Mrs G McMurdo v Drs McNutt, Gall and Black, T/a Simpson Medical Group: 8000887/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000887/2025

Venue Edinburgh

Hearing 16-20 and 25-26 February 2026

Between

Mrs G McMurdoClaimant

Simpson Medical GroupRespondent

Before

Employment Judge Sangster

Date 16 March 2026

JUDGMENT

The judgment of the Tribunal is that the claimant’s complaints do not succeed and are dismissed.

REASONS

[1]The claimant presented complaints of disability discrimination (direct discrimination, harassment and failure to make reasonable adjustments) and constructive unfair dismissal.

[2]The final hearing was previously listed to take place, commencing on 1 December 2025. That hearing was postponed, as parties were not in a position to proceed. A case management preliminary hearing was conducted instead, at which this hearing was listed, case management orders were issued and, as stated by EJ Cowan in the note which she issued following the case E.T. Z4 (WR) management hearing, the remainder of the day was spent identifying the issues to be determined at the final hearing. EJ Cowan prepared a list of issues, noting that ‘these are different in many ways to the list of issues which was produced for today’s hearing by each party. But the claimant was sure at the end of the hearing today that we had been able to identify all the claims she had been making and that nothing had been missed.’

[3]Despite those case management orders, parties had not agreed a bundle of productions to be used at the final hearing. Instead, parties produced their own bundles as follows: 3.1. The claimant produced a bundle extending to 487 pages, with a further 57 pages being added, with consent, at the hearing; and 3.2. The respondent produced a bundle extending to 539 pages.

[4]The claimant had provided an electronic copy of her bundle only, in advance of the first day of the final hearing. Despite stating in correspondence that she had printed copies, which she would bring to the Tribunal on the first day of the final hearing, she did not do so. She did not have access to an electronic version of her bundle herself that day. Additionally, despite the claimant having sent the bundle to the named representative at Peninsula on 8 January 2026, Ms Hosten, who was representing the respondent at the final hearing, had not been provided with a copy of this by her colleague. In these circumstances, after discussion of preliminary matters on 16 February 2026, the hearing was adjourned to the following day, so that the claimant could provide a hard copy of her bundle for the witness table, and ensure that she was also able to access a copy of that. That also provided Ms Hosten with the opportunity to review the bundle.

[5]The following day, the respondent sought a further delay of proceeding on two grounds: firstly, to continue reviewing the bundle; and secondly, so that Ms Hosten could investigate what she asserted was a potential conflict. The potential conflict related to the fact that Ms Hosten previously worked with the Nursing and Midwifery Council (NMC), in their investigation team. Ms Hosten was unable to explain why that was only being raised at that point, given that the NMC’s involvement was referred to in the pleadings, or why her previous work with the NMC may conflict her from representing the respondent in these proceedings. The claimant confirmed however that, even if it transpired that Ms Hosten had had some involvement in the referrals to the NMC in relation to the claimant, she had no objection to her continuing to represent the respondent in these proceedings. Given that, and the fact that Peninsula were provided with the claimant’s bundle on 8 January 2026, the request for a further delay in the commencement of the hearing was refused.

[6]The claimant gave evidence on her own behalf and called one witness, Connie Weatherstone (CW), an Advanced Nurse Practitioner, employed by the respondent.

[7]The respondent led evidence from the following individuals: 7.1. Dr Christopher Gall (CG); 7.2. Maureen Duthie (MD), Practice Manager for the respondent; 7.3. Dr Andrew McNutt (AM) 7.4. Dr Alan Black (AB); and 7.5. Dr Kathleen Grey (KG), a GP employed by the respondent.

[8]Other individuals referenced in this judgment are: 8.1. Natalie MacNeil (NM), Deputy Practice Manager for the respondent.

Issues to be determined

[9]The issues to be determined were discussed at the start of the hearing. It was agreed that the issues to be determined were as set out in the list of issues prepared by EJ Cowan on 1 December 2025, following detailed discussion that day.

[10]That list of issues is contained in the schedule to this judgment. Findings in Fact

[11]This judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider to decide if the complaints made succeed or fail. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.

[12]The claimant has a number of medical conditions as follows: 12.1. The claimant has experienced migraines since she was 15 years old. When they occur, they are debilitating. She experiences light sensitivity and nausea. On occasion she can also experience cognitive impairment and speech difficulties. Without medication she would not be able to function during a migraine, she would simply require to lie in a dark room until the symptoms passed. She has tried preventative medication, but this has proved unsuccessful. Instead, the claimant takes medication at the onset of a migraine. This will, in most instances, relieve the symptoms. On occasion, however, she requires to lie in a dark room until the symptoms pass. 12.2. The claimant has experienced depression for many years (around 30). She takes prescribed anti-depressant medication to manage her symptoms. She did so from at least the start of 2022, and throughout the time she was employed by the respondent. Were she not doing so, she would experience symptoms such as: significant mood swings, rapidly shifting from low and hopeless to anger and frustration; low motivation and self-esteem; unexpected crying episodes; insomnia, with periods of little sleep for several days followed by “crashes” of 24 hours; and lack of appetite. 12.3. The claimant was formally diagnosed as having fibromyalgia by a Consultant Rheumatologist on 26 June 2024. Her symptoms at that time were, headaches, brain fog, tiredness and exhaustion as well as, over the last 12 months, increasing pain in her right upper back and knees. She first consulted her GP in relation to these symptoms, and raised the possibility of her having fibromyalgia with her GP, in April 2023. From May 2023, she took prescribed pain management medication to seek to alleviate the symptoms of pain, but that was not fully effective in doing so. As a result of her symptoms, she would forget simple things, had difficulty with focusing and processing information and would struggle with stairs or getting up from kneeling.

[13]The respondent is a GP practice, located in Bathgate, which currently has 3 GP partners, as well as a further GP, junior doctors & locums, advanced nurse practitioners, a physiotherapist, practice nurse and health care assistant. It is a busy practice. There are 9 usable consultation rooms. Whilst, as far as possible, the practice seeks to ensure that staff in the practice have continuity of rooms, all rooms are set up for any clinician to use, and there is a sheet placed on the notice board setting out who is using each room each day.

[14]The claimant commenced employment with the respondent, as a Senior Advanced Nurse Practitioner (Senior ANP), on 1 December 2022. She was provided with a contract of employment detailing her terms and conditions. That included a reference to the respondent’s disciplinary and grievance procedures. The respondent’s Employee Handbook was also expressly stated to form part of the claimant’s contract of employment. The Employee Handbook contains the full Disciplinary Policy and Procedure, containing standard provisions. The claimant initially worked 38 hours per week, over 4 days (Monday, Tuesday, Thursday and Friday), and her annual salary was £61,500.

[15]The claimant’s duties involved covering the duty clinician work, as well as independently seeing patients in her own ANP clinic. While a lot of GP practices work with 10 minute appointment slots, the respondent worked with 15 minute appointments, and this is the basis the claimant worked on. Her nonclinical line manager was MD. The GPs in the practice line managed her from a clinical perspective. CW also worked in the practice as an ANP.

[16]At the start of 2023, the claimant informed MD that she experienced migraines and requested blue screens, to be placed on her computer monitor screens. She indicated that this assisted in preventing migraines. MD stated that the claimant should ask the Deputy Practice Manager to order these, and to inform her that this had been approved by MD. The claimant did so, and the blue screens arrived the following day. The claimant had a number of absences in relation to migraines during her employment with the respondent. MD conducted return to work interviews with the claimant after each absence. The claimant also, at some point in 2023, informed AM that she had depression and took anti-depressant medication.

[17]In January 2023, the claimant advised the respondent that the NMC were conducting an investigation into allegations regarding her conduct prior to her employment with the respondent. The respondent was contacted by the NMC in March 2023 in relation to that investigation. They were asked whether they had any concerns in relation to the claimant. They responded that they did not.

