/WRAP assessment, but the claimant did not reply to that email. 2.1.14 On 27 October 2022 Corrina Hampshire sent the claimant a letter with the outcome of the meeting on 28 September 2022. The claimant says that the outcome was wrong, there was no evidence to support the allegations and did not take account of what the claimant said at the meeting. The recommendations, including mediation, in the letter were not implemented.[148]The tribunal notes that the claimant did not agree with the outcome letter. However, we do not consider that the outcome was wrong or discriminatory. The meeting on 28 September 2022 had given the claimant an opportunity to reflect on how her behaviour impacted others and to resolve matters informally. That opportunity was not taken up; unfortunately, the claimant felt affronted. The tribunal notes that mediation was offered by Ms Webster on 24 November 2022 [504]. It is not clear what happened to that suggestion, save that mediation did not take place. If that was an issue for the claimant however, it was never followed up. Mediation (or the lack of it) does not appear to be mentioned in the claimant’s witness statement. For all these reasons, this allegation fails on the facts. 2.1.15 On 20 December 2022 the claimant received a response from the Speaking Up helpline that her complaints had been passed to HR to address. The claimant’s complaints were not and have not been addressed.[149]On 14 December 2022, the FTSU complaint was closed by Ms Gillespie because she was satisfied that the matters about which the claimant had complained in the FTSU referral, had been dealt with through the STU meeting and subsequent letter. The tribunal notes that the claimant takes a different view; but we conclude that management’s actions in the STU meeting and the follow up letter were reasonable, within the context of an informal process. The opportunity for self-reflection was not taken up by the claimant. If the claimant remained unhappy, it was open to her to raise a formal grievance under that procedure. This allegation fails on the facts too. 2.1.16 Throughout the period from August 2022 to January/February 2023 the claimant’s annual leave was not corrected so that she could not use leave instead of sick days which made her sickness record look worse.[150]The OH report of 8 August, and Mrs Lord’s email of 10 August 2022, clearly envisaged that annual leave could be used during the second half of the phased return to work in August/September 2022. It was identified that the claimant had 31 hours of leave to carry over from the previous year but appears to have decided to take the equivalent in pay for those hours, rather than use the leave. There is no evidence from the claimant that taking that leave was refused her as an option. Rather, the evidence shows that the claimant chose to be paid for these hours instead, and was paid for them. This allegation therefore fails on the facts. 2.2 If the claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?[151]The tribunal notes that there appears to be an issue missed out, as to whether or not any of the matters which we have found occurred as alleged, amounted to a breach of the implied term of trust and confidence. The only allegations raised by the claimant which succeed on the facts, in whole or in part, are issues 2.1.9 to 2.1.13. The Tribunal concludes that those matters do not amount to a breach of the implied term of trust and confidence. There was good reason for all of the matters found, save for the handing to the claimant of a letter in a corridor. That in itself, whilst unfortunate, does not amount to a breach of the implied term. Further, for the reasons given below, the tribunal does not conclude that there was a failure to make reasonable adjustments, within a reasonable period.[152]In light of the tribunal’s conclusions in relation to the alleged breach of contract, it is not necessary to reach a conclusion on the remaining issues in Issue 2. Issue 4. Protected disclosure 4.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide: 4.1.1 What did the claimant say or write? When? To whom? The claimant says she made a disclosures on this occasion: 4.1.1.1 On 23 May 2022 by email to Sarah Wallwork the claimant stated that Karen Lord had accessed her medical records without direct care reasons or consent from the claimant.[153]This disclosure of information was made by the claimant – the email implied that Mrs Lord did not have her consent or proper care reasons to access her records. 4.1.1.2 On 23 September 2022 by email to Andrea Gillespie (Freedom to Speak up) stated that she had been mistreated, her reasonable adjustments had not been implemented and that the allegations against her had not been dealt with fairly or impartially.[154]The email in fact alleges that the claimant had been bullied and that the matron (Mrs Hampshire) had taken her manager’s side. 4.1.2 Did she disclose information?[155]The first disclosure did disclose information. The second disclosure did not, it contained a bare allegation and does not need to be considered further. 