Ms D McBride v The State Hospitals Board for Scotland: 8001772/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001772/2025Venue GlasgowHearing 9 to 12 March 2026
Between
Ms D McBrideClaimantThe State Hospitals Board for ScotlandRespondent
Before
Employment Judge NeilsonDate 23 April 2026
JUDGMENT
The judgment of the Employment Tribunal is that the claimant’s claims of direct discrimination, harassment and victimisation under the Equality Act 2010 are not made out and are dismissed.
REASONS
[1]The claimant lodged a claim in the Employment Tribunal on 20 July 2025 claiming discrimination under the Equality Act 2010 (“EA”).[2]The claimant attended the hearing in person and represented herself. The respondent was represented by Mr Wells, Solicitor.[3]There was a Joint Bundle of 592 pages.[4]The claimant gave evidence. For the respondent Ms Alexandra McLean, Senior Charge Nurse (“AM”), Ms Jacqueline Garrity, Skye Centre Manager (“JG”), Mr Craig Smith, Senior Charge Nurse (“CS”) and Mr Stewart Dick, Risk Management Team Leader (“SD”) gave evidence.[5]The background to the claim is that the claimant alleged that she had been subject to direct discrimination, harassment and victimisation because of her protected characteristics of perceived disability and age. The perceived disability was hearing loss.
Issues
[6]The issues are as follows:-a. whether there is direct discrimination of the claimant under section 13 EA because of a protected characteristic of perceived disability or a protected characteristic of age;b. whether there was harassment of the claimant under section 26 EA related to perceived disability or age;c. whether there was victimisation of the claimant under section 27 EA.d. Whether any of the claims were time barred.[7]The specific issues in dispute (including the alleged less favourable treatment/unwanted conduct/detriments) were clarified at the preliminary hearing before Judge Sutherland on 27 February 2026. The parties agreed that the issues were those set out in the note of that preliminary hearing and that for present purposes it was helpful to deal with the issues as set out in chronological fashion in that note. I set out below an abstract from that note that details the chronological list of issues. I will refer to these issues using the roman numerals as set out below. “The type of complaint asserted is noted in brackets (D = direct discrimination; H = harassment; PA = protected act; V = victimisation). i. Did Alex Maclean ask the claimant to go for a hearing test in June 2023 whilst being absent from work? (H) ii. In September 2023 were staff informed by the Skye Centre Manager that there needed to be a certain number of staff in the PLC at all times, due to the claimant’s age related hearing loss? (H) iii. On 10 November 2023 did Alex Maclean analyse the claimant’s audiograms and provide her personal opinion to Occupational Health that the results showed “further deterioration” which was not accurate? (D) iv. Did Alex Maclean tell the claimant in November 2023 that an occupational health referral had been made and to ask the practitioner whether it was suitable for her to obtain a doctor’s appointment to request an ENT referral? (D, H) v. Was the claimant removed from her department without guidance from HR or Occupational Health in January 2024? (D, H) vi. In January 2024, were staff told that the claimant had to be escorted if she was walking in the hospital grounds due to her age-related hearing loss? (H) vii. Did the claimant’s line manager tell her in May 2024 “If you don’t want to wear hearing aids, maybe you want to consider if this is the type of environment that you want to continue working in”? (H) viii. Did Alex Maclean say to the claimant on 23 July 2024 that “If you do not want to wear hearing aids you will be unable to work in a clinical environment” without viewing the claimant’s recent audiology results? (D, H) ix. Did Jacqueline Garrity say to the claimant in September 2024 “You have been diagnosed as being profoundly deaf” without having seen the claimant’s audiology results? (H) x. Did Jacqueline Garrity tell the claimant in September 2024 that if she chose not to wear hearing aids she could be redeployed for 3 months but that if that did not work out then “we would need to go down the capability route” without viewing the claimant’s audiology results? (D, H) xi. Did Alex Maclean interrogate the claimant in October 2024 on the claimant’s return to work wearing hearing aids in a derogatory manner about what she had been doing for a 15 minute period? (H) xii. Did the claimant do a protected act by submitting a grievance on 25 November 2024? (PA) xiii. Did Jacqueline Garrity state in an Occupational Health referral on [date tbc] that if the claimant “was placed on the redeployment register, this would be continually reviewed over a 12 week timescale, with her capacity to continue to be employed in the organisation also taken into consideration” without viewing the claimant’s audiology results? (D) xiv. Did the claimant do a protected act by Dr A Leckie recommending a functional risk assessment on 9 April 2025? (PA) xv. Did Alex Maclean deny knowledge of the claimant’s return to work on 22 April 2025 having been told of the date on 3 occasions? (D, H, V) xvi. Was the claimant given contradictory information by Jacqueline Garrity and/or Alex Maclean in April/May 2025 regarding whether the claimant’s line manager had been informed of the date of the claimant’s return to work? (D, H, V) xvii. Upon her return to work on 22 April 2025, did the claimant have no inclination as to where she should go, whether there were any alternative duties or if there was a phased return? (D, H, V) xviii. Did Jacqueline Garrity and/or Alex Maclean provide conflicting and opposing information as to their annual leave dates in April 2025? (D, H, V) xix. Was the claimant informed in April 2025 by the Skye Centre manager that she had notified the senior charge nurse of the date of the claimant’s return, when the senior charge nurse had previously denied all knowledge of the claimant’s return? (D, H, V) xx. Did Craig Smith question the claimant on 29 April 2025 as to why she was in the Sky Centre and tell her to leave, when that instruction had been given to the charge nurse by the Sky Centre Manager? (D, H, V) xxi. Following the above on 29 April 2025, did Alex Maclean advise the claimant that ‘They were probably talking about work’ and that ‘Jacqueline thinks it’s best if you don’t come to the Skye Centre at all until your risk assessment is complete’? (D, H, V) xxii. Did Jacqueline Garrity tell the claimant in May 2025 that the respondent could not provide evidence of when the claimant’s line manager was told of the claimant’s date of return to work as it was a verbal conversation? (D, V) xxiii. Was Alex Maclean responsible for making reference to a phased return period in May 2025 which was in fact related to a report from occupational health 4 months previously? (D, V) xxiv. Did the Risk Assessment, suggested by Dr. Alistair Leckie, not take place until the claimant’s 3rd week of return? (D, V) xxv. Did Jacqueline Garrity and Alex Maclean fail to implement the alternative duties in accordance with organisational guidelines in April 2025 result in the claimant spending 4 weeks in an isolated office with no work? (D, V) xxvi. Did the claimant do a protected act by raising an employment tribunal claim on 20 July 2025? (PA) xxvii. In October 2025, did the Skye Centre manager inform the claimant that she would be required to undertake a functional risk assessment in relation to her hearing levels, every six months for the rest of her working life at The State Hospital and that the claimant had agreed to this? (D, H)”
The Law
[8]Section 4 EA provides that disability and age are each a protected characteristic.[9]Section 13 EA provides that:-. “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.”[10]Section 26 provides 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. (2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). (3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and(c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are ….age; disability….”[11]Section 27 EA provides that :- “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”[12]A claim for direct discrimination based upon perceived disability rather than actual disability is competent – Chief Constable of Norfolk -v- Coffey 2019 EWCA Civ 1061. This may also include claims for harassment and victimisation. In accordance with Coffey to establish perceived disability discrimination the putative discriminator must believe that all the elements in the statutory definition of disability were present. The elements necessary to establish disability under the EA are(1) does the person have a physical or mental impairment?(2) Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?(3) Is that effect substantial?(4) Is that effect long-term?[13]Paragraph 8 of Schedule 1 EA provides:- “(1) This paragraph applies to a person (P) if –(a) P has a progressive condition,(b) as a result of that condition P has an impairment which has (or had) an effect on P’s ability to carry out normal day-to-day activities, but(c) the effect is not or was not a substantial adverse effect. (2) P is to be taken to have an impairment which has a substantial adverse effect if the condition is likely to result in P having such an impairment.”[14]An employer's concern about the ability of a disabled claimant to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability - LJ Underhill at [72] in Coffey.[15]In relation to the burden of proof as this is a claim based on discrimination under EA the burden of proof is initially on the claimant – who must establish a prima facie case of discrimination. The burden of proof then passes to the respondent to show that discrimination is not the reason if there is a prima facie case – Section 136 EA and Royal Mail Group Limited -v- Efobi 2021 UKSC 33.