[18]From at least December 2023, the claimant has had a parking card for disabled people (a ‘blue badge’).

[19]On 8 January 2024, the claimant asked to reduce her working days from 4 days per week to 3 days per week (38 hours to 28.5 hours, to be worked over Monday, Tuesday and Friday). She stated that this was prompted due to tiredness, and to improve her work life balance. This was agreed and implemented from 1 April 2024.

[20]On 9 February 2024, the claimant received an informal warning in relation to her absence levels, which she indicated to the respondent were as a result of stress, linked to the ongoing NMC investigation and Employment Tribunal proceedings related to her previous employment.

[21]On 15 February 2024, the claimant attended a meeting with the respondent in relation to a number of concerns regarding her clinical practice. The particular concerns were discussed in detail. The outcome was that the claimant was advised not to prescribe specialist medication, and to seek advice from the GPs in the practice more regularly with regards to diagnosis and prescribing decisions. It was also agreed that CG would hold a monthly review of prescribing issues with the claimant.

[22]In around March 2024, AM noticed the claimant had parked her car in one of the practice’s 6 allocated disabled spaces. She did not normally do so, and he was not aware that she was entitled to do so. AM approached the claimant in her car and asked if she was aware it was a disabled parking bay. She indicated that she was aware of that. He stated that it was for individuals who had a blue badge only. She responded that she was aware of that, and stated that her blue badge was displayed in the car’s windscreen. AM had been unaware that the claimant had a blue badge. He informed MD of this, who was also unaware of that. She asked the claimant why she had a blue badge. The claimant informed her this was due to her having fibromyalgia. MD was extremely surprised at this. She had been unaware the claimant had fibromyalgia, and that it was so severe that she qualified for a blue badge. She asked the claimant if she could undertake a risk assessment in relation to the claimant working with that condition. The claimant declined, stating it was not necessary. MD also asked the claimant to provide a copy of her blue badge, as the car park was privately managed and MD understood that the management company had requested this previously, for another employee who parked regularly in the disabled bays in the car park. The claimant refused, as she understood that holders were advised not to provide copies, merely display them.

[23]In April 2024, the claimant’s husband was diagnosed with cancer. He was later informed that he required surgery.

[24]On 16 June 2024, the claimant commenced a period of long term absence due to stress. The stress was caused by a number of factors: principally her husband’s cancer diagnosis, but also the NMC investigation and ongoing Employment Tribunal proceedings related to her previous employment.

[25]During her absence, MD held weekly welfare calls with the claimant. Each call lasted 5-10 minutes. The claimant engaged in discussion with MD on each occasion, providing updates to MD in relation to her health, and the stressors she was experiencing. At the end of each call, MD would ask the claimant whether there was a particular time/day that suited her for a call the following week, and asked whether she should contact the claimant, or the claimant would contact her. The claimant did not, at any point, indicate to MD that she did not want to participate in the calls, or that she would prefer them to be less frequent. Had she done so, MD would have altered the frequency, or agreed an alternative arrangement with the claimant.

[26]The claimant’s husband had an operation on 9 July 2024. On 26 June 2024, the claimant was formally diagnosed with Fibromyalgia.

[27]During the claimant’s absence, it was agreed that AB would return to the practice as a GP partner, working 5 days per week. He had previously worked as a GP with the respondent, prior to the claimant commencing her employment. He requested that he be allocated room 4 when he returned, which was the room he had used when he was previously employed at the practice. This was agreed. This was not discussed with the claimant, as she was on long term sickness absence, and it was not known when (or indeed if) she would return.

[28]On 22 August 2024, the respondent was contacted again by the NMC regarding their ongoing investigation into the claimant (previous contact having been in July 2023). The respondent was asked to respond to a number of questions, including whether they had any concerns about the claimant’s clinical practice or ability to prescribe medication. They responded on 4 September 2024, providing a timeline which detailed a number of prescribing concerns. Those concerns had arisen in the period from September 2023 up to that date (some of which had come to light during the claimant’s absence). Where the respondent had been able to discuss the concerns with the claimant (prior to her absence), they detailed how these had been addressed.

[29]In her weekly call with MD on 30 August 2024, the claimant indicated that she intended to return to work on 17 September 2024. Over the next few weeks the claimant reported to MD, during their weekly calls, that her health continued to improve. Arrangements for the claimant’s return to work were discussed. MD was aware that the claimant had a lengthy commute to work and stressed that the claimant should only drive if she was fit to do so. MD indicated to the claimant that her clinical work would be supervised on her return (on advice from the Medical Defence Union), and she would not require to undertake the role of duty clinician each morning initially. The claimant declined a phased return, as she only worked 3 days per week, and intended to return midweek on the first week. It was agreed that a referral would be made to Occupational Health (OH) in relation to the claimant’s return to work.

[30]The claimant returned to work on 17 September 2024. She was informed that AB had returned to the practice. She was informed that he worked full time and would be, predominantly, using room 4: the room he had used when he previously worked at the practice. She was informed that she would require to work out of two rooms: room 7 on a Monday, and room 3 on a Tuesday and Friday. She did not raise any concerns when informed of that. Each room was set up for use by any medical practitioner, and had a dedicated laptop. The rooms were used by others on days when the claimant was not using that room. The respondent expected that the claimant would simply move any personal equipment from room to room, as required. The claimant did so following her return, and did not raise any concerns in relation to this with anyone. Had she done so, MD would have taken steps to ensure that the claimant principally worked out of one room only. MD did not do so however, as she was unaware that the claimant had any concerns about working from two rooms.

[31]Other than the removal of the requirement to undertake the role of duty clinician, and supervision at the end of each session, the claimant’s role remained the same on her return to work as it was prior to her absence. She continued to independently see patients, as a Senior ANP. Consultation times remained at 15 minutes per patient, as they had always been for the Senior ANP. The claimant did not raise any concerns in relation to consultation times, or her duties, at any time during her employment with the respondent.

[32]The claimant attended a formal return to work interview with MD on 24 September 2024, completing a form recording the discussion during the meeting. It was noted that the claimant’s absence had not been due to a disability. Rather, the reason for the claimant’s absence was stress due to her husband’s diagnosis and treatment, and the ongoing NMC investigation. In relation to ‘details of phased return/restrictions’, it was noted that these had been ‘offered & declined’. The claimant confirmed she was fit to work, and both MD and the claimant signed the form that day. She was given the opportunity to raise any further issues, highlight concerns or indicate that adjustments were required, but did not do so. The box on the form, entitled ‘Employee comments’ was left blank.

[33]During the claimant’s absence from work, a number of further prescribing issues had come to light, through review of records, as well as patient complaints. On her return to work, as advised by the MDU, the respondent held twice daily supervision sessions with the claimant, after the morning and afternoon clinics, to review the decisions taken during each session. Responsibility for conducting this supervision was split amongst the three partners and the remaining GP in the practice, KG, depending on who was able to conduct supervision that day. As well as conducting a review at the end of the morning/afternoon session, that individual would be available throughout the session, should the claimant have any queries. The same process was in place for supervision of trainee/junior doctors. The expectation was that one or two issues would be identified per week, but it transpired that 1-2 issues were identified each day in relation to the claimant’s work.

[34]During a supervision session on 7 October 2024, AB discussed with the claimant an asthmatic patient, where the claimant had prescribed propranolol. AB indicated that propranolol was contraindicated for individuals with asthma, and had the potential of inducing an exacerbation of symptoms. The claimant was initially unwilling to accept that advice from AB. She only did so once she had sought further advice from CG, who confirmed what AB had stated.

