Ms E Kalhorv The Hospital of St John and St Elizabeth: 2202274/2020
| Jurisdiction | England & Wales |
| Court | Employment Tribunal |
| Judgment Date | 28 December 2021 |
| Citation | 2202274/2020 |
| Date | 28 December 2021 |
| Subject Matter | Disability Discrimination |
Case number: 2202274/2020
1
EMPLOYMENT TRIBUNALS
JUDGMENT
BETWEEN
CLAIMANT RESPONDENT
MS E KALHOR
V THE HOSPITAL OF ST JOHN
AND ST ELIZABETH
HELD AT: LONDON CENTRAL
ON: 17-21 MAY 2021
EMPLOYMENT JUDGE: MR M EMERY
MEMBERS: MS P KEATING
MS S SAMEK
REPRESENTATION:
For the claimant: Mr I Browne (Counsel)
For the respondent: Mr C Crow (Counsel)
JUDGMENT
1. The claim of direct disability fails and is dismissed.
2. The claim of discrimination arising from disability succeeds in part.
3. The claim of a failure to make reasonable adjustments succeeds in part.
4. The claim of disability-related harassment succeeds in part.
5. The Tribunal declares that the claimant was unfairly dismissed.
Case number: 2202274/2020
2
REASONS
The Issues
Disability Status
1. The parties agree that the claimant was disabled (as defined at s.6 Equality Act
2010 (EqA) for the period October 2018 to the date of her resignation with the
condition of cervical spondylosis, which had a substantial and long-term impact
on her. The substantial impact was the pain and significant discomfort caused
by sitting down for long periods, and by moving her neck to deal with members
of the public while sitting at a computer.
Direct discrimination
2. Has the Claimant been subject to the following conduct?
a. The Respondent ignored and failed to acknowledge or discuss with the
Claimant all of her OH reports and medical reports
b. The Respondent ignored reports of Health and Safety issues on 22 October
2018 and 4 April 2019
c. [withdrawn]
d. The Respondent ignored the Claimant’s grievance of 12 April 2019
e. The Respondent ignored the Claimant’s grievance about CC
f. The dispute about leave authorisation between 21 October and 6 November
2019 including JB sending email on 31 October asking the Claimant to pay
for cover out of pocket when sick
g. JB stating “we don’t do sick here” on 4 December 2019 and ignoring the
Claimant’s request and joking
h. Refusing authorisation for leave on 6 December 2019 and sending a curt
email, not making adjustments to the Claimant’s working time
i. Commencing a disciplinary investigation on 12 December 2019
j. The disciplinary investigation meeting of 19 December 2019 and
the Respondent did not conclude the disciplinary investigation
k. [withdrawn]
l. Demotion to the role of concierge on 17 January 2020
m. [withdrawn]
n. The Respondent did not respond to the grievance of 2 February 2020
o. The Claimant not being named on the April 2020 rota
p. [withdrawn]
3. Was this conduct less favourable treatment?
4. Who is the appropriate comparator? The claimant relies on a hypothetical
comparator.
5. Did the Respondent subject the Claimant to less favourable treatment than the
appropriate comparator because of the Claimant’s disability?
Case number: 2202274/2020
3
Discrimination arising from disability
6. Has the Claimant been subject to the following conduct? In particular the
Claimant alleges as more fully set out in the Further and Better Particulars of
Claim dated 20 October 2020:
a. The Respondent ignored and failed to acknowledge or discuss with the
Claimant all of her OH reports (bar the last which was inadequately
responded to) and medical reports
b. The Respondent ignored reports of H&S issues on 22 October 2018 and 4
April 2019
c. [withdrawn]
d. The Respondent ignored the Claimant’s grievance of 12 April 2019
e. The Respondent ignored the Claimant's grievance CC
f. The dispute about leave authorisation between 21 October and 6 November
2019 including JB sending email on 31 October asking the Claimant to pay
for cover out of pocket when sick
g. JB stating “we don’t do sick here” on 4 December 2019 and ignoring the
Claimant’s request and joking
h. Refusing authorisation for leave on 6 December 2019 and sending a curt
email, not making adjustments to the Claimant’s working time
i. Commencing a disciplinary investigation on 12 December 2019
j. The disciplinary investigation meeting of 19 December 2019 and
the Respondent did not conclude the disciplinary investigation
k. [withdrawn]
l. Demotion to the role of concierge on 17 January 2020
m. [withdrawn]
n. The Respondent did not respond to the grievance of 2 February 2020
o. The Claimant not being named on the April 2020 rota
p. [withdrawn]
7. Did that conduct amount to unfavourable treatment?
8. Did the Claimant’s requirement to take time off work and have reasonable
adjustments to her working life arise as a consequence of her disability?
9. If yes, was the Claimant subjected to the unfavourable treatment because she
needed to have time off work and have reasonable adjustments to her working
life?
10. If yes, have the Respondents shown that the treatment was a proportionate
means of achieving a legitimate aim?
a. What was the legitimate aim?
b. Was the treatment a proportionate means of achieving that aim?
Failure to make reasonable adjustments
11. Has the Respondent applied the provision, criterion or practice of “working as
her contract requires” to the Claimant?
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