Findings of Fact
[16]The claimant commenced employment with the respondent on 15 September 2015 and was employed as an Education & Learning Officer.[17]The claimant worked in the Patient Learning Centre (“PLC”) in the Skye Centre sitting within the respondent’s facility at Carstairs. Her line manager was AM in the period from June 2023 through to November 2025. Thereafter her line manager was CS. CC stood in as the claimant’s line manager when AM was absent on ill health grounds in the period.[18]The claimant’s role within the PLC is to offer educational learning experiences to patients, with a particular focus on accredited Scottish qualifications (SQA) Core Skills outcomes.[19]The respondent is an NHS Health Board constituted pursuant to the National Health Service (Scotland) Act 1978. The respondent is a psychiatric hospital located in South Lanarkshire, Scotland (“the State Hospital”). It provides care and treatment in conditions of high security for patients from Scotland and Northern Ireland.[20]JG was at all material times the Skye Centre Manager.[21]The claimant was on secondment from 31 October 2022 but returned to her substantive role on 1 March 2023.[22]In or about June 2023 the claimant and the respondent agreed that the claimant would work 4 days a week in her substantive role. This took effect from 2 October 2023. This was not related to any issues regarding the claimant’s hearing loss.[23]The claimant had a hearing test carried out at Specsavers on 9 March 2021. Specsavers provided a written Audiological Evaluation. This shows that the claimant has some hearing loss at higher frequencies. At the four highest tested frequencies the range of loss in the left ear is Moderate to Severe and in the right ear is in the range from Severe to Profound (“the 2021 Audiological Evaluation”).[24]There is a risk of violence and aggression working in patient areas at the State Hospital. Patient behaviour can at times be unpredictable and staff members working in the area could be subject to a violent attack. Staff members are required to be vigilant at all times, this means listening for audible cues such as raised voices, sudden loud noises (furniture moving, items thrown etc) whispering or colluding between patients which could be a precursor to a violent attack or dangerous situation. It is important to be aware of these potential queues at all times to allow staff to intervene before the issue escalates or to respond to the incident as soon as possible.[25]The Skye Centre houses a number of areas that present specific hazards due to the tools and equipment available to staff and patients that could potentially be used as weapons. Patients use various tools in crafts and gardens such as shovels, brushes, scissors and rakes. Patients have access to sports equipment such as weights, footballs, rackets and ropes. The Skye Centre also houses the Health Centre which contains clinical equipment such as dental equipment, syringes, medication and other sharp objects.[26]Compromised hearing could effect a staff member's ability to understand instruction or pertinent information. This is particularly important at morning briefs where relevant patient information is shared among staff to help plan the day safely. Staff should also be able to communicate with patients effectively to understand their needs and identify any issues. Staff should also be able to hear the fire alarm to ensure the fire evacuation procedure can be completed safely and effectively.[27]The claimant was absent from work from 12 June 2023 through to 12 September 2023. She was exhibiting high blood pressure at this time. She was absent with stress due to ongoing issues within the PLC. These issues were not related to the claimant’s hearing loss. In particular, the claimant had disagreements with other staff within the PLC with regard to the way the PLC operated.[28]AM was told by staff in the PLC around early June 2023, that the claimant may have difficulty with her hearing and that this may be contributing to the stress she was suffering from. AM was told that the claimant was not hearing conversations or mis-hearing conversations.[29]Because of the nature of the high security of the facility within which the PLC sits it is important for staff operating within the PLC to have both visual and acoustic awareness of what is happening around them with regard to the patients.[30]For occupational health support the respondent used NHS Dumfries and Galloway Occupational Health Service (“OH”).[31]Around the time that the claimant went off in June 2023 AM and the claimant had a conversation. AM raised with the claimant that she, AM, had been told by staff in the PLC that the claimant may be suffering from hearing loss. The claimant told AM that she had had a hearing test in 2021 and that she did have some hearing loss. The claimant discussed the results of that test with AM. The conversation was an amiable one. They discussed the respondent referring the claimant to OH. The claimant agreed that the referral could include her hearing loss and she did not mind going for a hearing test.[32]On 20 June 2023 AM completed an occupational health referral form in respect of the claimant and submitted it to OH. In that form AM stated:- “In addition it had been observed by staff working with Donna that she appeared to have issues with her hearing and this may be contributing to her stress. I asked her about this when talking about this referral, and she let me know that her hearing in one ear is severely affected, and just above profoundly deaf. I explained to her that we should have been made aware of this so that a risk assessment could be put in place, and we spoke about the potential risks of serious hearing loss in this environment. She acknowledges that she finds is particularly challenging in a group environment. I have not explored with Donna if this is contributing to her stress at work but it is possible that the impact of her hearing loss is a contributing factor in relation to meetings, picking up all aspects of conversations etc., I have asked her to have her hearing tested, as her last test was around 2 years ago.”[33]In the referral to OH on 20 June 2023 AM asked two questions. The first question related to what measures or adjustments might be made to support the claimant’s return to work having regard to disagreements over the running of the PLC. The second question was “What is the extent of Donna's hearing loss, and are there measures that could be put in place to ensure her safety and that of the team?”[34]Around the end of June 2025 the claimant’s union representative told her not to go for a hearing test.[35]Leanne Keenan, a specialist practitioner in occupational health, from OH had a telephone call with the claimant on 14 July 2023. Leanne Keenan completed the OH referral form. In answer to the second question she stated “Donna has refused a hearing test whilst absent from work; She describes this as following advice from her union representative. However I have discussed with her the potential links between hearing loss and anxiety, and she has agreed to inform OH of when she returns to work so a hearing test can be rescheduled.”[36]On 3 July 2023 the claimant had a hearing test carried out at Specsavers. Specsavers provided a written Audiological Evaluation. This shows that the claimant has some hearing loss at higher frequencies. At the four highest tested frequencies the range of loss in the left ear is Moderate to Severe and in the right ear is in the range from Severe to Profound (“the 2023 Audiological Evaluation”).[37]The claimant returned to work on 12 September 2023.[38]The claimant provided copies of the 2021 Audiological Evaluation and the 2023 Audiological Evaluation to AM on or about 12 September 2023.[39]On 29 September 2023 AM sent an e-mail to the claimant as follows:- “Dear Donna, can you arrange to have a hearing test carried out at OH please? Once you have the results we can organise to catch up and put a risk assessment in place if required.”[40]On or about 5 October 2023 the claimant contacted OH to ask for a hearing test. OH contacted AM and JG and asked for a formal referral.[41]On or about 10 November 2023 the respondent put in place an interim measure with regard to the claimant that there would at all times be two members of staff with the claimant in the PLC and the claimant was not to escort patients on her own. These measures were put in place having regard to the safety of the claimant and the respondent’s perception at that time regarding the claimants hearing.[42]AM submitted a further request to OH for an occupational health report on 10 November 2023. In that request AM provided written background in which she stated “Donna spoke to me regarding the results of a hearing test completed a couple of years ago, which demonstrated significant hearing loss. She recently had a test that she organised herself, and this shows further deterioration. I can ask for her permission to forward these results to you, if this would be helpful. Her hearing in both ears is affected.”[43]In that request to OH AM asked two questions. Firstly – “Are there further assessments that could be carried out, or would you wish to carry out your own hearing test?”. Secondly – “What is the extent of Donnas hearing loss, and would hearing aids be beneficial?”[44]The claimant met with OH – Leanne Keenan, in person on 8 December 2023. On 11 December 2023 Leanne Keenan sent the written OH report to the claimant and AM. To the first question she answered “Mrs Hefti [claimant] has proactively accessed private hearing tests and has shared the results today. I have advised her to discuss these with her GP.” To the second question she answered “Following consultations with her GP, Mrs Hefti [claimant] will likely be referred to Audiology for further assessment and the offer of hearing aids if appropriate.” In the section of the OH report dealing with fitness to work Leanne Keenan wrote “Mrs Hefti [claimant] has discussed that following a risk assessment at work, she has been restricted from some aspects of her role, such as escorting patients, due to concerns regarding safety in relation to her hearing loss. If she is prescribed and is compliant with hearing aids, this risk assessment could be reviewed, and she should resume fitness for all aspects of her role.”[45]On 19 December 2023 the claimant notified AM that she had been referred to ENT by her doctor.[46]On or about 7 January 2024 JG and AM discussed whether it was appropriate for the claimant to remain in her existing role pending the referral to ENT and the assessment of whether hearing aids were required. They agreed that it was not appropriate, on safety grounds, for the claimant to remain in her current role in the interim. This was in line with a similar approach that the respondent took with clinical staff who were being assessed for hearing aids. In those situations the staff had been removed from front line duties until they were assessed for hearing aids.[47]On 11 January 2024 AM notified the claimant that she could no longer work in the Skye Building until she had the ENT appointment. The claimant was moved to a separate building - the Harris building, to undertake alternative duties. The claimant could not carry out patient facing work in the Harris building. The claimant could continue to carry out work on the development of learning courses. The Harris building is where HR and the IT teams are based. The claimant would be isolated from her usual colleagues.[48]On 15 January 2024 the claimant sent a light-hearted e-mail to AM confirming her arrival in her “new perch” in the Harris Building.[49]On 17 January 2024 Jacqueline Green from the respondents HR team emailed JG and AM and stated:- “Hi Both, Can we please have a catch up regarding Donna Hefti. I met her in the kitchen today and she has advised that she will be based in the learning centre for the next few months. We do have a Process in place if moving someone is being considered as a reasonable adjustment so I would like to chat this through. Also I would not class the learning centre as an appropriate base for someone to work in long term. Looking at the OH report this was not a recommendation that was made, I haven't seen the risk assessment yet though. I appreciate I have only heard one side of the story however we'd like to understand why this decision was made. Thanks, Jackie.”