4.1.3 Did she believe the disclosure of information was made in the public interest?[156]The tribunal concludes that the claimant did believe that her records had been accessed improperly, and that it was in the public interest to report that. 4.1.4 Was that belief reasonable?[157]The tribunal concludes that the claimant’s belief in the public interest was reasonable, because there is a public interest in NHS medical records, which are sensitive personal information, not being accessed inappropriately. 4.1.5 Did she believe it tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation?[158]The claimant asserts that this was a breach of the Nursing and Midwifery Council Regulations, with which Karen Lord was obliged to comply. The tribunal has not been referred to those Regulations, but notes in any event that improperly accessing NHS medical records would be a breach of GDPR/the Data Protection Act 2018. The respondent accepts that. 4.1.6 Was that belief reasonable?[159]The tribunal concludes that on the facts of this case, the claimant’s belief was not reasonable. The claimant was confused about the type of scan she had been referred for and raised that with Mrs Lord, who in her capacity as the Clinical Coordinator on the day, reasonably checked the claimant’s Medisoft records in order to clarify the position. It was not reasonable for the claimant to conclude otherwise. As for the EP records, the claimant never had any reasonable basis for suggesting that those records had been accessed by Mrs Lord. 4.2 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer.[160]On the basis of the conclusions above, the claimant has not established that she made a protected disclosure in relation to the first disclosure above. In relation to the second alleged disclosure, this does not succeed either, because it did not involve a disclosure of information. 5. Detriment (Employment Rights Act 1996 section 48) 5.1 Did the respondent do the following things: 5.1.1 – 5.1.5 The allegations set out above under constructive unfair dismissal etc.[161]In the light of our above conclusion in relation to issue four, there is no need to consider this or the subsequent allegations/issues under this head. 7. Disability 7.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will 7.1.1 Did she have a physical or mental impairment?[162]In relation to cancer – yes, from September 2021.[163]In relation to dyslexia, yes, from childhood, based on the symptoms set out by the claimant in her disability impact statement at page 72. That evidence was not challenged.[164]In relation to chronic back and coccyx pain, yes, from the end of March 2021 onwards. We note that the 24 March 2021 OH report states: Natalie tells me that she has a long-term back problem which appears to have flared up over the past few months since she commenced full time work in the frailty team with an increased requirement for manual handling. Affecting her working hours, ability to work overtime.[165]In relation to menopause related symptoms, yes, from October/November 2021. These symptoms followed on from the claimant’s hysterectomy in October 2021. Those symptoms included, according to the claimant’s unchallenged evidence on this issue: Hot flushes, Anxiety, Weepiness, Sweating, Mood changes, Sleep problems, Dry mouth. Clinching of my jaw. Extreme fatigue. Brain fog (mixing and forgetting words). Changes of my body shape and weight gain.[166]In relation to anxiety/depression, which the tribunal concludes it is appropriate to consider together, yes, from 12 November 2021, when the claimant’s GP recorded her as ‘feeling down, depressed or hopeless, nearly every day. Trouble concentrating on things, such as reading newspaper – nearly every day’. 7.1.2 Did it have a substantial adverse effect on her ability to carry out dayto-day activities?[167]This is not relevant in relation to cancer, which the respondent accepts was a disability in any event.[168]Anxiety/depression - yes from November 2021 on the basis of the GP record quoted above.[169]Back problem – yes from 4 November 2021, when according to the claimant’s GP records, she was prescribed Oramorph and morphine sulphate tables. We take judicial notice of the fact that these are addictive painkillers, which are only prescribed where necessary.[170]Menopause related symptoms - yes from October/November 2021.[171]Dyslexia - yes. This is longstanding, dating back to well before the claimant’s employment with the respondent started. 7.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?[172]Yes and we have considered that, see above. 7.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?[173]See 7.1.3 above. 7.1.5 Were the effects of the impairment long-term? The Tribunal will decide: 7.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?[174]Dyslexia and cancer yes, in August 2022, when the adjustments date back to. No, in relation to the other impairments, as at that date. 7.1.5.2 if not, were they likely to recur?