Dr K Schopflin v East London NHS Foundation Trust: 3205913/2021
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 2023 |
| Date | 14 December 2023 |
| Published date | 04 January 2024 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
| Citation | 3205913/2021 |
Case Number: 3205913/2021
1
EMPLOYMENT TRIBUNALS
Claimant: Dr K Schopflin
Respondent: East London NHS Foundation Trust
Heard at: East London Hearing Centre
On: 14, 15, 16, 17, 21 November 2023
22, 23 November 2023 (in chambers)
Before: Employment Judge Gordon Walker
Members: Miss S Harwood
Mr L O’Callaghan
Representation:
Claimant: Ms N Newbegin, counsel
Respondent: Mr A Ross, counsel
RESERVED JUDGMENT
1. The complaint of unfavourable treatment because of something arising in
consequence of the claimant’s disability (section 15 Equality Act 2010) as
set out at paragraphs 4 (m), (n), (o), (q), and (r) of the list of issues is well
founded and succeeds.
2. All other claims are dismissed:
2.1 The complaints at paragraph 21 of the grounds of claim (paragraph
4(c)-(d) of the list of issues) are dismissed upon withdrawal by the
claimant pursuant to rule 52 of the Employment Tribunal Rules of
Procedure 2013.
2.2 The complaints at paragraphs 17, 18, 19, 42(b) and 43(b) of the list of
issues are dismissed upon withdrawal by the claimant pursuant to rule
52 of the Employment Tribunal Rules of Procedure 2013.
2.3 The complaint of direct disability discrimination (because of the
claimant’s and/or her husband’s disability) (section 13 Equality Act
2010) is not well founded and is dismissed.
2.4 The complaint of unfavourable treatment because of something
arising in consequence of the claimant’s disability (section 15 Equality
Case Number: 3205913/2021
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Act 2010) as set out at paragraphs 4 (a), (b), (e), (f), (g), (h), (i), (j), (k),
(l), and (p) of the list of issues is not well founded and is dismissed.
2.5 The Tribunal does not have jurisdiction to consider the complaint of
unfavourable treatment because of something arising in consequence
of the claimant’s husband’s disability (as set out at paragraphs 35-40
of the list of issues).
2.6 The complaint of failure to make reasonable adjustments (sections 20
and 21 Equality Act 2010) as set out at paragraphs 20-23 of the list of
issues is not well founded and is dismissed.
2.7 The Tribunal has jurisdiction to consider a complaint of indirect
discrimination: same disadvantage. Section 19 Equality Act 2010 is
read as if it includes the wording in the (not yet in force) section 19A
Equality Act 2010. The claimant does not bring a complaint of indirect
discrimination: same disadvantage. If the claimant does bring such a
complaint at paragraphs 41-50 of the list of issues, it is not well
founded and is dismissed.
2.8 The Tribunal does not have jurisdiction to consider a complaint of
indirect discrimination that is based on the claimant’s association with
a person holding a particular protected characteristic (as set out at
paragraphs 41-50 of the list of issues).
2.9 The complaint of harassment related to the claimant’s and/or her
husband’s disability (section 26 Equality Act 2010) is not well founded
and is dismissed.
REASONS
1. By claim form dated 9 September 2021 the claimant brought claims of
disability discrimination against the respondent.
2. The respondent is an NHS Foundation Trust providing mental health and
community healthcare services to people living in the City of London, London
Boroughs of Hackney, Tower Hamlets, Newham, and in Luton and
Bedfordshire.
3. The claimant was employed by the respondent from 9 March 2020 to 31
October 2021 as the Head of Information Governance (“IG”).
The issues
4. The issues were agreed at a preliminary hearing on 25 March 2022. Those
issues were updated before and during the hearing. A final version of the
agreed list of issues is appended to these reasons. The hearing was listed
to deal with the issue of liability only.
Case Number: 3205913/2021
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The evidence
5. The parties produced an agreed file of evidence. Some additional documents
were added to the file during the hearing by consent. The final version of the
file consisted of 1474 pages.
6. The Tribunal heard evidence from four witnesses, who produced signed
witness statements:
6.1 The claimant, who produced an impact statement about her alleged
disability and a witness statement on the issues of liability.
6.2 For the respondent:
6.2.1 Mrs C Kitchener, the claimant’s line manager, whose job title is:
Associate Director of IG and Data Protection Officer.
6.2.2 Mrs S Begom, who was employed as an HR Business Partner
at the material time.
6.2.3 Mr S Montague, Redeployment and Careers Advisor –
Placements Manager.
The hearing
7. The adjustments requested by the claimant were put in place and kept under
review. We took a morning and afternoon break of a duration requested by
the claimant (between 10 and 30 minutes). We ended each day at a time to
accommodate the claimant’s fatigue. On the fourth day it was agreed that
the claimant would leave the hearing at the end of the evidence, and that her
counsel would remain at the hearing for a short discussion about the list of
issues.
8. On the first day, the claimant made an application to amend her claim to
include the detriments at paragraphs 4(m)-(r) of the list of issues as part of
the harassment related to disability claim. This application was agreed by
the respondent and we allowed it. The claimant also withdrew paragraph 21
of her claim (issues 4(c) and (d) of the list of issues). Paragraph 21 was
dismissed upon withdrawal. The respondent’s uncontested application to
amend the amended grounds of resistance at paragraphs 5 and 29 was
allowed.
9. On the third day, after the conclusion of the claimant’s evidence, the claimant
made an application to amend the date at paragraph 4(j) of the list of issues
and to amend paragraph 18(a) of the list of issues to read as follows “did the
claimant need to take annual leave on four occasions between 30 September
2020 and 24 November 2020 due to her ongoing fatigue, that could not
otherwise be used for its proper purpose”. The first proposed amendment
was agreed by the respondent, and we allowed it, as it reflected the
claimant’s amendments to her witness statement made at the start of her
oral evidence.
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