[50]On 19th January 2024 AM created a risk assessment form in respect of the claimant (“January 2024 Risk Assessment”). This identified the risks associated with the claimant’s hearing loss and the control measures already in place from November 2023. In relation to further Action/Control it stipulated:- “To reduce the residual risks Donna has been relocated away from direct clinical contact. She has been advised not to walk in the grounds during grounds access times, and not to come up to the Skye Centre when patients are due in the building. This will be in place until Donna attends her audiology appointment and the possibility of hearing aids is explored.”[51]The January 2024 Risk Assessment was made available to other members of staff including CS.[52]On 22 May 2024 the claimant attended a hospital appointment at Monklands Hospital with an audiologist. This was in response to the request from the respondent that the claimant have an ENT referral. The claimant notified AM by e-mail that the hearing test was about the same as the two previous tests and she had been referred for an MRI scan as there was an imbalance in the hearing between both ears. The claimant was told she could be provided with hearing aids.[53]On 22 May 2024 the claimant and AM exchanged e-mails regarding the position relating to hearing aids. The claimant told AM that she had been told it was a personal choice but her preference was not to have them but if that caused an issue she would wear them. On 23 May 2024 AM and the claimant spoke on a call and AM made it clear that if the claimant was required to wear hearing aids then she would need to wear them.[54]Following the call with AM on 23 May 2024 the claimant made an appointment with the Audiology department at Monklands Hospital to be fitted for hearing aids.[55]On 22 July 2024 the claimant e-mailed AM to update her on her appointment for her hearing aids. In that e-mail she stated: “I have been feeling very uncertain and apprehensive about this whole situation and as you know I tried (unsuccessfully) to get advice from HR a number of weeks ago after my ENT appointment. As I have stated previously, it wouldn't be my choice to wear hearing aids but I wouldn't refuse to wear them if it was absolutely necessary, which you say it is. Last week I contacted a union representative for advice who stated that the only person in an organisation who can make the decision as to whether someone wears hearing aids or not is occupational health. Can you therefore refer me to occupational health please?”[56]On 19 July 2024 AM made a written referral to OH in relation to the claimant. AM sought advise on when it would be appropriate for the claimant to return to the PLC once hearing aids were fitted; whether the return should be phased and whether there were any other adjustments that could be made to assist the claimant in this process.[57]AM responded by e-mail on 23 July 2024:- “You have shown me your audiology reports, which illustrate the deterioration in your hearing, and the fact that you qualify for hearing aids is clear evidence that there is hearing impairment. The risk assessment that was completed for the PLC still stands, which makes reference to the risk to you, your colleagues and other patients due to the hearing loss. If you make the decision not to have hearing aids, then you unfortunately will not be able to work in a clinical area. Occupational health cannot make a decision regarding whether or not you wear hearing aids, they can advise you and advise managers but ultimately the decision will rest with you. The audiologist is the professional who can assess and determine if they are required, and this has happened with the outcome being that you qualify for them. I have referred you to Occupational Health, however the focus of the referral is around when you can return to start the adjustment process, and what additional support can we provide as you adjust to wearing hearing aids. Can I emphasise again that the decision-making rests with you, but we are hopeful that you will agree to wear them so that you can return to your role in the PLC.”[58]Leanne Keenan from OH had a telephone call with the claimant on 6 August 2024 and sent a written response to the questions asked to both AM and the claimant on 7 August 2024. Leanne Keenan recommended a phased return with phased use of hearing aids. She also recommended a noise risk assessment which could be carried out with the support of the respondent’s Health & Safety Adviser.[59]On 12 August 2024, AM sent an e-mail to the claimant setting out a phased return to work plan. She also stated in that e-mail:- “I spoke to the health and safety advisor this morning - apologies, I forgot to mention this when we spoke - in relation to a noise risk assessment as this is referenced in the OH report. He does not believe this is a health and safety issue, but rather is about situational awareness, courtesy, etc as the main issue is staff working in the same area speaking more quietly. I let him know that I would be speaking to the staff about this, and their need to help you by being aware of where they are working, and how loudly they are speaking.”[60]The claimant was prescribed hearing aids and wore them upon her return to work in the Skye Building on 10 September 2024.[61]The claimant met with JG on 16 September 2024. They discussed the requirement that the claimant wear hearing aids and what would happen if the claimant refused to wear hearing aids. JG agreed to take advice from the HR team. Thereafter JG had a further meeting with the claimant and told the claimant that it remained a requirement that she wear the hearing aids and that if she refused to wear them she would not be able to continue in her substantive role and would be placed on the redeployment register.[62]On 26 September 2024 AM created a new written risk assessment in respect of the claimant (“the September 2024 Risk Assessment”). This identified that the claimant was now wearing hearing aids and was able to escort patients and carry out her substantive role.[63]On 2 October 2024 AM met with claimant in the Skye Building at about 4.45 p.m. and asked her if she had been working. AM believed, having been informed by another member of staff (Stewart Shields), that the claimant had been talking and had not done some allocated preparatory work. This upset the claimant who left shortly thereafter.[64]The claimant went off with work related stress and anxiety on October 2, 2024 and returned to work on April 22, 2025.[65]On 11 November 2024 JG submitted a written request for a further OH report in respect of the claimant. In that written request JG stated:- “Donna has continued to express concern regarding the requirement for her to wear hearing aids whilst at work and disputes the need for her to wear these. She has described the challenges she has in adjusting to wearing her hearing aids and considers that she is being discriminated against by being asked to wear them. It is evident that this is causing her upset and distress however the rationale for this requirement has been explained to her on several occasions. It has been explained to Donna that in order to safely carry out her role as Learning Coordinator within the Patient Learning Centre it is necessary that the control measures identified require to be adhered to. She has been informed by her Line Manager and Skye Centre Manager that if she chooses to not wear her hearing aids she will not be able to continue in her substantive role due to the associated risks and this would in effect mean that she will be placed on the Redeployment Register. In order to be open and transparent regarding this process she has been advised that this would entail her being matched to an appropriate non clinical post. She has been advised that within the current financial situation there are no Band 5 posts vacancies at present and these may not become available in the near future. She was advised by her line manager and staff side representative that in line with the policy if she was placed on the Redeployment Register this would be continually reviewed over a 12 week timescale, with her capability to continue to be employed in the organisation also taken into consideration. Donna has expressed that her current situation is causing her a great deal of stress and she does not consider that she's any options available to her.”[66]In the written request for a further OH report JG asked OH three questions. Firstly, when will the claimant be fit to resume back to her role within the PLC? Secondly, should this return be phased? Thirdly, are there further adjustments, in addition to those already in place, that the respondent can make to assist the claimant in this process?[67]On 18 November 2024 the claimant had an absence review meeting with JG. The claimant was accompanied by her trade union representative, Colin Cruikshank. The letter of 22 November 2024 from JG to the claimant is an accurate summary of what occurred at that meeting. At the meeting the claimant alleged that JG had referred to her previously as having profound hearing loss. The claimant refuted this and produced her audiology assessment results and a written definition of profound hearing loss. JG made it clear that the September 2024 Risk Assessment would remain in place and the claimant would be required to continue to wear hearing aids. The claimant confirmed she found the whole situation stressful.[68]On 25 November 2024 the claimant raised a formal grievance with the respondent in relation to her treatment by the respondent over her hearing loss and the requirement to wear hearing aids.[69]An OH telephone meeting was held with Leane Keenan and the claimant on 10 December 2024. In response to the three questions asked by the respondent Leanne Keenan in the written OH report of 10th December 2024 stated that she could not estimate a return date as the barrier to return was about workplace concerns rather than a medical condition. That a phased return over two weeks may assist the claimant and that in relation to further adjustments sharing the risk assessments with the claimant may assist and that “It would also be a value to review these, with the support of the Health and Safety Advisor on her return.”[70]A grievance meeting was held with the claimant on 11 December 2024. The meeting was conducted by Josie Clark, Associate Director of Nursing. The recommendations from that meeting included mediation and Josie Clark submitting an OH referral and discuss the claimant’s consent to a detailed OH report and liaison with the claimant’s GP and audiology specialist. Subsequently Josie Clark proposed instead a Case Review Meeting with Gareth Grindlay, HR, Leanne Keenan, OH and David Jardine, Health and Safety Adviser on 15 January 2025.[71]The claimant attended a case review meeting on 15 January 2025 with Josie Clark, Leanne Keenan, Gareth Grindlay and David Jardine. It was agreed that the claimant would consent for Leanne Keenan to obtain a report from the claimant’s audiologist and that thereafter David Jardine would work with the claimant and her line manager to compile a risk assessment. The claimant was told at this meeting that if she chose not to wear hearing aids, which she was entitled to do, and the advice received from occupational health and health and safety deem that her workplace be unsuitable without these the respondent would need to consider other reasonable adjustments, such as redeployment. The claimant advised that she did want to return to work but was not prepared to be moved somewhere where she would be isolated from her regular work colleagues.[72]A mediation involving the claimant, JG and AM took place on 23 January 2025. It was facilitated by Dr Joe Judge. It was not successful.[73]On 5 March 2025 AM passed on to the claimant a message of thanks that a patient gave to the claimant.[74]Leanne Keenan arranged an in-house hearing test for the claimant to take place on 11 March 2025. The claimant refused to attend that appointment and notified Leanne Keenan of that on 11 March 2025. The claimant did not consider that a further test was necessary.