Mrs R Davies v Gloucestershire Health and Care NHS Foundation Trust: 1404028/2019
| Jurisdiction | England & Wales |
| Judgment Date | 28 March 2021 |
| Citation | 1404028/2019 |
| Court | Employment Tribunal |
| Published date | 12 April 2021 |
| Subject Matter | Unlawful Deduction from Wages |
Case Number: 1404028/2019
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EMPLOYMENT TRIBUNAL
BETWEEN
CLAIMANT AND RESPONDENT
Mrs R. Davies Gloucestershire Health and
Care NHS Foundation Trust
___________________________________________________
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
___________________________________________________
Held remotely on the following dates: Monday, the 12th October 2020,
Tuesday, the 13th October 2020
Wednesday, the 14th October 2020
Thursday, the 15th October 2020
Friday, the 16th October 2020
Tuesday, the 24th November 2020 and
Tuesday, the 19th January 2021
Employment Judge: Mr D. Harris
Members: Mr Kayvan Ghotbi-Ravandi
Mrs Lesley Eden
Representation:
For the Claimant: In person
For the Respondent: Miss Martina Murphy (Counsel)
JUDGMENT
1. The claim of breach of the duty to m ake reasonable adjustments under
sections 20 and 21 of the Equality Act 2010 succeeds to the extent that
there was a breach of that duty on the part of the Respondent during the
period of the Claimant’s employment with the Respondent from June
2018 to the 8th July 2019.
2. The cl aim of disability discrimination under secti on 1 5 of the Equality
Act 2010 is dismissed.
3. The claim of constructive unfair dismissal is dismissed.
Case Number: 1404028/2019
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REASONS
The claim
1. By a claim form that was presented to the Tribunal on the 24th September
2019, the Claimant brought the following claims against the Respondent:
1.1 discrimination arising from disability (under section 15 of the Equality
Act 2010);
1.2. a failure to make reasonable adjustments (under sections 20 and 21
of the Equality Act 2010);
1.3 unlawful deduction from wages; and
1.4 unpaid holiday pay.
2. At a preliminary hearing that took place by telephone on the 20th February
2020, the claims of unlawful deduction from wages and unpaid holiday pay
were withdrawn and the claim was amended, with the permission of the
Tribunal, to include a claim of constructive unfair dismissal.
3. At the outset of the final hearing, it was decided by the Tribunal that all of the
remaining liability issues would be decided first and that issues relating to a
remedy or remedies, if they arose, would be determined at a later stage.
The liability issues
4. At the preliminary hearing on the 20th February 2020 it was decided, following
discussion with the parties, that the following issues fell to be determined by
the Tribunal at the final hearing. It is these issues that the Tribunal determined
at the final hearing.
Constructive unfair dismissal
5. The Claimant claims that the Respondent acted in fundamental breach of
contract in respect of the implied term of the contract relating to mutual trust
and confidence. The breaches, contended by the Claimant, were as follows:
5.1 A refusal by the Respondent to comply with the Claimant’s requests
for reasonable adjustments (as set out in more detail in the issues
arising in the discrimination claims);
5.2 On the 18th October 2019, being informed that her manager, Ms
Fletcher, would be attending a forthcoming meeting with the Claimant
despite the Claimant’s request that a manager other than Ms Fletcher
attend the meeting. This was said by the Claimant to have been the
‘last straw’ in a series of breaches of contract on the part of the
Respondent).
Case Number: 1404028/2019
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6. Did the Claimant resign on the 24th October 2019 because of the contended
breaches?
7. Did the Claimant delay before making her decision to resign and thereby
affirmed the contract of employment with the Respondent?
8. In the event that there was a constructive dismissal, was it otherwise fair within
the meaning of section 98(4) of the Employment Rights Act 1996?
Disability
9. Did the Claimant have a physical or mental i mpairment at the material time:
namely, an inability to concentrate in noisy environments, thus reducing her
ability to take instructions, to use the telephone and other routine functions.
The Respondent conceded that the Claimant had an impairment to the extent
of her ability to concentrate in noisy environments, which amounted to a
disability within the meaning of section 6 of the Equality Act 2010, but there
was an issue as to whether the Claimant had a disability that was greater than
the Respondent’s admission.
The claim under section 15 of the Equality Act 2010: discrimination arising
from disability
10. The allegations of unfavourable treatment as “something arising in
consequence of the Claimant’s disability” falling within section 39 of the
Equality Act 2010 were as follows:
10.1 The provision by t he Respondent of an adverse reference to a
prospective future employer of the Claimant, on the 4th February 2019,
which resulted in her not being offered that position.
10.2 The reduction of the Claimant’s pay, during a period of sick leave, by
half on the 24th March 2019 and to nil on the 23rd August 2019.
10.3 Whether the Respondent, in October/November 2019, refused to
address properly the Claimant’s queries as to reimbursement of pay
and instead telling her to take such queries to the Respondent’s
occupational health department.
11. Can the Claimant prove that the Respondent treated her as set out in the
above paragraph because of the “something arising” in consequence of the
disability?
12. Can the Respondent show that the treatment was a proportionate means of
achieving a legitimate aim?
13. Whether the Respondent knew, or could reasonably have been expected to
know, the full extent of the disability alleged by the Claimant.
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