[35]An OH assessment was conducted on 14 October 2024. The claimant understood that the purpose of this assessment was to ensure that she had adequate support in relation to her return to work. In the report provided by OH to the respondent, which was copied to the claimant, they indicated that the claimant had been referred following an absence for low mood and insomnia, and the purpose of the referral was ‘to be sure that she is safe to work after such a difficult time and if there are any adjustments required for her.’ The report concluded that the claimant was ‘fit for full duties and hours’. (The other options, not selected by OH included ‘fit with restrictions’, ‘fit with adjustments to duties’ and ‘fit with modified hours and duties’). Within the body of the report, it was noted that the claimant’s mood was good and she had returned to a normal sleep pattern. It was noted that the claimant had returned to work 4 weeks ago and was ‘managing her clinics with no issue, completing her work on time, and has no issues with concentration, focus or memory.’ It was also noted that the claimant was aware of the support systems available to her and felt that management were ‘very supportive’. Under the heading of ‘details of work adjustments or modifications which could facilitate their rehabilitation/ return to work’ the following was noted: ‘In relation to the room issues raised, [the claimant] advised that she uses the same room for 2 out of her 3 working days. She is aware that she requires to adapt to this due to room constraints, and is happy to do so. She plans to visit her optician to request blue tinted spectacles in the near future which she feels should help. I would advise that an updated Display Screen Equipment (DSE) risk assessment is completed by management to ensure that any issues are identified and reasonable adjustments or control measures implemented as required. As previously advised by Occupational Health, it may be helpful to use the Dealing Positively with Stress at Work Policy on HR online to identify workplace issues or supports required. In respect of her driving, [the claimant] advised that she does have a Blue Badge, however driving/parking is her personal responsibility and she is aware of this.’

[36]Following receipt of the OH report, MD provided the claimant with DSE and stress risk assessment forms to complete, which she did. The claimant did not raise any particular concerns in the forms. MD discussed the OH report and the forms with the claimant, once the claimant had completed them, and then placed them in the claimant’s file, as no action was highlighted as being required.

[37]In/around November 2024, during a supervision session with AB, AB queried why the claimant had stated that a patient had an abnormal liver function test result, despite the patient having a normal result, to justify a referral for vitamin D analysis. He noted that none of the criteria for ordering this expensive test appeared to be present, which the claimant accepted. AB highlighted to the claimant that it was important not to lie when requesting tests for patients.

[38]The respondent encouraged all staff to meet together during morning coffee break. From the commencement of the claimant’s employment, she chose not to do so. She preferred to spend her morning break outside or in her car, and to do the same over the lunch break. This continued when she returned to work after her sickness absence.

[39]On/around 11 November 2024, the claimant sent a WhatsApp message to CG stating that she did not feel part of the team, but she did not want him to share that with anyone or take action. She stated it was probably just her imagination.

[40]At the start of November 2024, the respondent sought advice regarding how to address concerns they had in relation to the claimant’s clinical practice (arising through supervision sessions and patient complaints). It was determined that an investigation should be conducted, to gather relevant information. Peninsula were appointed to conduct this. They obtained statements from MD and each of the GPs in the practice in weeks commencing 11 & 18 November 2024. On 19 November 2024, the claimant was asked to attend a disciplinary investigation meeting, to be held on Friday 22 November 2024. She was not informed what was to be discussed at that investigation meeting.

[41]On 21 November 2024, the claimant was informed that the NMC had concluded that there was no case to answer in relation to the allegations made regarding the claimant’s conduct prior to her employment with the respondent. They determined that no further actions should be taken, and the case was closed. The NMC had also considered the concerns the respondent had raised, in September 2024, in response to enquiries from the NMC.

[42]The claimant attended the investigation meeting on 22 November 2024. It was conducted by a representative from Peninsula. The claimant was accompanied by CW. She had requested that the meeting be postponed, so that her trade union representative could attend (they were unavailable on the date proposed), but that request was refused by the respondent. They stated that there was no right to be accompanied at an investigation meeting. The respondent’s disciplinary procedure does not provide for any right to be accompanied at investigation meetings. At the conclusion of the meeting, the claimant was advised that she was suspended pending further investigation into allegations of misconduct, and a disciplinary hearing would be convened.

[43]On 3 December 2024, the claimant’s trade union representative contacted NM. He indicated that he was unavailable on 12 & 13 December 2024, the dates initially proposed for the disciplinary hearing. He requested details of the allegations to be considered at the disciplinary hearing, as well as a copy of the investigation report, and all supporting documents. NM indicated that she intended to provide this, with an invite letter, once the date had been agreed. The claimant’s trade union representative indicated that he could not estimate how long would be required to prepare for the hearing, without all the information he requested. He suggested there was a ‘stalemate’ as a result.

[44]On 6 December 2024, the claimant was invited to a disciplinary hearing, to take place on 17 December 2024. She was provided with an Investigation Report together with all supporting documentation, including the witness statements from the GPs within the practice and MD, patient complaints and the minutes of the investigation meeting. The letter stated that hearing would discuss the following matters of concern, which, if established, may be considered gross misconduct: ‘a. It is alleged that you incorrectly prescribed medication to patients. Examples being and not limited to: i. It is alleged that on the 30th April 2024 you prescribed a patient Oxybutynin tablets 2.5mg rather than the required Oxycodone 5mg/5ml liquid. ii. It is alleged that on the 23rd September 2024 you prescribed a patient clobetasol rather than the required clobetasone. iii. It is alleged that on the 19th November 2024 you prescribed a patient a daily dose of 50,000 units of Vitamin D replacement, even though the recommended daily dose is 800 units. b. It is further alleged that as a result of the above allegations you provided inadequate patient care.’

[45]These matters had not previously been reported to the NMC by the respondent in their correspondence of 4 September 2025.

[46]In his witness statement, AB had set out 9 examples of the claimant’s practice which he had found, in the supervision sessions which he conducted with the claimant, to be ‘unusual, harmful or dishonest’. In some of the examples he noted that the claimant had refused or failed to act on his advice/recommendations. He concluded his statement by stating ‘Alongside the accumulating clinical errors, [the claimant] continues to demonstrate an unreceptive and disrespectful attitude to feedback. Advice from me is met with considerable resistance during the feedback sessions and sometimes further unprofessional behaviour with disparaging comments to other members of the team. I therefore have no confidence in her ability to return to an unsupervised role or that further remedial work would be beneficial to either party.’ The claimant reviewed AB’s statement, along with the other witness statements, when she received these on 6 December 2024.

[47]On the morning of 7 December 2024, at 00:51, the claimant sent an email expressing interest in an ANP position in a different Medical Practice.

[48]On 11 December 2024, the disciplinary hearing was re-scheduled to 20 December 2024, at the claimant’s request.

[49]On the morning of 17 December 2024, the claimant telephoned MD to inform her that she was resigning from her employment. She asked to be released immediately, so she could start alternative employment. MD consulted with the GP partners and reverted to the claimant to confirm that the respondent agreed that she did not require to work her notice period and could be released immediately. The claimant followed up with an email that afternoon stating: ‘I am writing to give notice to resign my position with immediate effect as agreed via telephone call with Maureen this morning. I have loved working at Simpson’s and wish you's all the best for the future. Thank you for all the support you have provided during my time with you and your company. Hope you have a lovely Christmas!’

[50]MD subsequently asked the claimant whether she wished to reconsider, and retract her resignation. The claimant declined to do so.

[51]On/around 30 December 2024, the respondent made a further referral to the NMC regarding the claimant, on the advice of the MDU. Within that referral, which was written by AB on behalf of the respondent, he stated ‘I would like to record formally that my colleagues and I hold no personal grudge against [the claimant] and wish her well for the future, however, our indemnifier, the MDU, advised us that as [the claimant] has left her current post to avoid supervision to work in an unsupervised role we are obliged to refer her to the regulator.’ He detailed within the referral the concerns which had arisen in relation to the claimant in the period from March 2023 to November 2024, as he had been advised to do by the MDU, and also the NMC themselves, when he called their helpline to enquire how he should address matters.