[75]A further meeting with regard to the grievance lodged by the claimant took place on 12 March 2025. In attendance were the claimant, Josie Clark and Gareth Grindlay. At that meeting Josie Clark advised the claimant that they could look to temporarily redeploy the claimant until such time as the risk assessment had been completed and advised the claimant of the opportunity to work with Linda Robertson, Workforce Advisor, and Alison Buchanan, Business Support Manager, on eRostering activities.[76]On 19 March 2025 the claimant formally applied in writing to move to stage one of the formal grievance process. In her letter of 19 March 2025 to Josie Clarke the claimant specifically raised the issue that:- “The concerns within the Patient Learning Centre are the source of this whole situation…”… When I had my supported conversation with J Garrity and Alex McLean in January I again raised the issue that the concerns that are causing me stress and high blood pressure have never been addressed and are simply ignored and that the whole focus is always on my hearing. No one since June 2023 has asked me what my work related stress relates to. The whole focus has been on my hearing which is not the reason that I was off work.”…[77]On 26 March 2025 Leanne Keenan sent a Case Management Review Report concerning the claimant to AM. In that report Leanne Keenan recommended that the claimant meet with NHS Dumfries and Galloway Occupational Health Consultant, Dr Leckie, for evaluation of the audiology reports the claimant presented at case review and for his opinion on her fitness to work in the Skye Centre environment. An appointment was scheduled for 9 April 2025.[78]A referral was made to Dr Alastair Leckie on 26 March 2025.[79]The claimant’s fit note was due to expire on 21 April 2025.[80]The claimant spoke with AM on 4 April 2025. She notified AM that she had an appointment with Dr Leckie on 9 April 2025. The claimant notified AM that she planned to return to work on 22 April 2025.[81]The claimant met with Dr Leckie on 9 April 2025 for an occupational health assessment to look at the claimant’s hearing in the context of her ability to safely and effectively undertake her duties.[82]The claimant contacted JG by telephone on 9 April 2025. She notified JG that she intended to return to work on 22 April 2025. She asked JG to tell AM of her intention to return to work.[83]By letter of 10 April 2025 addressed to AM Dr Leckie recommended a functional risk assessment of the claimant in the workplace to establish whether her hearing impairment causes significant impact on her ability to maintain her own and others safety and to effectively discharge the duties of her post. He further stated that “The provision of hearing aids may not be that effective in a situation where there is significant background noise.” He concluded that “The outcome of this risk assessment will determine whether she can safely and effectively deliver her workplace responsibilities”.[84]The claimant returned to work on 22 April 2025. AM was unaware of her return on that day.[85]AM met with the claimant on 22 April 2025. They discussed what duties the claimant might carry out whilst the outcome from the functional risk assessment was awaited. The claimant was not keen to undertake any alternative duties. It was agreed that the claimant would carry out work for Linda Robertson and be based in the Harris building pending the functional risk assessment. AM also agreed that the claimant could undertake some work during this period in relation to an open learning accountancy course. The claimant subsequently met with Linda Robertson.[86]Gareth Grindlay from HR spoke to the claimant on 22 April 2025 and proposed a two week phased return to work. The claimant e-mailed AM on 23 April 2025 and raised concerns about a two week phased return. AM replied to the claimant by e-mail on 23 April 2025 and proposed a phased return to work over a 4 week period. The claimant did return to work on the basis of the proposed 4 week phased return.[87]On 29 April 2025 the claimant went up to the Skye Centre just after 8.30 a.m. The claimant went into the Skye Centre to talk to one of her colleagues. CS spoke to the claimant and asked her what she was doing there. CS asked the claimant to leave as he considered this to be in accordance with the January 2024 Risk Assessment. The claimant was upset, embarrassed and humiliated by this.[88]By e-mail of 30 April 2025 AM offered to the claimant the opportunity to come up to the Skye Centre at lunchtime when there is no patient movement.[89]A functional risk assessment was caried out on 12 May 2025. In attendance were the claimant, CS and David Jardine, Health and Safety Advisor for the respondent. The assessment consisted of a check on the ability of the claimant to hear the Fire Alarm, a responder pager and the tannoy. The claimant was then asked a series of questions regarding her hearing in various situations and locations where she may be required to work. The functional risk assessment was carried out following consultation with the claimant, AM and SD.[90]There was a delay in carrying out the functional risk assessment due to the fact that the functional risk assessment was a bespoke assessment put in place for the claimant; there was a need for consultation with various parties; David Jardine (who was involved with the process) only worked 2 days a week and the claimant was on a phased return.[91]Following the carrying out of the functional risk assessment on 12 May 2025 the respondent prepared a new written risk assessment in respect of the claimant. A copy of this new risk assessment was provided to the claimant on 15 May 2025 (“the May 2025 Risk Assessment”).[92]The May 2025 Risk Assessment identified 6 areas for Further Action/Control. These were(1) a potential requirement for the claimant to be accompanied when working in the Gardens area;(2) a potential requirement for the claimant to be accompanied when working in the Sports area;(3) ensure claimant liaises with Nurse in Charge should they feel unsafe or uncomfortable during the working day;(4) ensure the Staff member has a point of contact should hearing deteriorate further or change in some way:(5) review risk assessment and questionnaire should be completed every three months for the first six months then six monthly thereafter;(6) With claimant’s permission circulate information contained within the risk assessment and questionnaire with charge nurses and any other relevant staff. Subject to these points the claimant was free to return to her duties.[93]On 18/19 May 2025 the claimant resumed her duties in the Skye Centre without hearing aids in accordance with the terms of the May 2025 Risk[94]Throughout the process of dealing with the claimant with regard to her hearing loss AM discussed with JG the steps that she was taking.[95]AM was absent from work on sick leave from May to September 2025.[96]The claimant’s stage one grievance hearing took place on 26 May 2025. The grievance was not upheld and the claimant appealed that decision.[97]In preparation for the appeal hearing (stage two) the claimant issued written questions to AM. AM responded to those written questions.[98]The stage two grievance hearing took place on 3 February 2026. AM was present at that hearing to answer questions from the claimant.[99]The claimant has been off work since 17 December 2025.[100]The claimant’s grievance process concluded on 3 February 2026 with a stage two hearing. The claimant’s grievance was not upheld.[101]The claimant has suffered from the following over the last three years – high blood pressure (in respect of which she takes medication), difficulty sleeping; a loss of interest in socializing; she thinks about her work situation constantly and ruminates on it and has feelings of isolation. Discussion & Decision Evaluation of witnesses[102]On the whole I found all of the witnesses to be credible. Insofar as there were differences in the accounts of the various witnesses this was in my view largely down to the passage of time since the events in question. I do accept that the claimant has a level of antagonism towards the respondent based upon her perception of what has occurred and this may have coloured her recollection in certain respects.[103]In relation to both AM and JG the claimant has submitted that they were motivated by a desire to remove her from the organisation. I do not accept that. There is no evidence to support that position. The claimant herself accepted that she had an amiable relationship with AM. I accept that both JG and AM were acting in good faith in applying what they considered to be the best way to deal with the issue of the hearing loss having regard to the health and safety of both the claimant and the patients and other members of staff. Time Bar[104]This was listed as an issue to determine at the hearing although ultimately I was not addressed on this point in submissions by either party. However, I am bound to consider it and will return to this point if relevant. Perceived Disability[105]On the issue of disability this is a case where the claimant insists she does not have a disability under the terms of the EA. Rather her case is that she was discriminated against by the respondent on the grounds that they perceived her to have a disability. The first issue to determine then is whether the respondent did perceive the claimant as having a disability. Mr Wells submitted that the respondent did not accept that it perceived the claimant to have a disability. The claimant in her submissions made reference to Chief Constable of Norfolk -v- Coffey 2019 EWCA Civ 1061. In that case the Court of Appeal clearly set out that in relation to “perceived” disability it was necessary to establish that the putative discriminator must believe that all the elements in the statutory definition of disability were present.[106]In looking at the statutory definition there was no dispute that the claimant was subject to some degree of hearing loss. All parties were agreed on that – the issue was really the degree of that hearing loss and the appropriate way to manage that in the workplace. Accordingly, I am satisfied that there was at all material times from June 2023 (and likely earlier) a physical impairment and the respondent certainly perceived there to be such a physical impairment as AM was clear in her instruction to OH on 20 June 2023 that the claimant had told her “that her hearing in one ear is severely affected, and just above profoundly deaf”. Certainly, by September of that year AM had had sight of the 2021 Audiological Evaluation and 2023 Audiological Evaluation and took steps to put in place an interim risk assessment – so clearly perceived there to be a physical impairment.[107]Did it have an adverse effect on her ability to carry out day to day duties? The respondent would appear to have understood the position by November 2023 to be that the claimant was sufficiently impaired that she could not be allowed to be alone with patients. In Coffey the Court of Appeal accepted that day to day activities might encompass the daily activities of a police constable. Similarly, here the day to day activities of the claimant would involve listening to others, conversing on the telephone; responding to verbal instructions etc. In my opinion it is clear that AM considers that by the time she has seen the 2021 Audiological Evaluation and the 2023 Audiological Evaluation there is likely to be an impact on her ability to carry out her role and thus on her ability to carry out day to day activities.[108]Is that effect substantial? When considering this I have also taken into consideration Paragraph 8 of Schedule 1 EA – dealing with progressive conditions. It may well be the case that as at September 2023 the effect was not substantial. However, I think it clear that the respondent perceived there to be some effect. The respondent certainly perceives there to be a deterioration between 2021 and 2023 and it seems to me to be likely that the respondent considers this to be a progressive condition. In the OH referral of November 2023 AM specifically refers to a deterioration. Having regard to Paragraph 8 of Schedule 1 EA I am satisfied that the test here is met.