Ms K Green v Harrogate and District NHS Foundation Trust: 2501715/2021
| Jurisdiction | England & Wales |
| Judgment Date | 01 November 2022 |
| Date | 01 November 2022 |
| Published date | 10 November 2022 |
| Court | Employment Tribunal |
| Citation | 2501715/2021 |
| Subject Matter | Breach of Contract |
RESERVED JUDGMENT
Case No. 2501715/2021
1
EMPLOYMENT TRIBUNALS
Claimant:
Ms K Green
Respondent:
Harrogate and District NHS Foundation Trust
Heard at:
Newcastle
On: 1-4 August 2022
And on 25 August and 29 September 2022 (in
Chambers)
Before:
Employment Judge Aspden
Miss B Kirby
Mrs P Wright
REPRESENTATION:
Claimant: In person
Respondent: Mr Campion, Counsel
JUDGMENT
The unanimous judgment of the Tribunal is that Ms Green's complaints are not well-
founded and are dismissed.
REASONS
Claims and Issues
1. By a claim form received at the tribunal on 2 November 2021 Ms Green is pursuing
complaints that:
1.1. The respondent subjected her to disability discrimination during her employment.
1.2. The respondent constructively dismissed her and the constructive dismissal was:
RESERVED JUDGMENT
Case No. 2501715/2021
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1.2.1. unfair, contrary to the Employment Rights Act 1996;
1.2.2. in breach of contract (i.e. a wrongful dismissal); and
1.2.3. an act of disability discrimination contrary to the Equality Act 2010.
2. The claimant was represented by solicitors from the outset of these proceedings up until
shortly before this hearing. At a case management hearing in January 2022,
Employment Judge Sweeney directed the claimant to clarify certain elements of her
claim, including the provisions, criteria or practices that were said to give rise to a duty
to make reasonable adjustments. The complaints described below reflect the way in
which the claims were formulated by the claimant’s solicitor. Ms Green clarified some
elements of the claims at the outset of the hearing. Both Ms Green and the respondent
agreed that the complaints Ms Green is making are those set out below.
Ms Green's disability and the respondent’s knowledge of it
3. In her complaints of disability discrimination, Ms Green relies on three conditions: sleep
apnoea; anxiety and depression; and COPD.
4. Ms Green confirmed on the first day of the hearing that the acts of discrimination that
she is complaining about all happened in or after August 2020. The respondent accepts
that, at all material times:
4.1. Ms Green was a disabled person by virtue of the following impairments: sleep
apnoea; anxiety and depression; and COPD.
4.2. it knew, or could reasonably have been expected to know, that Ms Green had a
disability by virtue of sleep apnoea and that Ms Green had a disability by virtue of
anxiety and depression.
5. The respondent denies that, at any material time, it knew, or could reasonably have
been expected to know, that Ms Green had the disability of COPD. In light of our
conclusions set out below, we have not had to determine whether the respondent lacked
such knowledge.
Complaints 1 and 2: complaints of discrimination arising in consequence of
disability: Equality Act 2010 s15
6. Ms Green alleges that the respondent treated her unfavourably in the ways described
below for one or more of the following reasons:
6.1. because she had problems with drowsiness and sleepiness and had on occasion
fallen asleep or nodded off at work (which Ms Green says arose in consequence of
her sleep apnoea);
6.2. because her performance had deteriorated (which Ms Green says arose in
consequence of her sleep apnoea and the anxiety element of her anxiety and
depression);
RESERVED JUDGMENT
Case No. 2501715/2021
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6.3. because Mrs Havelock perceived Ms Green’s performance to be poor (which
perception Ms Green says arose in consequence of her sleep apnoea and the
anxiety element of her anxiety and depression).
7. Ms Green explained on the first day of the hearing that: her sleep apnoea interfered with
her ability to sleep, which in turn affected her memory, her ability to concentrate and her
judgement; in addition, she had increased anxiety due to concerns about falling asleep
at work; these matters caused a deterioration in her performance and/or caused Mrs
Havelock to perceive her performance as poor.
8. Ms Green’s case is that, for one or more of the reasons identified above the respondent
treated her unfavourably in the following ways, and this was discrimination under section
15 of the Equality Act 2010:
8.1. Complaint 1: From August 2020 Mrs Havelock reprimanded and criticised Ms Green
(as described in paras 25, 29, 31, 36, 39, 41, 42, 44 of the grounds of claim).
8.2. Complaint 2: The respondent (a) subjected Ms Green to the Respondent’s capability
management procedure with the risk of dismissal; and (b) put Ms Green on an
action plan.
9. The respondent’s position in relation to these complaints is as follows:
9.1. At this hearing Mr Campion accepted that Ms Green had problems with drowsiness
and sleepiness and had on occasion fallen asleep or nodded off at work; Ms
Green’s performance had deteriorated; and Mrs Havelock perceived Ms Green’s
performance to be poor. He also accepted that those things arose in consequence
of Ms Green’s disability.
9.2. In relation to Complaint 2, Mr Campion accepted that, because of those things, the
respondent (a) subjected Ms Green to the Respondent’s capability management
procedure with the risk of dismissal; and (b) put Ms Green on an action plan. The
respondent does not, however, accept that this was unfavourable treatment
(although it does accept that a potential outcome of the policy is dismissal on the
grounds of capability due to ill health).
9.3. In relation to Complaint 1, the respondent does not accept that Mrs Havelock
reprimanded or criticised Ms Green as alleged for any of the reasons alleged; or
that, if she did, it was unfavourable treatment.
9.4. In any event, the respondent contends that if it did treat Ms Green unfavourably as
alleged, this was a proportionate means of achieving a legitimate aims of improving
the health, wellbeing, attendance and performance of the respondent’s staff and
providing a safe and effective service to service users between the ages of 0-19,
including by ensuring employees perform satisfactorily in their posts.
Complaint 3: complaint of discrimination arising in consequence of disability:
Equality Act 2010 s15
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