[52]The claimant commenced alternative employment on 6 January 2025, earning £600 gross per week, for 20 hours work. The NMC indicated that, pending the outcome of the referral made by the respondent on 30 December 2024, the claimant required to have direct supervision. Her new employer was unable to accommodate that and her employment with them terminated on 3 February 2025. Submissions Claimant’s submissions

[53]The claimant provided a 6 page closing submission, which she supplemented orally. In summary, she stated: 53.1. She was a disabled person, and the respondent was aware of that, in relation to each condition relied upon. 53.2. The respondent failed to make reasonable adjustments. 53.3. The cumulative conduct amounted to a fundamental breach of trust and confidence. She was constructively unfairly dismissed. 53.4. The second NMC referral materially contributed to her loss and an ACAS uplift should be considered.

[54]It should be noted that, in some respects (for example, elements of the submission regarding the reasonable adjustments complaint) the claimant submitted that the Tribunal should reach conclusions on issues which were different to those on the list of issues. It was not appropriate for the Tribunal to do so. The Tribunal confined its decision to those issues documented on the list of issues, agreed prior to the commencement of the final hearing, which is replicated in the schedule to this Judgment. Respondent’s submissions

[55]The respondent lodged a 25 page closing submission, which they spoke to orally. They summarised, from their perspective, the evidence, and in summary submitted: 55.1. The claimant was not a disabled person at the relevant times. Failing which, the respondent had no actual or constructive knowledge of her disabilities. 55.2. In relation the complaints of direct discrimination and harassment, the treatment/conduct asserted was not because of/related to disability. 55.3. The claimant has not identified how the PCPs asserted placed her at any substantial disadvantage, as a result of disabilities, in her reasonable adjustments complaint. 55.4. The claimant resigned because she secured alternative employment, and to avoid disciplinary proceedings, not in response to a repudiatory breach, which did not occur. The respondent was supportive of the claimant during her employment, but required to take action to address the errors identified in the claimant’s practice, and the complaints received. They followed a fair procedure when doing so. Relevant Law Disability Status

Relevant Law

[56]Section 6(1) of the Equality Act 2010 (EqA) provides: ‘A person (P) has a disability if — P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.’

[57]Schedule 1 EqA contains supplementary provisions in relation to the determination of disability. Paragraph 2 states: ‘(1) The effect of an impairment is long-term if -(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.’

[58]Likely to recur means that ‘it could well happen’ (Boyle v SCA Packaging Ltd

2009 ICR 1056

, HL).

[59]Paragraph 5 states: ‘(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if –(a) measures are being taken to treat or correct it; and

(b) but for that, it would be likely to have that effect…’

[60]The Equality and Human Rights Commission: Code of Practice on Employment (2011), at Appendix 1, sets out guidance on the meaning of disability. It states at paragraph 7 that ‘There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause.’

[61]At paragraph 16 it states ‘Someone with impairment may be receiving medical or other treatment which alleviates or removes the effects (although not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if the substantial adverse effects are not likely to occur even if the treatment stops (that is, the impairment has been cured).’

[62]The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (the Guidance) does not itself impose legal obligations, but the Tribunal must take it into account where relevant (Schedule one, Part two, paragraph 12 EqA).

[63]The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and states ‘The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.’

[64]Paragraph B1 should be read in conjunction with Section D of the Guidance, which considers what is meant by ‘normal day-to-day activities’.

[65]Paragraph D2 states that it is not possible to provide an exhaustive list of dayto-day activities.

[66]Paragraph D3 Provides that: ‘In general, day-to-day activities are things that people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.’

[67]In Goodwin v Patent Office

[1999] IRLR 4

, the EAT held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are: 67.1. Does the person have a physical or mental impairment? 67.2. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? 67.3. Is that effect substantial? 67.4. Is that effect long-term?

[68]The burden of proof is on a claimant to show that he or she satisfies the statutory definition of disability. Direct Discrimination

[69]Section 13(1) EqA states: ‘A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’

[70]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed

[2009] IRLR 884

the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council

[1990] IRLR 288

and

(ii) in Nagaragan v London Regional Transport

[1999] IRLR 572

. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not inherently discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another

[2009] UKSC 15

[71]For direct discrimination to occur, the relevant protected characteristic needs to be a cause of the less favourable treatment ‘but does not need to be the only or even the main cause’ (paragraph 3.11, EHRC: Code of Practice on Employment (2011)). The protected characteristic does however require to have a ‘significant influence on the outcome’ (Nagarajan v London Regional Transport

1999 ICR 877

). Failure to make reasonable adjustments

[72]Section 20 EqA states: ‘Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.’

[73]The duty comprises three requirements. The first requirement is a ‘requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.’ The third requirement is a ‘requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid’.

[74]Section 21 EqA provides that a failure to comply with the first or third requirement is a failure to comply with a duty to make reasonable adjustments and that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[75]Further provisions in Schedule 8, Part 3 EqA provide that the duty is not triggered if the employer did not know, or could not reasonably be expected to know that the claimant had a disability and that the provision, criteria or practice is likely to place the claimant at the identified substantial disadvantage. Harassment

[76]Section 26(1) EqA states that: ‘(1) A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.’

[77]There are accordingly 3 essential elements of a harassment claim under section 26(1), namely(i) unwanted conduct,

(ii) that has the proscribed purpose or effect and

(iii) which relates to a relevant protected characteristic.

[78]Section 26(4) EqA states that: ‘(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;

(b) the other circumstances of the case;

[79]The EHRC: Code of Practice on Employment (2011) explains, at paragraphs 7.9-7.11, that ‘related to’ has a broad meaning. It occurs where there is a connection with the protected characteristic. Conduct does not have to be ‘because of’ the protected characteristic.

[80]In Logo v Payone GMBH & others

[2025] EAT 95

, HHJ Tayler reviewed the requirements for a complaint of harassment, setting out, in paragraphs 8-23 of his judgment, a useful summary of the constituent parts of a complaint of this nature, and the case law/established principles relating to each.

[81]In Pemberton v Inwood

[2018] IRLR 542

, CA, Lord Justice Underhill stated: ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances — subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.’

[82]Not all unwanted conduct will be deemed to have the proscribed effect. In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, Mr Justice Underhill, in the EAT, stated ‘not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’ Mr Justice Langstaff affirmed this view in Betsi Cadwaladr University Health Board v Hughes and ors

UKEAT/0179/13

, stating ‘The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.’ Burden of Proof

[83]Section 136 EqA provides: ‘If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.’

[84]There is accordingly a two-stage process in applying the burden of proof provisions in discrimination cases, explained in the authorities of Igen v Wong

[2005] IRLR 258

, and Madarassy v Nomura International Plc

[2007] IRLR 246

, both from the Court of Appeal. The claimant must first establish a first base or prima facie case of direct discrimination or harassment by reference to the facts made out. If the claimant does so, the burden of proof shifts to the respondent at the second stage to prove that they did not commit those unlawful acts. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the Tribunal to conclude that the complaint should be upheld. If the explanation is adequate, that conclusion is not reached.

[85]In Madarassy, it was held that the burden of proof does not shift to the employer simply by a claimant establishing that they have a protected characteristic and that there was a difference in treatment. Those facts only indicate the possibility of discrimination. They are not, of themselves, sufficient material on which the tribunal ‘could conclude’ that, on a balance of probabilities, the respondent had committed an unlawful act of discrimination. The Tribunal has, at the first stage, no regard to evidence as to the respondent’s explanation for its conduct, but the Tribunal must have regard to all other evidence relevant to the question of whether the alleged unlawful act occurred, it being immaterial whether the evidence is adduced by the claimant or the respondent, or whether it supports or contradicts the claimant’s case, as explained in Laing v Manchester City Council

[2006] IRLR 748

, an EAT authority approved by the Court of Appeal in Madarassy. Constructive Unfair Dismissal

[86]Employees with more than two years' continuous employment have the right not to be unfairly dismissed, by virtue of s94 ERA. 'Dismissal' is defined in s95(1) ERA to include what is generally referred to as constructive dismissal. Constructive dismissal occurs where the employee terminates the contract under which he/she is employed (with or without notice) in circumstances in which he/she is entitled to terminate it by reason of the employer's conduct (s95(1)(c) ERA).