[109]By September 2023 it was clear to the respondent that the hearing impairment was something that certainly had been present since the 2021 Audiological Evaluation – so longer than 12 months.[110]I am satisfied that as at September 2023 the respondent, acting through AM, did perceive the claimant to have a disability that qualified as a disability within the terms of the EA. Age[111]The claimant also submitted that the discrimination against her arose through age. Initially she sought to argue that it was both perceived disability discrimination and age discrimination. I pointed out that it was not possible to have combined protected characteristics. The claimant then confirmed that she wanted to argue age discrimination in the alternative.[112]There was no evidence put forward by the claimant to support a claim of age discrimination. For the reasons I set out below I am satisfied that the various acts and omissions referenced by the claimant were done, where relevant, either because of perceived disability (direct discrimination) or related to perceived disability (harassment). I accordingly dismiss the claimant’s discrimination claims insofar as they are based on a protected characteristic of age. Direct Discrimination and Coffey[113]The claimant bases her claim upon the authority of the Coffey case. The circumstances between her case and the facts in Coffey do have some similarity. Both deal with a perceived disability of hearing loss. In Coffey a police constable serving with Wiltshire Constabulary applied to transfer to Norfolk Constabulary. She was rejected by Norfolk Constabulary on the grounds of perceived hearing loss. That was found to be a perceived disability. The Court of Appeal accepted that where the decision in question is influenced by stereotypical assumptions of what are perceived to be the person’s actual or future hearing loss then that can amount to a section 13 EA direct discrimination claim. However, LJ Underhill stated at [74]:- “I would emphasise that it does not follow that a claim of direct discrimination can be brought in the generality of cases where an employee suffers a detriment because they are (or are perceived to be) unable to do the work required by the employer, or do it to a sufficient standard, as a result of disability: on the contrary, such cases will typically have to be brought under section 15 (if available), and the employer will have the opportunity to seek to justify the treatment complained of.”[114]There was also some discussion in the Coffey case of what the position would be if the decision arose through a genuine mistake rather than being based on a stereotypical assumption. At [71] LJ Underhill references the submissions made by counsel for Ms Coffey:- “He acknowledged that in the typical case where a person is refused a job – or indeed is dismissed or suffers any other detriment – because they are unable to meet a performance standard in consequence of a disability, they will have no claim of direct discrimination and will have to claim under section 15; and in answer to a question from Davis LJ he acknowledged also that that would be the case if they were not in fact disabled but were perceived to be as a result of a "genuine mistake". But he submitted that in some cases there will be the additional element which he said was evidently present in this case, where the misperception was not simply a mistake but flowed (in significant part) from a stereotypical assumption about the effects of disability.”[115]In my opinion, following from the decision of the Court of Appeal in Coffey, it is only in the narrow case of “stereotypical assumption” that a direct discrimination claim can be made for perceived disability in circumstances where the claim may be more properly positioned as a section 15 EA discrimination arising from disability claim. This is relevant here because it strikes me that had this case been dealing with actual disability then it is likely we would have been dealing with a section 15 EA claim – discrimination arising from disability – which would have afforded the respondent the opportunity to justify their actions. There is of course no justification defence available with a section 13 EA direct discrimination claim.[116]Accordingly, in considering the claimant’s claims for direct discrimination it is important to establish whether the decision maker or makers were at the relevant time influenced by stereotypical assumptions regarding hearing loss. A genuine mistake by the decision makers will most likely not give good grounds for a direct discrimination claim. The claimant in her submissions submitted that the real reason was in fact malicious intent to cause her harm and force her to leave the organisation. It will be necessary for me to consider the motivating factor behind the decisions that were made primarily by AM and JG in respect of each of the claims made.[117]It is worth noting that in Coffey the factors that persuaded the Court of Appeal that the decision maker had made a stereotypical assumption regarding hearing loss were that the decision maker disregarded specific guidance on the importance of individualised assessment; disregarded the advice of an adviser that there be an at work test carried out and there was no valid reason for thinking that someone who was carrying out the same role at Wiltshire Constabulary could not carry out that role at Norfolk Constabulary.[118]Against that background I will consider each of the issues in turn. (i) Did Alex Maclean ask the claimant to go for a hearing test in June 2023 whilst being absent from work? (H)[119]It is not disputed that AM did ask the claimant to go for a hearing test whilst the claimant was off work. This took place during the discussion in June 2023. The claimant insisted this occurred on a call on 16 June 2025 whereas AM thought it occurred face to face whilst they were still at work. I do not think it matters materially where and when the discussion took place. The key issues discussed were not really disputed. The claimant alleges that this amounted to harassment. I am satisfied that AM did not intend for it to violate the claimant’s dignity or for it to create an intimidating, hostile, degrading, humiliating or offensive environment. Nor do I consider, having regard to section 26(4) of the EA that making this request could have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The claimant in her evidence explained that she had laughed when asked about her hearing difficulty. Both AM and the claimant described an amiable conversation. AM had grounds to believe there was a potential issue with the claimant’s hearing and she was seeking the advice of OH on this issue. In any event I do not consider that at this point in time the respondent did perceive the claimant to have a disability. It was only by about September 2023 that I consider that the claimant did perceive the claimant to have a disability that would be covered by the EA. For harassment the conduct must be related to perceived disability. As at June 2023 that could not be the case.[120]I dismiss the harassment claim in respect of this issue. (ii) In September 2023 were staff informed by the Skye Centre Manager that there needed to be a certain number of staff in the PLC at all times, due to the claimant’s age related hearing loss? (H)[121]It is not disputed by the respondent that there was an interim risk assessment put in place after the claimant returned to work in September 2023 to the effect that the claimant had to be accompanied by another two members of staff in the PLC and that she could not escort patients on their own. This is clearly set out in the e-mail of 10 November 2023 from AM to the claimant. The claimant stated this took effect in September upon her return to work. AM could not recall exactly when it took effect. In the e-mail of 29 September 2023 AM asks the claimant to arrange a hearing test and then states “Once you have the results we can organise to catch up and put a risk assessment in place if required”. That would suggest a risk assessment was not already in place at that time. I think it more likely that these new arrangements took effect shortly before 10 November 2023.[122]Did this amount to harassment? I am satisfied that AM did not intend for it to violate the claimant’s dignity or for it to create an intimidating, hostile, degrading, humiliating or offensive environment. The claimant has stated that it is her view that the actions of AM and JG were throughout motivated by malicious intent. She stated in summing up her case that there was a deliberate plan to cause her harm and to force her out of the organisation. She described this as her core belief. However, there was no evidence to substantiate this. She accepted that she had an amiable relationship with AM. The evidence clearly points to both AM and JG seeking to deal with a difficult situation where they perceived that the claimant had a disability in relation to her hearing. They considered that to be a potentially serious issue. That does not by itself mean that there is no harassment. That only deals with harassment through “purpose”. Harassment can also arise through “effect”. I must accordingly consider (in accordance with section 26(4) EA) - the perception of the claimant, the other circumstances of the case; and whether it is reasonable for the conduct to have that effect.[123]I accept that the perception of the claimant was that this new imposition of being accompanied by two others was upsetting to her. I can accept that she found that to be degrading or humiliating. She was being treated differently from others. However, by this stage there were two written reports from Specsavers. Both showed hearing loss at higher frequencies – particularly in the right ear – at or about the Profound level. There was feedback from colleagues that the claimant may have issues with her hearing in the work environment. The claimant herself accepted she had an issue with her hearing. The respondents were putting in place interim measures designed to assist the claimant to remain at work whilst they awaited further test results and input from OH. Considering the circumstances and having regard to whether it is reasonable for the respondent’s conduct to be seen as harassment I am not satisfied that harassment has been established.[124]I dismiss the harassment claim in respect of this issue. (iii) On 10 November 2023 did Alex Maclean analyse the claimant’s audiograms and provide her personal opinion to Occupational Health that the results showed “further deterioration” which was not accurate? (D)[125]In the written referral to OH dated 1 November 2023 AM states “Donna spoke to me regarding the results of a hearing test completed a couple of years ago, which demonstrated significant hearing loss. She recently had a test that she organised herself, and this shows further deterioration. I can ask for her permission to forward these results to you, if this would be helpful. Her hearing in both ears is affected.” I do consider that AM has provided an opinion based upon her analysis of the 2021 Test and the 2023 Test. It is a matter of debate as to whether this is accurate or not. It does appear based upon an examination of the two results that there is a slight deterioration in hearing in the right ear in the 2023 Audiological Evaluation compared to the results in the 2021 Audiological Evaluation – although it is difficult to be accurate based upon the copies in the Bundle. The issue is whether this amounts to discrimination because it is less favourable treatment because of the perceived disability? I do not consider that there is any less favourable treatment here. AM is providing this opinion in circumstances where I accept it is her honest belief that the claimant has an issue with her hearing. She is seeking advice from OH. By itself I do not see how this amounts to less favourable treatment.