Ms T (anonymised) v An NHS Clinical Commissioning Group: 2301276/2016
| Judgment Date | 09 July 2017 |
| Published date | 27 July 2017 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
Case No: 2301276/2016
10.5 Reserved judgment with reasons – rule 62 March 2017
EMPLOYMENT TRIBUNALS
Claimant: Ms T (anonymised)
Respondent: An NHS Clinical Commissioning Group
Heard at: London South (Croydon)
On: 11 & 12 May 2017 and 23 May 2017 (In chambers)
Before: Employment Judge John Crosfill, Ms N Christofi and Dr R
Fernando
Representation
Claimant: In person but assisted by her Uncle
Respondent: Madeline Stanley of Counsel
RESERVED JUDGMENT
1. The Claimant’s claim that her dismissal was discriminatory contrary to
Sections 15 and 39 of the Equality Act 2010 succeeds.
2. The Claimant’s claim that the Respondent failed to make reasonable
adjustments contrary to Sections 20 and 39 of the Equality Act 2010 is
dismissed.
3. The Claimant’s claim that the Respondent subjected her to direct
discrimination contrary to sections 13 and 39 of the Equality Act 2010 is
dismissed.
4. The Claimant’s claim that the Respondent failed to pay her notice pay brought
under the Employment Tribunal (Extension of Jurisdiction) Order 1994 was
conceded by the Respondent and is well founded.
5. The Claimant’s claim for wages for the period 1 to 19 February 2016 brought
pursuant to Section 23 of the Employment Rights Act 1996 is well founded.
6. The Claimant’s claim for accrued holiday pay for the period 1 to 19 was
conceded by the Respondent and is well founded.
Case No: 2301276/2016
10.5 Reserved judgment with reasons – rule 62 March 2017
ORDER
1. The Tribunal makes an order pursuant to rule 50 of Schedule 1 to the
Employment Tribunals (Constitution and Rules of Procedure) Regulations
2013 that the identities of the Claimant and all of the witnessed heard in these
proceedings and referred to in this judgment or other persons referred to in
the proceedings should not be disclosed to the public whether in the course of
any hearing or in its listing or in any documents entered on the Register or
otherwise forming part of the public record and this judgment has been
anonymized for those purposes.
REASONS
1. The Claimant is a Pharmacist. She applied for and was offered a job by
the Respondent. Following enquiries as to her fitness to undertake that role
she was not permitted to start work on the agreed date and shortly thereafter
was told that she would not be allowed to do so at all. On 7 July 2016 the
Claimant presented complaints to the employment tribunal relating to her
treatment by the Respondent. It is those complaints which were the subject
matter of the hearing before us.
2. The Claimant has been assisted in presenting her case by her uncle Mr
Keating. There had been a series of case management hearings during which
the issues that the tribunal needed to determine had been formulated and
finally encapsulated in an agreed list of issues which was found at pages 112
-114 of the agreed bundle. We shall set out the relevant agreed issues below
when considering the individual complaints.
3. At the outset of the hearing we were presented with an agreed bundle of
documents running to 708 pages. The Claimant provided some additional
documents which she had appended to a supplementary statement. The
Respondent made no objection either to the suplementary statement to the
additional documents. We proceeded to hear evidence from the Claimant
and her line manager at her previous place of employment, Mrs S and then
witnesses on behalf of the Respondent. These were “RS”, a Senior
Commissioning Pharmacist; “TW”, a Senior Associate in the Human
Resources Department of the Respondent; and Dr D, a Consultant in
Occupational Health who had advised the Respondent, and “UD” the Director
of Governance and Development for the Respondent.
4. The matter had originally been listed for 3 days but due to a shortage of
judicial resources only two days were made available. At the conclusion of the
evidence the parties made submissions and we refer to the material parts of
those submissions in reaching our conclusions below. After hearing
submissions there was insufficient time for deliberations and judgment and we
reserved our decision. A further day in chambers was held on 23 May 2017
Case No: 2301276/2016
10.5 Reserved judgment with reasons – rule 62 March 2017
where we were able to reach a unanimous decision on the issues we had to
decide.
Concessions made by the Respondent
5. In the course of the case management of this case and at the outset of the
hearing before us the Respondent made the following concessions:
5.1. That the Claimant was at all material times a disabled person for
the purposes of Section 6 of the Equality Act 2010; and
5.2. That the Claimant had been employed between 1 and 19 February
2016 and that the decision that she would not be offered work taken on
19 February 2016 amounted to a dismissal without notice. Accordingly,
she was entitled to any damages arising from a failure to provide
contractual notice: and
5.3. That the effect of the concession above was that the Claimant was
entitled to wages and accrued but untaken annual leave for the period 1-
19 February 2016.
6. The Respondent did not concede that it had any actual or constructive
knowledge of the Claimant’s disability. Further its concession that the
Claimant had been dismissed without contractual notice was not to be taken
as a concession that the Respondent recognised that this was the case. It
was said that the Respondent believed that it was entitled to withdraw its offer
of work.
Privacy/anonymity
7. At the outset of the hearing there was no application by either party for
the hearing to be held in private. As a matter-of-fact no member of public
attended the hearing. After submissions were made the parties jointly invited
us to make such anonymity orders to the full extent that we had the power to
do.
8. In the course of the evidence we heard about the matters that had given
rise to the Claimant’s disability and the effect that had on her. It is impossible
to set out proper reasons for the decision that we have reached without
referring to those matters. Whilst the starting point is clearly that hearings and
judgments should be public, Article 6 and 10 rights under the ECHR clearly
being engaged. We are required to, and do, give those rights their full weight.
Those rights however have to be balanced against the Claimant’s article 8
rights. Here such rights are clearly engaged as the subject matter of this case
concerns details of the Claimant’s mental health and the effect that has had
upon her life including the facts that (1) she is the victim of sexual violence
and (2) that we have heard about an incident where she had taken an
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