[87]The test for whether an employee is entitled to terminate his contract of employment is a contractual one. The Tribunal requires to determine whether the employer has acted in a way amounting to a repudiatory breach of the contract, or shown an intention not to be bound by an essential term of the contract (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

). For this purpose, the essential terms of any contract of employment include the implied term that the employer will not, without reasonable and proper cause, act in such a way as is calculated or likely to destroy or seriously damage the mutual trust and confidence between the parties (Malik v Bank of Credit and Commerce International Ltd

[1998] AC 20

[88]Conduct calculated or likely to destroy mutual trust and confidence may be a single act. Alternatively, there may be a series of acts or omissions culminating in a 'last straw' (Lewis v Motorworld Garages Ltd

[1986] ICR 157

[89]As to what can constitute the last straw, the Court of Appeal in Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

confirmed that the act or omission relied on need not be unreasonable or blameworthy (although it will usually be so), but it must in some way contribute to the breach of the implied obligation of trust and confidence. Necessarily, for there to be a last straw, there must have been earlier acts or omissions of sufficient significance that the addition of a last straw takes the employer's overall conduct across the threshold. An entirely innocuous act on the part of the employer cannot however be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in the employer.

[90]In order for there to be a constructive dismissal, there must be a breach by the employer of an essential term, such as the trust and confidence obligation, and the employee must resign in response to that breach (although that need not be the sole reason - see Nottinghamshire County Council v Meikle

[2004] IRLR 703

). The right to treat the contract as repudiated must also not have been lost by the employee affirming the contract prior to resigning.

[91]The Court of Appeal in Kaur v Leeds Teaching Hospital NHS Trust

[2018] IRLR 833

set out guidance on the questions it will normally be sufficient for Tribunals to ask in order to decide whether an employee has been constructively dismissed, namely: 91.1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? 91.2. Has he or she affirmed the contract since that act? 91.3. If not, was that act (or omission) by itself a repudiatory breach of contract? 91.4. If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the implied term of trust and confidence? 91.5. Did the employee resign in response (or partly in response) to that breach?

[92]If an employee establishes that they have been constructively dismissed, the Tribunal must determine whether the dismissal was fair or unfair, applying the provisions of s98 ERA. It is for the employer to show the reason or principal reason for the dismissal, and that the reason shown is a potentially fair one within s98 ERA. If that is shown, it is then for the Tribunal to determine, the burden of proof at this point being neutral, whether in all the circumstances, having regard to the size and administrative resources of the employer, and in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the reason as a sufficient reason to dismiss the employee (s98(4) ERA). In applying s98(4) ERA the Tribunal must not substitute its own view for the matter for that of the employer, but must apply an objective test of whether dismissal was in the circumstances within the range of reasonable responses open to a reasonable employer. Discussion & Decision Observations on Evidence

[93]The claimant stated in her evidence in chief that: 93.1. the treatment asserted at 2.1.2 of the list of issues did not occur because of disability; and 93.2. the conduct asserted at 3.1.2, 3.1.3, 3.1.5 and 3.1.6 of the list of issues was not related to disability.

[94]Those complaints cannot, accordingly, succeed and are dismissed. Disability Status

[95]The Tribunal’s conclusions, in relation to questions posed in Goodwin v Patent Office, regarding each impairment relied upon, are set out below. Migraine

[96]Does the claimant have a physical or mental impairment? The Tribunal accepted that the claimant experiences migraines and this amounts to a physical impairment.

[97]Was there an adverse effect on the claimant’s ability to carry out day-to- day activities as a result of the impairments? The Tribunal’s findings in relation to this are set out in paragraph 12.1 above. The Tribunal concluded that there was an adverse effect on the claimant’s ability to carry out day-today activities, particularly when considering what the position would be if the claimant were not taking prescribed medication.

[98]Was that effect substantial? The Tribunal was satisfied that the adverse effects on the claimant’s ability to carry out day-to-day activities when she was experiencing a migraine, as identified in paragraph 12.1 above, were substantial. They were clearly more than minor or trivial.

[99]Was that effect long-term? While the effects were not continuous, they were likely to recur. Taking into account paragraph 2(2) of Schedule 1 EqA, the Tribunal was satisfied that the substantial adverse effects were long-term by the time the claimant commenced employment with the respondent. They had lasted well over a year by that point.

[100]For these reasons the Tribunal concluded that the claimant was a disabled person, as a result of migraine, throughout the period she was employed by the respondent. Depression

[101]Does the claimant have a physical or mental impairment? The Tribunal accepted that the claimant has depression, and this amounts to a mental impairment.

[102]Was there an adverse effect on the claimant’s ability to carry out day-to- day activities as a result of the impairments? The Tribunal’s findings in relation to this are set out in paragraph 12.2 above. The Tribunal concluded that there was an adverse effect on the claimant’s ability to carry out day-today activities, particularly when considering what the position would be if the claimant were not taking prescribed medication.

[103]Was that effect substantial? The Tribunal was satisfied that the adverse effects on the claimant’s ability to carry out day-to-day activities, as identified in paragraph 12.2 above, would be substantial (i.e. more than minor or trivial), if she were not taking prescribed medication.

[104]Was that effect long-term? The Tribunal was satisfied that the substantial adverse effects were long-term by the time the claimant commenced employment with the respondent. They had lasted well over a year by that point.

[105]For these reasons the Tribunal concluded that the claimant was a disabled person, as a result of depression, throughout the period she was employed by the respondent. Fibromyalgia

[106]Does the claimant have a physical or mental impairment? The Tribunal accepted that the claimant has fibromyalgia and this amounts to a physical impairment.

[107]Was there an adverse effect on the claimant’s ability to carry out day-to- day activities as a result of the impairments? The Tribunal’s findings in relation to this are set out in paragraph 12.3 above. The Tribunal concluded that there was an adverse effect on the claimant’s ability to carry out day-today activities, particularly when considering what the position would be if the claimant were not taking prescribed pain medication.

[108]Was that effect substantial? The Tribunal was satisfied that the adverse effects on the claimant’s ability to carry out day-to-day activities, as identified in paragraph 12.3 above, were substantial (i.e. more than minor or trivial).

[109]Was that effect long-term? The Tribunal was satisfied that the substantial adverse effects were long-term by the point of diagnosis in June 2024. They had lasted over a year by that point.