[126]As this does not amount to less favourable treatment in any event it is not necessary to go on to consider whether in line with Coffey a direct discrimination claim can arise here. However, as I set out below I do not consider that a direct discrimination claim does arise here in any event – since I do not consider that the actions of AM at this stage are significantly influenced by a stereotypical assumption about the effects of the perceived disability. Her actions are based upon the information that she had in front of her at that time.[127]I dismiss the discrimination claim in respect of this issue. (iv) Did Alex Maclean tell the claimant in November 2023 that an occupational health referral had been made and to ask the practitioner whether it was suitable for her to obtain a doctor’s appointment to request an ENT referral? (D, H)[128]It is accepted by the respondent that AM did tell that claimant that an OH referral had been made. There is some uncertainty as to exactly who asked the claimant to ask her doctor about getting an ENT appointment – but I am satisfied that effectively the respondent made that request.[129]The claimant alleges that this is both discrimination and harassment.[130]Dealing with discrimination. Was it less favourable treatment because of the perceived disability? The claimant did not give any direct evidence as to why she considered this less favourable treatment. I have no doubt that this occurs because of the perceived disability. At its core it has two points. Making an OH appointment in respect of an employee and asking an employee to arrange for their GP to make a referral to a specialist. I do not consider either of these steps to be less favourable treatment. These are steps being taken to support the claimant to allow her potentially to stay at work. In any event I do not consider that a direct discrimination claim does arise here– since I do not consider that the actions of AM at this stage are significantly influenced by a stereotypical assumption about the effects of the perceived disability. Her actions are based upon the information that she had in front of her at that time.[131]In relation to harassment. I have for the reasons set out above found that AM did not intend to violate the claimant’s dignity or for her actions to create an intimidating, hostile, degrading, humiliating or offensive environment. The issue is whether her actions nevertheless had that effect taking into consideration section 26(4) EA. The claimant did not give any specific evidence regarding the impact of this decision upon her. In taking into account the circumstances and whether it is reasonable for this conduct to have that effect I do not consider that simply telling the claimant about an OH referral and seeking permission through her doctor for an ENT referral amounts to harassment.[132]I dismiss the discrimination and harassment claims in respect of this issue. (v) Was the claimant removed from her department without guidance from HR or Occupational Health in January 2024? (D, H)[133]I have taken this as being essentially about the removal of the claimant from her department in January 2024. It is not disputed that this occurred. Nor is it disputed that this was done without any input, in advance from HR. OH had been involved and had provided reports in July and December 2023 but it is not disputed that they were not directly involved in the decision to remove the claimant from the department. HR did raise a concern after the event – as can be seen from the e-mail from Jacqueline Green on 17 January 2024. However, HR did not seek to change the decision thereafter. The decision to remove the claimant from the department was made by AM and JG. AM in her evidence explained that the ultimate decision was made by JG whereas JG positioned it more as a joint decision. I do not think that matters since it was clearly a decision by both AM and JG and thus by the respondent.[134]The claimant alleges that this was both direct discrimination and harassment.[135]In relation to direct discrimination. This was a material decision by the respondent as the effect of this decision was to effectively redeploy the claimant from her patient facing role in the PLC to a non-patient facing role in the Harris Building with limited contact with her colleagues and a change in what she would do on a day to day basis. I am satisfied that this did amount to less favourable treatment than would have been accorded to someone in respect of whom they did not perceive a disability (as they would have remained in the PLC).[136]The key issue is whether this was done, per Coffey, on the basis of a stereotypical assumption that AM and JG held regarding hearing loss? The challenge for the respondent in this case is that essentially both AM and JG take a position at a fairly early stage that there is a hearing loss issue and that ultimately the only solution is to remove the claimant from the working environment until she is assessed for hearing aids and if hearing aids are required then they must be worn. That is a position which following the Dr Leckie assessment and the work of David Jardine and CS is shown not to be correct. In fact, the claimant can continue in her role without hearing aids. It was put to both AM and JG whether in light of the report from Dr Leckie they would do anything differently at the outset. AM stated that at the time when the decisions were made she was following both OH advice and their standard approach to this type of issue – which was to remove the individual until an assessment for hearing aids has been carried out. She said that it was hard to see what they could have done differently. She also described the Dr Leckie report as taking everyone by surprise and something that had not been done before. JG in response to that question said that she thought it would have been better to engage Dr Leckie earlier in the process. I must bear in mind that we need to deal with the facts on the ground as they were in December/January 2023/24. At that point in time AM and JG had before them the 2021 Audiological Evaluation, the 2023 Audiological Evaluation; the claimant’s colleagues who reported potential issues with hearing such as not hearing comments or mishearing what was said; the claimant’s own acknowledgement that she had some deterioration in her hearing, particularly in her right ear. They also had two OH reports – the response from OH of 14 July 2023 and the response from OH of 11 December 2023.[137]The OH response of 14 July 2023 does not provide any useful information. It simply narrates that there is a need for a hearing test. There is then an attempt to try and get a further hearing test (although the claimant has by this stage provided the 2023 Audiological Evaluation). This culminates in the referral to OH of 10 November 2023. Leanne Keenan then has a meeting with the claimant on 8 December 2023. In response to the question from AM - “Are there further assessments that could be carried out, or would you wish to carry out your own hearing test? The answer from OH is – “Mrs Hefti [claimant] has proactively accessed private hearing tests and has shared the results today. I have advised her to discuss these with her GP”. In response to the question - “What is the extent of Donnas hearing loss, and would hearing aids be beneficial?” the response from OH is “Following consultations with her GP, Mrs Hefti [claimant] will likely be referred to Audiology for further assessment and the offer of hearing aids if appropriate.” There was then an additional comment from OH “If she is prescribed and is compliant with hearing aids, this risk assessment could be reviewed, and she should resume fitness for all aspects of her role.” There was no further actual information on the claimant’s hearing.[138]AM claims she was following the advice from OH. It would be fair to say that at this point there has been a failure to actually get to the bottom of the extent of the hearing loss that the claimant is suffering from. No proper assessment of the claimant’s hearing has been carried out by the respondent or by OH. It is not clear, based upon the information, that hearing aids are required or will be offered. All that OH say is that the claimant “will likely be referred to Audiology for further assessment and the offer of hearing aids if appropriate”. However, I also have to have regard to the fact that the respondents need to take into consideration the health and safety risks of the claimant working within a high security environment. In making this decision have AM and JG made a stereotypical assumption about the claimant’s hearing loss or are they proceeding upon the imperfect information that they have? I bear in mind that in Coffey the decision maker proceeded against both written policy advice, actual advice and without any good reason why the individual could work for Wiltshire in the role but not Norfolk. In contrast in this case I do not consider that the evidence here is at the level that would suggest that the reason that AM and JG reach the decision they do is because of a stereotypical assumption. They proceed based upon the somewhat imperfect information they have. However, that information does disclose hearing loss and that there is a process underway to at least consider whether hearing aids may be an option. In hindsight it is a mistake to exclude the claimant but both JG and AM were operating, in my view in good faith, based upon the information they had. I accordingly do not consider that there is any evidence of a stereotypical assumption being made by AM or JG here. On that basis I do not consider that there is any direct discrimination.[139]On the issue of harassment for the reasons narrated earlier I do not consider that the conduct of AM and JG in excluding the claimant from the PLC was done for the purpose of violating the claimant’s dignity or for their actions to create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. They were both acting in good faith having regard to the health and safety of both the claimant and her colleagues and patients. In relation to the effect this decision had there was no direct evidence from the claimant with regard to this decision and her relocation to the Harris Building creating a violation of her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The evidence would suggest that whilst not happy with the decision she was willing to carry on from the Harris Building – see the e-mail of 15 January 2024. In any event taking into consideration all the circumstances and whether it would be reasonable to see the respondent’s actions as harassment, I do not consider that it would. Accordingly, I do not consider that a harassment claim has been established in relation to this issue.[140]I dismiss the discrimination and harassment claims in respect of this issue. (vi) In January 2024, were staff told that the claimant had to be escorted if she was walking in the hospital grounds due to her age-related hearing loss? (H)[141]It is accepted by the respondent that the January 2024 Risk Assessment does specifically state under Control Measures “Ensuring that Donna is not left as one of two staff in the area, with a third staff allocated to mitigate some of the risks. Donna does not escort patients on her own”. Further under “Further Action/Control” it is stated “She has been advised not to walk in the grounds during grounds access times, and not to come up to the Skye Centre when patients are due in the building.”[142]I accept that staff, particularly CS, were made aware of the January 2024 Risk[143]The claimant alleges that this is harassment. For the reasons previously set out I do not consider that in putting in place these restrictions AM or JG acted with purpose to create an intimidating, hostile, degrading, humiliating or offensive environment. They took these steps in light of the risk factors that they perceived applied – and as set out in the January 2024 Risk Assessment.[144]In terms of effect I consider the perception of the claimant – and accept that the measures put in place by the respondent were perceived by her as being humiliating and degrading for her. However, having regard to the other circumstances and whether it was reasonable for the conduct to have that effect I consider that in circumstances where the respondents are acting in good faith to deal with a health and safety risk it is not reasonable to see these actions as harassment.