[175]On the basis of the conclusions above and the factual background relied on, yes in relation to the remaining impairments of anxiety/depression, the back problem and menopause related symptoms. 8. Discrimination arising from disability (Equality Act 2010 section 15) 8.1 Did the respondent treat the claimant unfavourably by: 8.1.1 Withdrawing a job offer (trainee plaster technician) on 20 February 2023.[176]Yes. 8.2 Did the following things arise in consequence of the claimant’s disability: 8.2.1 the claimant’s high level of sickness absence?[177]Yes, most of it was, see further below. 8.3 Was the unfavourable treatment because of any of those things?[178]Yes, see the findings of fact. The last 12 months sickness absence in particular, most of it disability related (93 out of the 103 days absence which was considered), was the reason why Mrs Hewitt withdrew the job offer. 8.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 8.4.1 The recruitment of a candidate who was going to able to fulfil the requirements of the Trainee Plaster Technician role, assist in maintaining the efficiency of the services provided to the population served by the[179]The tribunal concludes that this was a legitimate aim. 8.5 The Tribunal will decide in particular:8.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;8.5.2 could something less discriminatory have been done instead;[180]The tribunal concludes that the treatment was an appropriate and reasonably necessary way to achieve those aims. This was a fixed two-year training post, so there was no opportunity for the claimant to have a trial period in the post. It was an all or nothing decision for Mrs Hewitt at that time. The tribunal accepts that Mrs Hewitt carefully considered her decision, knowing the potential impact it would have on the claimant. The tribunal further considers that Mrs Hewitt was entitled to be concerned that the claimant had represented to her, during the interview, that the sick leave related to cancer and was no longer a concern. The tribunal concludes that in all the circumstances the decision was justified, in light of the overall level of sickness absence, during the 12 months leading up the February 2023, most of it related to anxiety. 8.5.3 how should the needs of the claimant and the respondent be balanced?[181]See above. The tribunal concludes that the balancing exercise should be decided in favour of the respondent. 8.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?[182]Cancer, yes, although cancer related absences were not taken into account by Mrs Hewitt.[183]Dyslexia – yes, from 2016.[184]Anxiety and depression – yes, from the 6 July 2022 email to Mrs Wallwork.[185]The back problem – yes, from the OH report dated 8 August 2022.[186]The menopause related symptoms – yes, from 8 August 2022. 9. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) 9.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?[187]See the conclusions in relation to issue 8.6 above. 9.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 9.2.1 A practice that an ophthalmology technician would work some weeks in excess of the normal contracted hours (in the claimant’s case the normal contracted hours were 37.5 hours and in practice she would work up to 45+ hours in a week);[188]The tribunal notes from pages 791 and 792 that the claimant occasionally worked an extra half hour in 2022 at the beginning and/or end of a shift to set up or clean down. This PCP is therefore made out. 9.2.2 A requirement for someone in the claimant’s role of ophthalmology technician to work a minimum of their contractual hours (in the claimant’s case 37.5 hours per week);[189]This PCP is made out – unsurprisingly, staff are expected to work their contractual hours. 9.2.3 A requirement for someone in the claimant’s role to take no more than one half hour unpaid break a day at lunch time;[190]Yes – that is what the contract says. 9.2.4 That an employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions under the absence management policy;[191]Yes, as with 9.2.2, this is a standard requirement. 9.2.5 That an ophthalmology technician should carry out the normal duties of that role;[192]Yes, see 9.2.2 and 9.2.4. 9.2.6 A practice that the work allocated to a band 3 ophthalmology technician often involved standing up doing heavy work on a machine all morning or all afternoon or sitting down doing heavy work on a machine all morning or all afternoon;[193]On the basis of the evidence and the facts found, the tribunal concludes that the claimant might find the work in the Fields Room heavy in relation to moving the machines towards the patient, in order for the tests to be carried out. 9.2.7 A requirement to have the equivalent of a C in GCSE English and Maths assessed by way of an NHS online functional skills assessment in order to get on to the Trainee Nurse Associate course?[194]This is a requirement. 9.