[110]For these reasons the Tribunal concluded that the claimant was a disabled person, as a result of fibromyalgia from 26 June 2024. Direct Discrimination

[111]In relation to each remaining assertion of direct discrimination (see paragraphs 93-94 above), the Tribunal considered whether the alleged treatment occurred, whether it amounted to less favourable treatment and, if so, what the reason for that treatment was: was it because of disability? The Tribunal’s conclusions regarding each are set out below. 111.1. Failing to allow the claimant a period of time to remediate any concerns. The clamant relied upon a hypothetical, rather than an actual comparator. The Tribunal concluded that the respondent would have treated any Senior ANP (or indeed any other clinical employee) employed by the respondent in the same manner as the claimant was treated, where concerns arose regarding their clinical practice/prescribing decisions. There was no evidence before the Tribunal to suggest otherwise. A hypothetical comparator in these circumstances would accordingly have been treated in exactly the same way as the claimant was treated. Given these findings, the Tribunal concluded that the claimant did not establish that she was treated less favourably than someone would be treated by the respondent in the same, or not materially different, circumstances. As she did not establish a prima facie case, the burden of proof did not shift to the respondent. Even if the burden of proof had shifted to the respondent however, the Tribunal would have reached the conclusion that the claimant’s disabilities did not influence the respondent’s actions in any way. There was no basis upon which it could be inferred that the respondent’s treatment of the claimant was because of disability. The claimant’s treatment was because of the concerns identified (through review of records, supervision sessions and patient complaints) regarding her practice. For these reasons, the claimant’s complaint of direct discrimination in respect of this does not succeed and is dismissed. 111.2. Challenging the claimant over her use of a blue badge, including requesting copies of the blue badge. The Tribunal’s findings in relation to this are set out in paragraph 22 above. The conduct asserted occurred. The clamant relied upon a hypothetical, rather than an actual comparator. The Tribunal concluded that AM would have asked any employee why they were parking in a disabled bay, if he was not aware that they had a blue badge. Similarly, MD would ask any employee in similar circumstances for a copy of their blue badge: she gave unchallenged evidence that she had done so in respect of at least one other employee. A hypothetical comparator in these circumstances would accordingly have been treated in exactly the same way as the claimant was treated. Given these findings, the Tribunal concluded that the claimant did not establish that she was treated less favourably than someone would be treated by the respondent in the same, or not materially different, circumstances. As she did not establish a prima facie case, the burden of proof did not shift to the respondent. Even if the burden of proof had shifted to the respondent however, the Tribunal would have reached the conclusion that the claimant’s disabilities did not influence the respondent’s actions in any way. AM was motivated by a concern that disabled parking bays should not be misused. MD wanted to ensure that she was able to provide the management company with the documentation which they had previously requested in respect of others. For these reasons, the claimant’s complaint of direct discrimination in respect of this does not succeed and is dismissed. Harassment Related to Disability

[112]The Tribunal then considered each remaining allegation of harassment (see paragraphs 93-94 above), considering whether there was unwanted conduct, whether it related to disability and, if so, whether the conduct had the proscribed purpose or effect. The conclusions in relation to each are set out below. 112.1. From 17 July 2024, MD made weekly welfare calls to the claimant. The Tribunal’s findings in relation to this are set out in paragraph 25. It was established that this conduct occurred. The Tribunal accepted that this was unwanted conduct, from the claimant’s perspective. The Tribunal concluded, however, that the conduct was not related to disability: the claimant was not absent due to any of the established disabilities. As stated in paragraph 24, the claimant was absent due to stress caused by a number of factors: principally her husband’s cancer diagnosis, but also the NMC investigation and ongoing Employment Tribunal proceedings against her previous employer. There was no evidence before the Tribunal from which it could be concluded that the conduct was related to disability. Her complaint of harassment related to disability regarding this cannot therefore succeed and is dismissed. Even if the Tribunal had not reached that conclusion, it would have concluded that the conduct did not have the proscribed purpose, and it was not objectively reasonable for it to have the proscribed effect in the circumstances. MD was seeking to support the claimant. Her contacting the claimant weekly did not, objectively, meet the high test of ‘violating’ the claimant’s dignity, or the threshold of creating an intimidating etc. environment for her. 112.2. The exclusive use of room 4 was removed from the claimant on 23 September 2024 by CG. The Tribunal’s findings in relation to this are set out in paragraphs 27 & 30. It was established that this conduct occurred. The Tribunal accepted that this was unwanted conduct, from the claimant’s perspective. It was not, however, related to disability: It was related to the fact that AB was returning to the practice as a partner, and wished to return to the room he had previously worked from. There was no evidence before the Tribunal from which it could be concluded that the respondent’s decision was related to disability in any way. Her complaint of harassment related to disability regarding this cannot therefore succeed and is dismissed. Even if the Tribunal had not reached that conclusion, it would have concluded that the conduct did not have the proscribed purpose, and it did not have the proscribed effect in the circumstances, as evidenced by the claimant’s comments to OH a month after she had returned to work (see paragraph 35). Reasonable Adjustments

[113]The Tribunal concluded that the respondent had the PCPs asserted, namely a requirement to undertake a daily workload of patient appointments and a requirement to use the respondent’s laptops.

[114]The Tribunal considered whether either of these PCPs placed the claimant at a substantial disadvantage, in comparison to someone without the claimant’s disability.

[115]The Tribunal concluded that there was no evidence before the Tribunal from which it could be concluded that, as a result of any of the claimant’s established disabilities, she was placed at a substantial disadvantage by the daily workload of patient appointments. She did not specify what the asserted disadvantage was, or what disability it related to. The claimant suggested (in her claim to the Tribunal, but not at any stage prior to that) that longer consultation times and catch-up slots, limiting patient appointments those with less complex cases, and implementing support as suggested by OH, would have been reasonable adjustments. The OH report indicated that the claimant was ‘fit for full duties and hours’ and that she was ‘managing her clinics with no issue, completing her work on time, and has no issues with concentration, focus or memory.’ (See paragraph 35.) The only recommendations made were to conduct an updated DSE assessment and a stress risk assessment, both of which were done. There was no basis upon which the Tribunal could conclude that the proposed adjustments were reasonable steps which the respondent ought to have taken in the circumstances.

[116]In relation to use of the respondent’s laptops, there was no evidence that this, of itself, placed the claimant at a substantial disadvantage as a result of her disabilities. The disadvantage came from the general requirement to undertake work on any computer, as looking at a screen could lead to the onset of a migraine. If that PCP were to be considered, then it is clear that that placed the claimant at a substantial disadvantage, compared to others who did not experience migraines. The Tribunal concluded that the respondent knew that the claimant was likely to be placed at that disadvantage: she informed them of that when she commenced employment. At that time she requested, and was immediately provided with, blue screens for her monitors (see paragraph 16). Steps were accordingly taken to address/avoid the substantial disadvantage which the claimant experienced as a result of migraines. In her claim she asserts that, as a reasonable adjustment, the respondent ought to have provided her with blue screens suitable to use in each of the rooms she used following her return to work in September 2024. The respondent had however already provided blue screens suitable for use in each of the rooms she required to work from: the screens were not fixed. It was possible to move them, and the claimant did so. The Tribunal accordingly concluded that the respondent took such steps as it was reasonable to have to take, to avoid any disadvantage. It is also noted that the claimant raised no concerns regarding this in return-to-work meetings, during her OH assessment or in the DSE assessment undertaken subsequently, suggesting she did not consider that she was placed at a substantial disadvantage at the time.

[117]For these reasons, the claimant’s complaint that the respondent failed to make reasonable adjustments does not succeed and is dismissed. Constructive Unfair Dismissal

[118]In considering the claimant’s claim of constructive dismissal, the Tribunal considered the tests set out in Kaur v Leeds Teaching Hospital NHS Trust. The Tribunal’s conclusions in relation to each element are set out below.

[119]What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? The claimant indicated that it was receipt of AB’s witness statement (as set out in paragraph 46) which caused or triggered her resignation.

[120]Has he or she affirmed the contract since that act? The Tribunal noted that the claimant received that statement on 6 December 2024, and resigned on 17 December 2024. The Tribunal found that the claimant had not affirmed the contract before doing so. In the intervening period the claimant was suspended from her employment.

[121]If not, was that act (or omission) by itself a repudiatory breach of contract? The claimant did not assert that AB’s statement was not, by itself, a repudiatory breach of contract. Rather, she asserted that this was the ‘final straw’ in a course of conduct, which led her to resign. The Tribunal agreed that AB’s statement was not, by itself, a repudiatory breach of contract. As set out in paragraph 122.11 below, the Tribunal concluded that AB had reasonable and proper cause for the personal opinion which he expressed in his witness statement.