[145]I dismiss the harassment claim in respect of this issue. (vii) Did the claimant’s line manager tell her in May 2024 “If you don’t want to wear hearing aids, maybe you want to consider if this is the type of environment that you want to continue working in”? (H)[146]I am not satisfied that this was said at this time. There certainly was a discussion on the call on 23 May 2024 where AM effectively said that if hearing aids were prescribed then the claimant would need to wear them. However, the allegation made by the claimant here is effectively covered at (viii) below. I deal with it there. (viii) Did Alex Maclean say to the claimant on 23 July 2024 that “If you do not want to wear hearing aids you will be unable to work in a clinical environment” without viewing the claimant’s recent audiology results? (D, H)[147]This is clearly set out in the e-mail of 23 July 2024. There were no recent audiology results to view at this time. The claimant had met with the audiologist back in May 2024 at Monklands Hospital. There is no written report from that meeting. My understanding of that meeting is that the claimant was given the option of wearing hearing aids. AM has interpreted that as the claimant being prescribed hearing aids and in accordance with her understanding of the OH report from December 2023 has taken the position that to allow the claimant to come back she requires to wear the hearing aids. Under cross examination AM stated that it was her assumption that if hearing aids were offered to the claimant then they were required. If the claimant will not wear the hearing aids then she cannot continue in her role. AM perceives this to be consistent with the position from OH.[148]Insofar as this is a direct discrimination claim the impact of the position being adopted by the claimant is that the claimant cannot return to her role unless she wears hearing aids. That is less favourable treatment in comparison with someone whom the respondent would not perceive to have a disability of hearing loss. However, is that position based upon a stereotypical assumption regarding hearing loss? I do not consider that it is. It is based upon the OH report from December 2023 along with the information AM has regarding the hearing loss and the fact that AM understands the claimant to have been prescribed hearing aids. Accordingly, I do not consider that a direct discrimination claim arises here.[149]With regard to the harassment claim arising out of these facts I accept that, in isolation, a requirement to wear hearing aids or face not being able to return to her substantive role was perceived by the claimant as creating an intimidating environment. I am satisfied that in acting as she does AM does not have the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment. With regard to effect and bearing in mind the overall circumstances and reasonableness – that AM is proceeding based upon her understanding of the OH advice and her understanding that the claimant has been prescribed hearing aids I do not consider that this amounts to harassment.[150]I dismiss the claims for direct discrimination and harassment in respect of this issue. (ix) Did Jacqueline Garrity say to the claimant in September 2024 “You have been diagnosed as being profoundly deaf” without having seen the claimant’s audiology results? (H)[151]This was denied by JG. I found her to be a credible witness. There certainly were discussions on 16 September 2024 between the claimant and JG. I think it unlikely that JG would have said this since it is clear that the claimant is not profoundly deaf. She has a loss of hearing at certain frequency ranges. It may be that JG made some reference to the 2021 Audiological Evaluation or the 2023 Audiological Evaluation or the information from those reports which shows that at certain frequencies her scores for her right ear are in the range from Severe to Profound. I think it more likely that this is where the reference to profound comes from. I appreciate that the claimant references this comment again when she meets with JG on 18 November 2024 and in the letter of 22 November 2024 JG sets out what her understanding of the position is. JG does not at any point maintain that the claimant was profoundly deaf.[152]I dismiss the allegation of harassment in relation to this issue. (x) Did Jacqueline Garrity tell the claimant in September 2024 that if she chose not to wear hearing aids she could be redeployed for 3 months but that if that did not work out then “we would need to go down the capability route” without viewing the claimant’s audiology results? (D, H)[153]I consider it likely that JG did say something along these lines to the claimant when they met in September 2024. The consistent position of both AM and JG around this time was that if the claimant did not wear hearing aids then she could not come back to her substantive role. In the written referral to OH on 11 November 2024 JG sets out what the claimant has been told and there JG makes specific reference to redeployment and 12 weeks (3 months) and capability. I accept that what the claimant was told was what was set out in that referral to OH.[154]Did this amount to direct discrimination and/or harassment? In essence this is the same point on direct discrimination as addressed on issue (viii). The claimant is being told that if she does not wear hearing aids she cannot come back to her substantive role with the possibility of redeployment into another role or potentially if there are no vacancies a termination of her employment.[155]On direct discrimination we come back to whether this is being done based upon a stereotypical assumption by JG. JG is proceeding based upon the same information that AM had before her. For the same reasons as set out above in relation to AM I do not consider that JG is proceeding on the basis of a stereotypical assumption. She is proceeding based on the information that the respondent has regarding hearing loss, the fact that hearing aids have been offered to the claimant and the OH report specifically refers to her returning to work if she is compliant with wearing hearing aids. Accordingly, I do not consider that there is a direct discrimination claim arising here.[156]On the issue of harassment. I accept that being told that your job is at risk if you do not wear hearing aids was something that the claimant found created an intimidating environment. I do not consider that JG was acting with purpose to create such an environment. With regard to effect and bearing in mind the overall circumstances – that JG is proceeding based upon her understanding of the OH advice and her understanding that the claimant has been prescribed hearing aids I do not consider that this amounts to harassment.[157]I dismiss the direct discrimination and harassment claims in relation to this issue. (xi) Did Alex Maclean interrogate the claimant in October 2024 on the claimant’s return to work wearing hearing aids in a derogatory manner about what she had been doing for a 15 minute period? (H)[158]There was an incident on 2 October 2024 when AM spoke to the claimant at the end of the day to ask her if she had been working. AM accepted that she had been checking up on the claimant as she had grounds to believe that the claimant had been chatting and not getting on with her duties. There was disagreement between the claimant and AM as to the manner in which this approach was made by AM. However, what was clear was that this incident was not related to any issue of the hearing loss so even if this interaction was done by AM in a derogatory manner it was not conduct related to a protected characteristic.[159]I dismiss the harassment claim in relation to this issue. (xii) Did the claimant do a protected act by submitting a grievance on 25 November 2024? (PA)[160]The respondent accepts that submitting the grievance on 25 November 2024 is a protected act. I agree that this is a protected act. (xiii) Did Jacqueline Garrity state in an Occupational Health referral on [date tbc] that if the claimant “was placed on the redeployment register, this would be continually reviewed over a 12 weeks timescale, with her capacity to continue to be employed in the organisation also taken into consideration” without viewing the claimant’s audiology results? (D)[161]It is accepted that this was clearly set out in the OH referral of 11 November 2024. However, for the reasons already provided in relation to issue (x) there is no direct discrimination claim.[162]I dismiss the direct discrimination claim in relation to this issue. (xiv) Did the claimant do a protected act by Dr A Leckie recommending a functional risk assessment on 9 April 2025? (PA)[163]To be a protected act under section 27 EA there is a requirement that the claimant must do something as set out in section 27(2). Dr Leckie recommending a functional risk assessment cannot be a protected act because it is not something that the claimant does. Accordingly, this is not a protected act. (xv) Did Alex Maclean deny knowledge of the claimant’s return to work on 22 April 2025 having been told of the date on 3 occasions? (D, H, V)[164]This item plus items (xvi), (xvii), (xviii) and (xix) all relate to the circumstances surrounding the claimant’s return to work on 22 April 2025. I will deal with all of them here.[165]The facts as I have found them to be in relation to the claimant’s return to work on 22 April are that the claimant did notify AM on 4 April 2025 that she intended to return to work on 22 April 2025. AM asked the claimant to contact JG after the occupational health assessment with Dr Leckie on 9 April 2025. The claimant did contact JG on 9 April 2025 and asked her to tell AM that it was her intention to return to work on 22 April 2025. What is then unclear is whether JG ever told AM that the claimant would be returning on 22 April 2025. JG in her evidence said that she did tell AM about this when AM returned from holiday. AM in her evidence stated that JG did not tell her. Both AM and JG were on holiday at different stages between 4 April 2025 and 22 April 2025. Based on the oral evidence I am not satisfied that AM was told by JG that the claimant was returning on 22 April 2025. JG may have thought she had told her but may not have done so. AM was someone who tended to do things “by the book”. If she had been told I would expect she would have prepared for the claimant’s return. The fact there was no preparation suggests to me that she was not told. It is certainly clear that the claimant turning up for work on 22 April 2025 was a surprise to AM. She had not expected it. Mr Wells submitted that this was no more than a breakdown in communication. I agree that is clearly the most likely explanation. As I have previously explained I do not consider that there was any malicious intent in the way in which both JG and AM dealt with the claimant. There would be no benefit to either JG or AM to deliberately conceal the claimant’s return. I am satisfied that this was simply a breakdown in communication and nothing more.[166]The claimant alleges that this incident gives rise to claims for direct discrimination, harassment and victimisation. She also alleges the same claims in respect of the related issues (xvi), (xvii), (xviii), (xix) and (xxii) below. However, they essentially cover the same points.[167]On direct discrimination the claim must be that there is less favourable treatment because of her perceived disability. The less favourable treatment must be that the claimant returned with no plan in place as regards her work or where she should go. However, I am satisfied that this was not because of her perceived disability but was because of the breakdown in communication.[168]On harassment I do not accept that the failure to plan for the claimant’s return was related to her perceived disability. It was related to the breakdown in communication.[169]In relation to victimisation the detriment must be the claimant returned with no plan in place as regards her work or where she should go. However, this was not done because the claimant did a protected act or because the respondent believed that the claimant had done or may do a protected act. It was done because there was a breakdown in communication.