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that: 9.3.1 Because of the claimant’s anxiety and depression she worried about situations at work, about patient care and about making mistakes. The longer the hours she worked, the more stressful work became for her;[195]This disadvantage is not established on the facts, which confirm that the main issue in relation to working hours occurred when the claimant was working in frailty which caused her back problem to flare up. OH recommended the claimant be allowed to stick to her usual hours and the claimant does not raise any complaint about that period. Further, the claimant worked in there during the Covid pandemic. The tribunal also notes that the claimant sold her annual leave, rather than use it to extend her phased return in August/September 2022 and reduce her working hours. 9.3.2 Because of the claimant’s anxiety and depression and menopause symptoms she suffered from fatigue. The longer the hours she worked, the worse her fatigue was at work and at home. Increased fatigue led to increased anxiety and worry;[196]The tribunal concludes that this PCP is made out in relation to longer hours leading to the claimant becoming more fatigued. As for that leading to increased anxiety and worry, however, the claimant has not established in the evidence the extent of any adverse effect on her mental wellbeing of working an extra half an hour or so here and there. The tribunal does not consider it would be proper to assume a substantial disadvantage, in the absence of such evidence. 9.3.3 The longer the hours the claimant worked, the worse pain she suffered in her coccyx and back;[197]The tribunal concludes, on the evidence before us, that it is probable that the longer the hours the claimant worked, the worse the pain she would suffer in her coccyx and back. 9.3.4 If the claimant worked in one position (sitting or standing) doing heavy work for a whole morning or afternoon she suffered increased pain in her coccyx;[198]As in 9.3.3 above. Also, the tribunal notes that the OH report of 8 August 2022 makes reference to a manual handling assessment being carried out. 9.3.5 The claimant’s menopause symptoms led her to suffer about 20-30 hot flushes and sweating a day from November 2021 until about April 2021. As a result, at home she would change her clothes about 4 times a day. She would need to change her clothes in a working day about twice a day. If she was only able to take one break, she could only change her clothes once;[199]This is noted in the OH report, so this has been established. 9.3.6 The claimant’s hot flushes and sweating meant that she needed to drink more frequently. It was difficult for her to get a drink outside break times because she was not allowed to leave her work station unless someone relieved her and she spent a lot of time isolated in one room;[200]Yes in relation to the claimant needing to drink more frequently. However, there is no evidence of the claimant not being allowed to leave her work station, save for a bare assertion by the claimant which is contradicted by her managers and whose evidence on this point we found more credible. 9.3.7 As a result of her cancer and her depression and anxiety she would suffer overwhelming fears about the cancer coming back which would prevent her from focusing on her work and impact on her ability to carry out her normal duties;[201]The tribunal does of course accept that the claimant would be understandably fearful of the cancer returning; most people in her position would be. There is however no evidence before the tribunal that the two impairments mentioned affected her ability to focus on her work or to carry out her normal duties, from August 2022 onwards. Further, nothing in the OH report suggests any adjustments in that regard. 9.3.8 As a result of her anxiety and depression she would sometimes be ‘in crisis’ suffering overwhelming anxiety and stress at work which would prevent her focussing on her work and impact on her ability to carry out her normal duties;[202]See 9.3.7. Further, there is no evidence that the claimant was ‘in crisis’, save for one isolated occasion relating to the way the claimant perceived she was spoken to on 15 September 2022. 9.3.9 Because of her disabilities (save for dyslexia) she had and was more likely to have sickness absences, for example because of fatigue or pain;[203]The tribunal takes judicial notice of the fact that somebody with a number of impairments, of the kind relied on by the claimant, and which amount to disabilities, would be more likely to have sickness absence than somebody without those disabilities. The claimant’s actual sickness absence record bears this out. 9.3.10 Because of her dyslexia her grammar and spelling are very poor (the claimant had a ‘scribe’ for her GCSEs who wrote down her dictated answers)?[204]This is made out and without any intended criticism of the claimant, is apparent from numerous documents in the bundle. 9.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?[205]Conclusions do not need to be reached in relation to disadvantages 9.3.1, 9.3.7 and 9.3.8.