[122]If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? The Tribunal considered the conduct relied upon by the claimant in relation to her complaint of constructive unfair dismissal and reached the conclusions set out below. 122.1. Failed to implement support as suggested by the OH report. The Tribunal’s findings regarding the OH report are set out in paragraph 35. The only recommendations were that DSE and stress risk assessments should be done. Those assessments were carried out. The Tribunal did not accept that the respondent failed to implement any suggestions from the OH report. 122.2. On 19 November 2024 the respondent failed to follow the ACAS/NHS policy and failed to give the claimant the opportunity to be accompanied by a TU representative. On 19 November 2024, the claimant was invited to an investigation meeting. While workers have a statutory right to be accompanied at disciplinary hearings, that right does not extend to investigation meetings. The respondent’s disciplinary procedure did not provide a contractual right to be accompanied at investigation meetings. Accordingly, while it is correct that the respondent refused to postpone the investigation meeting, to enable the claimant to be accompanied by her trade union representative, there was no obligation on the respondent to do so. 122.3. Failed to provide the claimant with written copy of the concerns about her prior to investigation meeting. It is correct that the respondent failed to provide the claimant with any detail of the allegations against her, prior to the investigation meeting. There was however no obligation on the respondent to do so: there is no statutory requirement to do so, Acas do not recommend this, and the respondent’s disciplinary procedure did not provide for this. 122.4. On 22 November 2024 the claimant was given a suspension letter after the meeting, when she should have been given that before the investigatory meeting. While it is correct that the claimant was given her suspension letter after the investigation meeting, there is no basis for the assertion that she should have been given that letter before the investigation meeting. There is no statutory requirement to do so, Acas do not recommend this, and the respondent’s disciplinary procedure did not provide for this. 122.5. Between 3 and 14 December 2024, NM refused to provide the RCN with documents prepared for the disciplinary hearing, leading to the hearing to be postponed to 20 December 2024. It is not correct that NM refused to provide documents until 14 December 2024. While there was a ‘stalemate’ identified on 3 December 2024, as set out in paragraph 43, the claimant was provided with the invite to the disciplinary hearing, setting out the allegations, on 6 December 2024 (see paragraph 44). At that time, she was also provided with the Investigation Report, and all supporting documents. The claimant was afforded 11 days to prepare for the disciplinary hearing, as the date proposed was 17 December 2024. The respondent agreed to postpone that hearing, when the claimant requested that they do so. 122.6. AB & AM witness statements were dated before the investigation started. AB and AM’s statements were dated 18 November 2024. This was prior to the investigation meeting with the claimant, but not before the investigation started. The investigation started in week commencing 11 November 2024, when MD and the GPs involved in supervision of the claimant’s work documented their concerns, as part of the investigation. 122.7. Failed to allow the claimant time to remediate concerns about her work. The claimant was given time to address concerns about her work. Some concerns had been raised with the claimant prior to her period of absence. On her return, concerns were raised in supervision meetings, giving her the chance to address those concerns. She was then invited to a disciplinary hearing regarding concerns about her work. The outcome of that was not determined, as the claimant resigned prior to the hearing. 122.8. Failed to give the claimant adequate time to arrange representation at the initial meeting, investigation and subsequent meeting. The claimant had no entitlement to be accompanied at the meeting on 19 November 2024, informing her that she required to attend an investigation meeting, or at the investigation meeting held on 22 November 2024. Adequate time was given for the claimant to arrange representation for the scheduled disciplinary hearing. She was informed on 6 December 2024 that this was scheduled for 17 December 2024, and it was then rescheduled at her request. 122.9. Failed to advise the claimant that she was being suspended prior to investigation taking place, only advising the claimant at the end of the investigation meeting. While it is correct that the claimant was informed of her suspension after the investigation meeting, there is no basis for the assertion that she should have been informed of this prior to the investigation. There is no statutory requirement to do so, Acas do not recommend this, and the respondent’s disciplinary procedure did not provide for this. 122.10. Failed to keep the claimant updated on the progress of the investigation. The investigation meeting took place on 22 November 2024. She was advised immediately after this that there was a case to answer, and a disciplinary hearing would be convened. Correspondence then took place regarding the date of, and arrangements for, the disciplinary hearing. It has accordingly not been established that the respondent failed to keep the claimant updated on the progress of the investigation. 122.11. AB’s comments that he held no confidence in the claimant’s ability to return to an unsupervised role. This statement was contained in AB’s witness statement, which was provided to the claimant on 6 December 2024. AB had reasonable and proper cause for stating this: he set out in his witness statement 9 particular examples which led to him having concerns about the claimant’s practice; he also noted that the claimant was unreceptive to advice/recommendations from him; and he provided examples of her refusing or failing to follow his advice. Those details provided the basis for the personal opinion, which he set out in his witness statement, namely that he had no confidence in her ability to return to an unsupervised role. That statement was contained in one of the 5 witness statements which were to be considered in the context of a disciplinary hearing, at which the claimant would also be given the opportunity to provide her own response and representations. It did not demonstrate that the outcome of the disciplinary hearing was prejudged, and the claimant’s employment would be terminated, as she has asserted. It was an expression of AM’s view that he, personally, did not have confidence in the claimant’s ability to return to an unsupervised role, at that time. She had not however been working in an unsupervised role for some time: her work was supervised following her return. It was quite possible that she could return to work, and continue to be supervised, following the disciplinary hearing. 122.12. AB’s comment to the NMC that the claimant left her post to avoid supervision. This occurred on/around 30 December 2024 (see paragraph 51). That was after the claimant had resigned with immediate effect on 17 December 2024. It could not therefore form part of any course of conduct which, viewed cumulatively, amounted to a repudiatory breach of contract. 122.13. Removing the claimant’s use of room 4. It was not disputed that this was done, for the reasons stated in paragraph 27 & 30. The respondent had reasonable and proper grounds for their actions. AB was returning to the practice, as a GP partner working 5 days per week. He had previously worked out of room 4 and requested to work from that room on his return, if possible. The claimant, who worked 3 days per week, was on long-term sick leave and it was not known when (or if) she would return to the practice. Other rooms were available for her to work from, on her return. She raised no concerns regarding this when she returned. In fact, when discussing the use of different rooms issue during her OH assessment, on 14 October 2024, she stated that she was ‘aware that she requires to adapt to this due to room constraints, and is happy to do so.’ 122.14. Moving the claimant to various rooms which were not set up for the claimant. All rooms were set up for all clinicians to work from. (See paragraph 122.18 below for the Tribunal’s conclusions regarding particular adjustments for the claimant.) 122.15. Isolating the claimant from the rest of the medical clinical team. The Tribunal did not find that this was established. Evidence was not led to support this assertion. Rather, the evidence was that the claimant isolated herself from the team by choosing not to socialise with her colleagues at coffee breaks, despite this being actively encouraged by the respondent, or during lunchbreaks. 122.16. Accusing the claimant of using her blue badge inappropriately and being dishonest about it. The Tribunal’s findings regarding the extent of the discussions about the claimant’s blue badge are contained in paragraph 22. Evidence was not led to support the assertion that the claimant was accused of using her blue badge inappropriately, or that she was accused of being dishonest about it. 122.17. Accusing the claimant of insubordination and dishonesty when ordering tests which she considered appropriate. The Tribunal did not find that AB accused the claimant of insubordination, but did find that the claimant was unwilling to accept advice from him, and would not do so until she checked the advice he had given her with CG (paragraph 34). The Tribunal concluded that AB did state to the claimant, in November 2024, that it was important not to lie when ordering tests. He had reasonable and proper cause for doing so, given that the claimant had stated that the patient had abnormal liver function, when this was not the case (paragraph 37). 122.18. Failing to make adjustments to the claimant’s work due to her health. The Tribunal’s conclusions regarding the complaints of failure to make reasonable adjustments, as asserted in her claim, are set out above. These were not established. The Tribunal concluded that the respondent did not otherwise fail to make adjustments to the claimant’s work due to her health. Blue screens were provided the day after these were requested by the claimant (paragraph 16). As soon as MD found out that the claimant had fibromyalgia, she sought to undertake a risk assessment. The claimant however declined that offer (paragraph 22). No adjustments were required on the claimant’s return to work, as evidenced by the OH report (paragraph 35). MD also discussed what the claimant may require on a number of occasions: prior to her return to work (paragraph 29); on her return to work (paragraph 30); at a formal return to work interview on 24 September 2024 (paragraph 32); and following receipt of the OH Report (paragraph 36). The claimant did not indicate that any further adjustments/equipment were required. The Tribunal concluded that, had the claimant (or OH) indicated that any adjustments were required, MD would have ensured these were implemented, as she had when the claimant first mentioned blue screens may assist her.

