Dr S McDaid v Alder Hey Children’s NHS Foundation Trust: 2420922/2017
| Judgment Date | 19 December 2018 |
| Citation | 2420922/2017 |
| Published date | 10 January 2019 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
RESERVED JUDGMENT
Case No. 2420922/2017
1
EMPLOYMENT TRIBUNALS
Claimant:
Dr S McDaid
Respondent:
Alder Hey Children’s NHS Foundation Trust
Heard at:
Liverpool
On:
12-28 November 2018
Before:
Employment Judge T Vincent Ryan
Mr A G Barker
Ms S Khan
REPRESENTATION:
Claimant:
Respondent:
Mr R Owen-Thomas, Counsel
Mr J Crossfill, Counsel
JUDGMENT
The unanimous judgment of the Tribunal is:
1. The claimant's claims of indirect discrimination in relation to the protected
characteristic of disability are dismissed upon them having been withdrawn by the
claimant.
2. The claimant's claims of discrimination on 14 January 2015, (when one of the
respondent’s managers made an erroneous reference to the claimant having been
absent from work on sick leave for seven months), and 27 May 2015, (when one of
the respondent’s managers asked the claimant about her reduced working pattern
and commented on its effect on the service), were presented to the Tribunal out of
time in circumstances where it would not be just and equitable to extend time to the
date of presentation of the claimant’s claim on 10 October 2017, and these claim are
dismissed.
3. The claimant’s claim that the respondent failed to make a reasonable
adjustment in accordance with its statutory duty in the period from 1 September 2014
to 31 March 2016 was presented to the Tribunal out of time in circumstances when it
would not be just and equitable to extend time to the date of presentation of the
claim on 10 October 2017, and this claim is dismissed.
RESERVED JUDGMENT
Case No. 2420922/2017
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4. All other of the claimant's claims of direct discrimination contrary to section 13
Equality Act 2010 (“EA”), discrimination arising from disability contrary to section 15
EA, failure to make reasonable adjustments contrary to section 21 EA and
harassment contrary to section 26 EA are not well-founded, fail and are dismissed.
5. The claimant made protected disclosures of information tending to show
endangerment to health and safety in September 2015 regarding the provision of
mental health services in schools, and 28 September 2016 regarding internal waiting
lists and clinic arrangements, but the claimant's claims that she was subjected to
detriment because of those disclosures were presented out of time in circumstances
where it was reasonably practicable for the claimant to have presented them within
the prescribed time limit. These claims are dismissed. In any event they are not well-
founded and would have failed; the claimant did not suffer detriment on the ground of
having made these disclosures.
6. The claimant did not make protected disclosures between September 2014
and January 2015 during the consultation on planned reorganisation of services by
the respondent, or on 7 September 2016 when she made representations regarding
proposed increases in workload for consultant psychiatrists.
REASONS
1. Introduction and Issues
1.1 The claimant is a consultant psychiatrist employed by the respondent. The
claimant is a disabled person by reason of cancer. The working
environment has been strained and the claimant, with others and for
others, took up advocacy on certain matters in apparent conflict at times
with the respondent’s management. The claimant says that she has made
protected disclosures in relation to health and safety. The claimant alleges
that she was subjected to less favourable, unfavourable and otherwise
detrimental treatment (details of the actual claims are set out below in the
list of issues). Her claims span several years. The claimant is currently on
long-term sickness absence.
1.2 In addition to witness evidence (the claimant’s, 14 witnesses whose
evidence was heard and one whose evidence was read but who did not
attend the Tribunal (Ms Cain)), the parties produced:
1.2.1 a bundle of documents comprising three lever arch files,
exceeding 1,047 pages (and all page references in these
Reasons refer to the trial bundle unless otherwise indicated) (C1-
3),
1.2.2 an agreed chronology of events (C4),
1.2.3 an agreed “list of key people” (C5),
RESERVED JUDGMENT
Case No. 2420922/2017
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1.2.4 an agreed amended List of Issues (C6) to which further
amendments were made during the hearing, (and those
amendments are incorporated in the List of Issues set out below),
1.2.5 the respondent’s opening note (C7) which contained an agreed
table setting out the events and claims made in respect of those
events, summarising the List of Issues,
1.2.6 the claimant's written closing submissions (given to supplement
oral submissions),
1.2.7 the respondent’s skeleton argument (given to supplement oral
submissions), and
1.2.8 an Authorities bundle comprising 379 pages of Judgments to
which the respondent referred in closing submissions.
1.3 C6 set out a draft amended List of Issues which was agreed by the parties
at the outset of the hearing, but further amendments and clarifications
were then made and the amendments were further clarified and agreed
during the hearing on 14 November 2018. They are as follows:
Direct disability discrimination (section 13 EA)
1.3.1 Did the respondent:
(1) Fail to manage the claimant’s “return” (sic – it was agreed
to be her commencement of work) to work in September
2014;
(2) Fail to allocate the claimant a suitable office;
(3) During the course of a meeting on 24 November 2014, did
one of the respondent’s managers push a table at the
claimant, causing her to sustain a bruise;
(4) Behave as alleged by the claimant at paragraph 81.3 of her
claim at a meeting on 14 January 2015;
(5) Fail to permit a phased return to work in February 2015;
(6) In a meeting in February 2015 impose a DCC/SPA ratio in
excess of what was required contractually [where DCC
stands for Direct Clinical Commitment and SPA stands for
Supporting Professional Activity];
(7) Through Dr Earnshaw, tell the claimant on 9 April 2015 that
he did not like the tone of her voice;
(8) Attempt to permanently reduce the claimant's hours from
five hours to four hours on 30 May 2015;
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