[206]As for disadvantages 9.3.2 and 9.3.3, the tribunal concludes that the respondent did not have actual or constructive knowledge of the disadvantages. This is to be contrasted with the position in March 2021, when the specific problems with the claimant’s working hours in frailty were raised. There is no evidence before the tribunal that the claimant raised any issue in relation to the extra half hour she occasionally worked at the beginning or end of a shift following her return to work in August 2022.[207]The tribunal concludes that the respondent did have actual or constructive knowledge of the substantial disadvantages listed at 9.3.4, 9.3.5, 9.3.6, 9.3.9 and 9.3.10. 9.5 What steps could have been taken to avoid the disadvantage? AND 9.6 Was it reasonable for the respondent to have to take those steps and when? The claimant asserts that the respondent should have taken those steps between August 2022 and March 2023 Reasonable steps 9.5.1 Alternating tasks so that the claimant could carry out some lighter work in a different position during the morning or afternoon rather than working in the same position (sitting or standing) on heavy work for the whole morning or afternoon;[208]This and the allegations below relates to the August return to work, not the April return to work - the claimant conceded in cross examination that management acted reasonably in facilitating the earlier return to work. Dealing with the questions raised by issues 9.5 and 9.6 above in relation to step one, and the other steps set out below, the tribunal notes that there is no evidence that the respondent was told by the claimant that working in the Fields room was a problem at that time. This work was allocated to the claimant as a reasonable adjustment, because the Fields Room was cooler than other rooms the claimant could be allocated to work in. The claimant alleged in oral evidence that she complained about the work allocated to her in the FTSU complaint, but the email of 23 September 2022 raises no such issue. This was not therefore a reasonable step. 9.5.2 Facilitating the claimant to work a more flexible working pattern, by for example, facilitating her using her annual leave to reduce the number of shifts she was working in a week when she was suffering from particular fatigue. The claimant says that she could not do this from August 2022 because her relationship with her band 6 sister (Karen Lord) had broken down;[209]This was a reasonable step. The OH report recommended a phased return for the first two weeks, with the following two weeks using accrued annual leave. This step was however taken - the respondent did not fail to take this step. The claimant chose to take the 31 hours carried over from 2021/2022 as a payment in lieu, rather than as leave. 9.5.3 Allowing the claimant to just work her contracted 37.5 hours per week rather than up to 45+ hours per week;[210]There is no evidence that the claimant worked 45+ hours in August/September 2022. After the phased return, she did work the occasional extra half hour or so. This was not something covered in the OH report, not something the claimant was requesting, and not something the claimant was complaining about. Working the extra hours presumably suited her, for financial reasons. Due to the lack of knowledge, this claim necessarily fails. 9.5.4 Not counting the claimant’s disability related absences for the purposes of her sickness record or for triggering the absence management process;[211]From the evidence of Mrs Hewitt, it is apparent that it was the claimant’s absences over the last year up to February 2023 that she was particularly concerned with. The absences on 12 October 2022, between 6 and 11 December 2022, and 13 and 17 February 2023 were not related to the disabilities. The total absence for those three periods was 10 days. It is equally apparent that it was the total number of days as well that Mrs Hewitt was concerned with, not just the frequency of the absences. We are satisfied that the Covid-related absence between 9 and 16 February 2022 was not taken into account.[212]The tribunal concludes that it may be appropriate in some circumstances for an employer to discount some sickness absence; but that where, as here, the total absences were over 100 days in the year leading up to February 2023, it would not have been reasonable for Mrs Hewitt to have discounted over 90 days of that, because it was disability related. 9.5.5 Allowing the claimant to use annual leave to take days off to cope with fatigue so that her sickness absence record was unaffected and she was less likely to trigger the absence management process;[213]See 9.5.2 – using annual leave to supplement the August phased return was agreed. It is apparent that the claimant chose to sell her carried over leave, rather than use it. This may have been for perfectly understandable financial reasons, if the claimant had been on half pay. This was a reasonable step, which was offered to the claimant, but which the claimant chose not to take up. 9.5.6 Allowing the claimant to take ‘carer’s leave’ days so that her sickness absence record was unaffected she was less likely to trigger the absence management process. The claimant says that this was done for another employee;[214]The tribunal has not heard any evidence regarding this issue which does not appear to be dealt with in the claimant’s witness statement. This is not therefore a reasonable step. In any event, it appears to the tribunal as a matter of logic that Carers’ Leave should be used for that purpose; it is not readily apparent how it could have been applied to the claimant’s circumstances. 