[123]Taking into account the conclusions set out in paragraph 122 above, the Tribunal concluded that none of the asserted acts, where established, constituted a fundamental breach of contract by themselves, or when viewed together. They do not constitute, either individually or cumulatively, actions which are calculated or likely to destroy or seriously damage the mutual trust and confidence between the parties, and the respondent had reasonable and proper cause for their actions. There was accordingly no course of conduct which, viewed objectively and cumulatively, amounted to a repudiatory breach of the implied duty of trust and confidence.

[124]Did the employee resign in response (or partly in response) to that breach? Given the Tribunal’s conclusions above, this did not fall to be answered. The Tribunal concluded that there was no breach.

[125]Given these findings the Tribunal concluded that the claimant was not constructively dismissed by the respondent. Her complaint of unfair dismissal is accordingly not successful and is dismissed. Employment Judge: M Sangster Schedule to Judgment

List of Issues

[1]Disability Status 1.1. The claimant asserts that she is disabled by way of: 1.1.1. Fibromyalgia; 1.1.2. Depression; and/or 1.1.3. Migraine. 1.2. Did the claimant have a disability under s.6 Equality Act 2010 (EqA) at the time of the acts of discrimination. The Tribunal will consider the following; 1.2.1. Did the claimant have a mental or physical impairment? 1.2.2. Did it have a substantial adverse effect on her ability to carry out dayto-day activities? 1.2.3. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 1.2.4. Did the impairment have a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? 1.2.5. Did the effects last 12 months, or were they likely to last at least 12 months? 1.2.6. If not, were they likely to reoccur?

[2]Direct Discrimination (s.13 EqA) 2.1. Did the respondent do the following things: 2.1.1. Fail to allow the claimant a period of time to remediate any concerns; 2.1.2. Reported concerns to the NMC which had been previously dealt with and found to have no case to answer; and/or 2.1.3. Challenge the claimant over her use of a blue badge including requesting copies of the blue badge. 2.2. Was that less favourable treatment? 2.3. The Tribunal will decide whether the claimant was treated less favourably than someone else was treated. There must be no material difference between their circumstances and the claimant’s. 2.4 If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. 2.5. If so, was it because of the claimant’s disability? If so, which disability? 2.6. Did the respondent’s treatment amount to a detriment?

[3]Harassment (s.26 EqA) 3.1. Did the respondent do the following things: 3.1.1. From 17 July 2024 MD made weekly welfare calls to the claimant; 3.1.2. The claimant was made to contact patients to inform them of a change to their care plan after supervision meetings with a GP; 3.1.3. AB refused to hold supportive chats accusing the claimant of insubordination and lying; 3.1.4. The exclusive use of room 4 was removed from the claimant on 23 September 2024 by CG; 3.1.5. On 31 December 2024 AB reported to NMC matters which had already been dealt with by NMC; and/or 3.1.6. AB told NMC incorrectly that the claimant had resigned in order to avoid supervision, 3.2. If so, was it unwanted conduct? 3.3. Did it relate to disability? 3.4. Did the conduct have the purpose or effect of violating the claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 3.5. The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[4]Failing to make a reasonable adjustment (s.20 EqA) 4.1. Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? 4.2. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 4.2.1. Daily workload of patient appointments; and/or 4.2.2. Use of respondent’s laptops. 4.3. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant's disability? 4.4. Did the respondent know or could they reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? 4.5. What steps could the respondent reasonably have been taken to avoid the disadvantage the claimant suggests: 4.5.1. Longer consultation times and catch up slots; 4.5.2. Limiting patient appointments to those with less complex cases; 4.5.3. Provide blue screens suitable to use in each of the rooms; and/or 4.5.4. Implement support as suggested by OH report. 4.6. Did the respondent fail to take those steps?

[5]Unfair Constructive Dismissal 5.1. Did the respondent do the following things: 5.1.1. Failed to implement support as suggested by the OH report; 5.1.2. On 19 November 2024 the respondent failed to follow the ACAS/NHS policy and failed to give the claimant the opportunity to be accompanied by a TU representative; 5.1.3. Failed to provide the claimant with a written copy of the concerns about her prior to investigation meeting; 5.1.4. On 22 November 2024 the claimant was given a suspension letter after the meeting, when she should have been given it before the investigatory meeting; 5.1.5. Between 3 and 14 December 2024, NM refused to provide the RCN with documents prepared for the disciplinary hearing, leading to the hearing to be postponed to 20 December 2024; 5.1.6. AB & AM witness statements were dated before the investigation started; 5.1.7. Failed to allow the claimant time to remediate concerns about her work; 5.1.8. Failed to give the claimant adequate time to arrange representation at the initial meeting, investigation and subsequent meetings; 5.1.9. Failed to advise the claimant that she was being suspended prior to investigation taking place, only advising the claimant at the end of the investigation meeting; 5.1.10. Failed to keep the claimant updated on the progress of the investigation; 5.1.11. AB’s comments that he held no confidence in the claimant’s ability to return to an unsupervised role; 5.1.12. AB’s comment to the NMC that the claimant left her post to avoid supervision; 5.1.13. Removing the claimant’s use of room 4; 5.1.14. Moving the claimant to various rooms which were not set up for the claimant; 5.1.15. Isolating the claimant from the rest of the medical clinical team; 5.1.16. Accusing the claimant of using her blue badge inappropriately and being dishonest about it; 5.1.17. Accusing the claimant of insubordination and dishonesty when ordering tests which she considered appropriate; and/or 5.1.18. Failing to make adjustments to the claimant’s work due to her health. 5.2. Did that breach the implied term of trust and confidence? 5.3. The Tribunal will need to decide: 5.3.1. Whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and 5.3.2. Whether it had reasonable and proper cause for doing so. 5.4. Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end. 5.5. Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation. 5.6. Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

[6]Remedy 6.1. What is the appropriate remedy for discrimination? 6.2. What financial losses has the discrimination caused the claimant? 6.3. Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 6.4. If not, for what period of loss should the claimant be compensated? 6.5. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 6.6. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? 6.7. Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 6.8. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 6.9. Did the respondent or the claimant unreasonably fail to comply with it? 6.10. If so, is it just and equitable to increase or decrease any award payable to the claimant? 6.11. By what proportion, up to 25%? 6.12. Should interest be awarded? How much? 6.13. What is the appropriate remedy for unfair dismissal? 6.14. If there is a compensatory award, how much should it be? The Tribunal will decide: 6.14.1. What financial losses has the dismissal caused the claimant? 6.14.2. Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 6.14.3. If not, for what period of loss should the claimant be compensated? 6.14.4. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 6.14.5. If so, should the claimant’s compensation be reduced? By how much? 6.14.6. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 6.14.7. Did the respondent or the claimant unreasonably fail to comply with it? 6.14.8. If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? 6.14.9. If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct? 6.14.10.If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? 6.14.11. Does the statutory cap of fifty-two weeks’ pay or £86,444 apply? 6.15. What basic award is payable to the claimant, if any? 6.16. Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?