[170]Accordingly, I dismiss all the claims in relation to issues (xv), (xvi), (xvii), (xviii) and (xix). (xvi) Was the claimant given contradictory information by Jacqueline Garrity and/or Alex Maclean in April/May 2025 regarding whether the claimant’s line manager had been informed of the date of the claimant’s return to work? (D, H, V)[171]As above. I accept that there was contradictory information given but this was purely because of a breakdown in communication.[172]I dismiss the claims in respect of this issue. (xvii) Upon her return to work on 22 April 2025, did the claimant have no inclination as to where she should go, whether there were any alternative duties or if there was a phased return? (D, H, V)[173]As above. It is correct that on return the claimant had no inclination as to where she should go, whether there were any alternative duties or if there was a phased return. However, these matters were sorted quite shortly after her return on 22 April 2025 and only arose through a breakdown in communication.[174]I dismiss the claims in respect of this issue. (xviii) Did Jacqueline Garrity and/or Alex Maclean provide conflicting and opposing information as to their annual leave dates in April 2025? (D, H, V)[175]As above. Yes their accounts are conflicting but this was due to a breakdown in communication.[176]I dismiss the claims in respect of this issue. (xix) Was the claimant informed in April 2025 by the Skye Centre manager that she had notified the senior charge nurse of the date of the claimant’s return, when the senior charge nurse had previously denied all knowledge of the claimant’s return? (D, H, V)[177]As above. I accept that there was conflicting evidence from JG and AM but accept this was due to a breakdown in communication.[178]I dismiss the claims in respect of this issue. (xx) Did Craig Smith question the claimant on 29 April 2025 as to why she was in the Sky Centre and tell her to leave, when that instruction had been given to the charge nurse by the Sky Centre Manager? (D, H, V)[179]It is correct that CS did question the claimant on 29 April 2025 as to why she was in the Skye Centre and did ask her to leave. However, that instruction was not given to CS by the Skye Centre Manager. CS based his actions upon the information contained within the January 2024 Risk Assessment. That Risk Assessment does specifically state under “Further Action/Control” – “She has been advised not to walk in the grounds during grounds access times, and not to come up to the Skye Centre when patients are due in the building." I am satisfied that CS was proceeding on the basis of the January 2024 Risk[180]The claimant put to CS that she was entitled to be in the Skye Centre when patients were not there. CS took the position that it was getting close to 9 a.m. when patients would arrive so she had to leave.[181]The claimant claims that this issue amounts to direct discrimination, harassment and victimisation.[182]In relation to direct discrimination the less favourable treatment is being asked to leave the Skye Centre. However, that arises not because of the perceived disability but it is because of the Risk Assessment. A direct discrimination claim cannot succeed on that basis.[183]In relation to harassment the unwanted conduct must be related to perceived disability. I can accept that the exclusion of the claimant from the Skye Centre is “related” to her perceived disability as it stems from the Risk Assessment which is put in place because of the perceived disability. However, in acting as he did CS was not acting with purpose to violate the claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment. I consider the effect that the conduct had upon the claimant. I take into consideration her perception that she was upset, embarrassed and humiliated. However in considering the other circumstances and whether it is reasonable for the conduct to have that effect I take into consideration that by this stage there has been a Risk Assessment in place since January 2024, that CS is acting in good faith in accordance with the terms of that Risk Assessment, that there were grounds for putting the Risk Assessment in place in the first instance and I find that there was no harassment through effect in this instance.[184]In relation to victimisation the claimant must be subjected to a detriment because the claimant did a protected act or because the respondent believed that the claimant had done or may do a protected act. Here any detriment was done because of the January 2024 Risk Assessment.[185]I dismiss the claims in respect of this issue. (xxi) Following the above on 29 April 2025, did Alex Maclean advise the claimant that ‘They were probably talking about work’ and that ‘Jacqueline thinks it’s best if you don’t come to the Skye Centre at all until your risk assessment is complete’? (D, H, V)[186]I do not consider that a conversation in these terms took place. It is contradictory to the e-mail that AM sends to the claimant on 30 April 2025 where she specifically states that the claimant is welcome to come up at lunchtime when there is no patient movement.[187]I dismiss the claims in respect of this issue. (xxii) Did Jacqueline Garrity tell the claimant in May 2025 that the respondent could not provide evidence of when the claimant’s line manager was told of the claimant’s date of return to work as it was a verbal conversation? (D, V)[188]This also relates to the issues around return to work on the 22 April 2025. It is correct that JG did tell the claimant that this was a verbal conversation. Simply based upon the issue as set out here it is difficult to see any less favourable treatment or detriment but in any event for the reasons set out above I am satisfied that this was done because of a breakdown in communication and there is no valid claim for direct discrimination or victimisation here.[189]I dismiss the claims in respect of this issue. (xxiii) Was Alex Maclean responsible for making reference to a phased return period in May 2025 which was in fact related to a report from occupational health 4 months previously? (D, V)[190]There was no evidence on this provided directly by the claimant and it was not put to AM in cross examination. In his submissions Mr Wells denied this had occurred. As there was no evidence in relation to it I dismiss the direct discrimination and victimisation claims based upon this issue. (xxiv) Did the Risk Assessment, suggested by Dr. Alistair Leckie, not take place until the claimant’s 3rd week of return? (D, V)[191]It is correct that the functional risk assessment recommended by Dr Leckie did not take place until 12 May 2025. The suggestion here is that the delay was less favourable treatment and/or it was a detriment.[192]In giving his evidence SD explained why there was a delay in carrying out the assessment. He explained that this was down to a number of reasons. These were that the functional risk assessment was bespoke to the claimant so some thought had to go into it. There was a need to consult with a range of parties including the claimant and AM. His colleague David Jardine was primarily responsible but he only worked two days a week. The claimant herself was on a return to work so her availability was more limited. I am satisfied that the reason for the slight delay (and I should add that in the context of the case three weeks is not that much of a delay) was down to these factors.[193]In circumstances where the claimant was keen to return to her role in the PLC I can understand that a delay of 3 weeks could be seen as less favourable treatment and/or a detriment. However, the reason for the delay was not because of the claimant’s perceived disability. There is no direct discrimination claim in this regard. The reason was down to the factors referenced by SD.[194]In relation to the victimisation claim there is no evidence to suggest that the delay was because the claimant did a protected act or because the respondent believed that the claimant had done or may do a protected act. Again, the reason was the factors set out by SD.[195]I accordingly dismiss the claims in respect of this issue. (xxv) Did Jacqueline Garrity and Alex Maclean fail to implement the alternative duties in accordance with organisational guidelines in April 2025 result in the claimant spending 4 weeks in an isolated office with no work? (D, V)[196]The evidence indicates that following the return to work on 22 April 2025 the claimant was assigned to work with Linda Robertson in the Harris building. From the evidence it is likely that the claimant had some work but I can accept that she was not carrying out her role at this point in time and it may be the work she had was not what she would have wanted. There is no evidence that the claimant was in “isolation”. She was working in another building.[197]The claimant claims direct discrimination in relation to this issue. Even if it were the case that the location or lack of work were less favourable treatment this does not arise because of perceived disability. If there was a failure to put in place work for her return this arose through the breakdown in communication about the claimant’s return. There is no direct discrimination claim here.[198]In relation to victimisation even if it did amount to detriment – it has not been done because the claimant did a protected act or because the respondent believed that the claimant had done or may do a protected act. There is no evidence to support that.[199]I dismiss the claims in respect of this issue. (xxvi) Did the claimant do a protected act by raising an employment tribunal claim on 20 July 2025? (PA)[200]It is accepted by the respondent that this is a protected act. (xxvii) In October 2025, did the Skye Centre manager inform the claimant that she would be required to undertake a functional risk assessment in relation to her hearing levels, every six months for the rest of her working life at The State Hospital and that the claimant had agreed to this? (D, H)”[201]In the course of the hearing the claimant confirmed that she was not proceeding with this allegation. This issue was withdrawn by the claimant and I accordingly dismiss the claims in respect of this issue. Time Bar[202]As I have dismissed all of the claimant’s claims it is not necessary for me to determine time bar. ACAS Uplift[203]The claimant submitted that there should be an uplift to any award due to the failure by the respondent to follow the ACAS Code. When asked specifically about the manner in which the respondent was alleged to have failed to follow the ACAS Code the claimant submitted that this related to the failure by the respondent to ensure that AM participated in the grievance process. It is an arguable point whether the failure by the respondent to involve a particular employee in a grievance process amounts to a breach of the ACAS Code. As there is no award in favour of the claimant it is not necessary for me to determine this point. However, I am satisfied on the evidence that there was in any event no failure by the respondent to involve AM. She did not participate in the stage 1 hearing – as that took place at a time when she was absent from work on ill health grounds. She did participate in the stage 2 appeal hearing and was also involved in providing written answers to questions submitted by the claimant in advance of that hearing. I am satisfied there was no breach of the ACAS Code.
Conclusion
[204]I can understand why the claimant feels aggrieved by the process that she has been through. With the benefit of hindsight it would have been better for a much earlier approach to have been made to Dr Leckie. However, the case falls to be determined based upon the motivations behind the actions taken by AM and JG at the relevant time. I am satisfied they acted in good faith having regard to the knowledge that they had at the time, the advice from OH and the offer of hearing aids to the claimant from May 2024 onwards and the established practice of removing from front line duties those undertaking assessment for hearing aids. I also take into consideration the challenging health and safety environment within which the claimant and all her colleagues operate. I do not consider that either AM or JG were acting based upon a stereotypical assumption of hearing loss.[205]I dismiss all the claims.