9.5.7 Providing an effective ‘buddy system’ so that she had someone to talk to if she had fears or anxieties. The claimant says that the system was ineffective once her relationship had broken down with Karen Lord;[215]The tribunal does not consider this can be related to any of the PCPs/substantial disadvantages which are before us. In any event, we note the OH report recommended this in August 2022 and that a mentor was arranged but the claimant subsequently reported that she felt the mentor should be a manager, and Victoria Smith was then appointed to take on the role. The claimant’s email in November 2022 suggests the system was working effectively. 9.5.8 Providing ongoing weekly health and wellbeing update meetings to identify if reasonable adjustments were being made and if the claimant was being supported;[216]This is caught by the case of Tarbuck – holding a meeting to discuss adjustments is not in itself a reasonable adjustment. A failure to hold such a meeting may count against a respondent, if reasonable adjustments have not been carried out; but it is not, itself, actionable. 9.5.9 Allowing the claimant to take additional breaks;[217]This could be a reasonable step and indeed it was recommended in the OH report in August 2022. There was however no complaint by the claimant that this was something she was not able to do. The expectation was that the claimant would work flexibly, both during and after her phased return. The respondent could not have known that the claimant was not taking the necessary breaks. It was something allowed by the respondent and if the claimant was not able to take the breaks, she should have raised it as an issue. Had she done so, breaks would no doubt have been allowed. This is not a step the respondent failed to allow – it was one the claimant failed to take up. 9.5.10 Providing the claimant with one to one tuition from an ACP for the online test;[218]This was not an adjustment which the claimant ever raised with the respondent. She was promised support in a general sense by Mrs Wallwork and Mrs Lord. In the email sent after the claimant had been told she had failed the test, the claimant appeared sanguine; she said she would try again the following year. But then, in her words [page 676], her cancer overtook those plans. In none of these communications did the claimant suggest that this specific adjustment was required, in order the alleviate any disadvantaged. In any event, it is difficult to see how there was any continuing disadvantage, when the claimant did not make any further application or any attempt to take the test again. It was not in these particular circumstances, a reasonable step. 9.5.11 Giving the claimant in clinic time to prepare for the online test?[219]See 9.5.10 above. Again, this was never mentioned by the claimant and never requested by her. Again, it was not in the particular circumstances of this case, a reasonable step. 9.7 Did the respondent fail to take those steps?[220]See 9.6 above. In light of our conclusions, it is not necessary to say more on this issue. Issue 1. Time limits[221]Time limits do not arise, due to our conclusions above. Issue 11. Unauthorised deductions/Holiday Pay (Working Time Regulations 1998) 11.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended? This dispute relates to 31 days holiday carried over from 2021 to 2022.[222]The reference should, presumably, on the basis of the evidence heard, be to 31 hours, not 31 days. In any event, on the basis of the evidence presented to the tribunal, the claimant was paid for these hours, and no further payment is due. This claim therefore fails on the facts. RECONSIDERATION JUDGMENT (1) The claimant’s application dated 2 August 2024 for Reconsideration of the Judgment in relation to which Written Reasons were sent to the parties on 23 July 2024, is refused because there is no reasonable prospect of the original decision being varied or revoked (Rule 72(1) Employment Tribunals Rules of Procedure 2013).
Introduction
[1]The judgment in this case was given orally at the conclusion of the hearing on 25 June 2024. Written reasons were subsequently requested by the claimant and were sent to the parties on 23 July 2024.[2]In a letter dated 2 August 2024, the claimant makes an application for reconsideration of the Judgment. Attached to the application is an annotated copy of the Written Reasons, with numerous comments added by the claimant in red text, setting out why she disagrees with the findings of fact and conclusions.
