Dr Z Fitzgerald v Greater Manchester Mental Health NHS Foundation Trust: 2405376/2020
| Jurisdiction | England & Wales |
| Court | Employment Tribunal |
| Judgment Date | 19 July 2022 |
| Citation | 2405376/2020 |
| Date | 19 July 2022 |
| Subject Matter | Disability Discrimination |
RESERVED JUDGMENT
Case No.2405376/2020
1
EMPLOYMENT TRIBUNALS
Claimant:
Dr Z Fitzgerald
Respondent:
Greater Manchester Mental Health NHS Foundation Trust
Heard at:
Manchester
On: 4-8, and 11 July and (in
chambers) 13 July 2022
Before:
Employment Judge Phil Allen
Mr B Rowen
Mr WK Partington
REPRESENTATION:
Claimant: In person
Respondent: Mr N Caiden, counsel
JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The respondent did not subject the claimant to unfavourable treatment
because of something arising in consequence of his disability or, where it did so, the
treatment was a proportionate means of achieving legitimate aim. The claims for
discrimination arising from disability contrary to section 15 of the Equality Act 2010
do not succeed and are dismissed.
2. The respondent did not breach the duty to make reasonable adjustments. The
claim for breach of the duty to make reasonable adjustments contrary to sections 21
and 22 of the Equality Act 2010 does not succeed and is dismissed.
3. The respondent did not treat the claimant less favourably because of his
disability. The claims for direct disability discrimination contrary to section 13 of the
Equality Act 2010 do not succeed and are dismissed.
4. The claimant was not subjected to unlawful harassment related to disability by
the respondent. The claims for unlawful harassment contrary to section 26 of the
Equality Act 2010 do not succeed and are dismissed.
5. Other than the claims relating to the relocation of the claimant’s office, the
letter of 26 November 2019, and organising a meeting on 5 December 2019, the
RESERVED JUDGMENT
Case No.2405376/2020
2
claimant’s claims were not brought within the time required by section 123 of the
Equality Act 2010, they were not part of a continuing act with claims brought in time
and found, and it was not just and equitable to extend time. Accordingly, the Tribunal
does not have jurisdiction to determine those claims.
6. The claimant’s claims that he was subjected to a detriment because he had
done a protected act contrary to section 27 of the Equality Act 2010 (victimisation)
are dismissed on withdrawal.
REASONS
Introduction
1. The claimant was employed by the respondent with continuity of employment
from 2007 or 2008, as a Consultant Psychiatrist. From 1 August 2012 until 2017 he
was also Inpatient Lead Consultant for Manchester. The claimant has bipolar
disorder, which was accepted as being a disability. The claimant brought claims of
direct disability discrimination, discrimination arising from disability, breach of the
duty to make reasonable adjustments, harassment and victimisation arising from his
treatment from 2017 to the date when the claim was entered at the Tribunal on 6
May 2020.
Claims and Issues
2. Preliminary hearings (case management) were conducted in this case on 29
October 2020 and 27 January 2021. An agreed list of issues was included in the
bundle of documents (97). At the start of the hearing, with one minor amendment
explained by the respondent’s representative, the list was agreed by both parties as
containing the issues which the Tribunal needed to decide.
3. It was recorded in the previous case management order and was confirmed at
the start of the hearing, that only liability issues would be determined at the hearing.
The remedy issues were left to be determined later, only if the claimant succeeded in
any of his claims.
4. During the second day of the hearing and before he gave evidence, the
claimant confirmed that he was only relying upon one of the two protected acts
recorded in the list of issues, which was the grievance he submitted on 2 October
2017. Later that morning, while he was being cross-examined, it also became clear
that the claimant was not genuinely asserting that the matters recorded as
detriments for his victimisation claim were genuinely things which he alleged had
occurred because he had raised his grievance. The claimant was asked to consider
whether he was pursuing his complaints of victimisation during the lunch break on
the second day. After lunch and following a brief discussion about the victimisation
allegations, the claimant confirmed that he was not pursuing his victimisation claims.
He asserted that the detriments upon which he had relied had occurred and were
detriments, but he was no longer asking the Tribunal to decide whether those
detriments were as a result of him having raised a grievance. The claimant
confirmed that he was withdrawing his victimisation claims and he was happy for
RESERVED JUDGMENT
Case No.2405376/2020
3
them be dismissed on withdrawal. The issues which had previously been identified
for the victimisation claim are not re-produced in the list of issues below.
5. The issues identified were as follows (it not being necessary to reproduce
issues 1, 2 or 5-7):
3. The claimant’s disability is bipolar disorder and the respondent admits that
such is a disability at the relevant time of the alleged discrimination and further
that it had requisite knowledge of such disability.
Time limits
4. ACAS Early Conciliation took place between 24 February 2020 – 7 April 2020.
Accordingly, all acts complained of before 25 November 2019 are on the face
of it out of time unless:
a. it is part of a continuing act with something that was in time; or
b. time is extended on ‘just and equitable’ basis.
Arising from disability discrimination
8. Whether contrary to s. 15(1) Equality Act 2010 and s. 39(2)(c)-(d) Equality Act
2010 the claimant was subjected to discrimination arising from disability,
having regard to:
i. Did the respondent treat the claimant unfavourably;
ii. If so, was this because of something arising in consequence of his
disability;
iii. If so was the treatment a proportionate means of achieving a legitimate
aim?
9. In terms of the “unfavourable treatment”, 8(1) above, the claimant alleges:
i. he was excluded from monthly departmental consultant meeting
throughout 2017 and onwards;
ii. termination of his contract on 20 June 2017 and exclusion from being
reappointed;
iii. reallocating the claimant’s office to one on the other side of the building
which was shared by the on call consultant upon his return from sick
leave on 30 January 2020;
iv. organising a sickness absence meeting for 5 December 2019.
10. The claimant asserts that each of the 4 unfavourable treatments above are
said to be because of something that arose from his bipolar disorder, in that:
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