The Law
[3]Rules 70, 71 and 72 of the Employment Tribunal Rules of Procedure 2013 provide as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process72. (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.[4]Whilst the discretion under the rules is wide under the ‘interests of justice’ test, it is not boundless; it must be exercised judicially and with regard, not just to the interests of the party seeking the review, but also to the interests of the other party and to the public interest requirement that there should, as far as possible, be finality of litigation - Flint v Eastern Electricity Board [1975] ICR 395 at 401, per Phillips J, at 404.[5]Written reasons for the judgment having been sent to the parties on 23 July 2024, and the claimant’s request for reconsideration having been made in writing on 2 August 2024, the application for reconsideration has been made in time.[6]In the covering letter requesting reconsideration, the claimant says that she feels the tribunal: ‘have missed evidence in the bundle and that my claim for harassment wasn’t looked at …. This can be found in the email to the tribunal asking for harassment to be added to my claim shortly after the second hearing in 2023’. It is also asserted by the claimant that the tribunal: ‘have gone more favourable to the respondent’s evidence not fully considered my evidence in the bundle’ (sic). Harassment claim not considered[7]With regard to allegations of harassment, Judge James notes that there were two preliminary hearings for the purposes of case management. It is apparent from the records of those hearings, that lengthy discussions took place at them, in order to identify the issues raised by the claim. According to those records, at no stage during the hearings did the claimant assert that she was bringing claims of harassment. Nor has Judge James been able to find any application to amend the claim to add allegations of harassment, in the digital case file.[8]Further, the parties confirmed at the outset of the final hearing that the list of issues which had been drawn up by the tribunal following those hearings, correctly set out the issues tribunal had to consider. It is plain therefore that allegations of harassment were not considered by the tribunal at the final hearing because no such allegations were properly before it. Preferring the respondent’s witnesses’ evidence[9]Having carefully considered both the content of the claimant’s letter of 2 August 2024 and the annotated Written Reasons attached, it is apparent that the claimant is trying to persuade the tribunal to look again at the findings of fact and conclusions, because she does not agree with them. Whilst it is understood that the claimant does not agree with both the findings of fact and the conclusions, because her claims have been rejected, that is not an adequate reason why the decision should be reconsidered. It must be in the interests of justice to do so. Save that the claimant disagrees with the Judgment for the reasons given, she has not set out why a reconsideration is in the interests of justice in her case.[10]The tribunal made the findings of fact it did, having considered the evidence before the tribunal. This consisted of the documents contained in the agreed bundle to which the tribunal and witnesses were referred to by the parties; the witness statements; and the evidence given by witnesses during the final hearing. The decision of the Employment Tribunal panel members is a unanimous one, arrived at after careful consideration of all of the relevant evidence and relevant legal principles. Nothing in the claimant’s reconsideration application comes close to suggesting to Judge James that the findings of fact are perverse, or that either the findings of fact or the conclusions reached as a result are wrong. Other matters[11]The claimant makes reference to ‘new evidence’ in page 803 to 808 of the final hearing bundle. However, those pages were in the bundle which was before the tribunal. It is not therefore ‘new evidence’. Any submissions, questioning or arguments in relation to those pages should have been dealt with at the hearing. In any event, the allegation before the Tribunal was that Mrs Lord wrongly accessed the claimant’s medical records, not others. To the extent that pages 803 to 808 suggest that others wrongly accessed the claimant’s records (and Judge James makes no such finding), that was not the issue before the Employment Tribunal at the hearing.[12]Reference is also made to the claimant being removed from the list of workers available to work ‘on the bank’. The Judge notes that this was not an allegation before the Employment Tribunal and presumably for that reason, no findings of fact appear to have been made in relation to it.
Conclusion
[13]In these circumstances, Judge James concludes that no reasonable grounds have been put forward as to why it would be in the interests of justice to revoke or vary the decision. The request for reconsideration is therefore refused.