X v North Cumbria Integrated Care NHS Foundation Trust: 2424418/2017
| Judgment Date | 09 August 2021 |
| Citation | 2424418/2017 |
| Published date | 17 August 2021 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
RESERVED JUDGMENT
Case No. 2424418/2017
1
EMPLOYMENT TRIBUNALS
Claimant:
X
Respondent:
North Cumbria Integrated Care NHS Foundation Trust
Heard at:
Manchester (by CVP)
On: 21 June to 29 June 2021
Before:
Employment Judge Phil Allen
Ms C S Jammeh
Mr J Murdie
REPRESENTATION:
Claimant: Mr L Bronze, counsel
Respondent: Ms A Niaz-Dickinson, counsel
JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The claimant was not unfairly dismissed. Her unfair dismissal claim does not
succeed and is dismissed.
2. The respondent did not breach its duty to make reasonable adjustments
contrary to Sections 20 and 21 of the Equality Act 2010. The claim for a failure to
make reasonable adjustments does not succeed and is dismissed.
3. The claimant was not dismissed because of something arising from her
disability contrary to Section 15 of the Equality Act 2010. The claimant’s claim for
discrimination arising from disability does not succeed and is dismissed.
REASONS
Introduction
1. The claimant was employed by the respondent from 4 November 2013 until
she was dismissed by reason of capability (health) on 23 May 2017, with the
dismissal being effective on 14 August 2017. The claimant had, at the relevant time,
the disability or disabilities of generalised anxiety disorder and moderate depressive
episode (as accepted by the respondent). The claimant contended that her dismissal
RESERVED JUDGMENT
Case No. 2424418/2017
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was unfair and amounted to discrimination arising from disability. The claimant also
alleged that events in April and May 2016 were also discrimination arising from
disability. The claimant also contended that the respondent had failed to comply with
its duty to make reasonable adjustments. The respondent contended that the
dismissal was fair by reason of capability (health) and/or some other substantial
reason and denied discrimination.
Claims and Issues
2. This claim is subject to a Restricted Reporting Order made by Employment
Judge Sherratt on 24 June 2019. That order was stated to remain in force
indefinitely. The order was made pursuant to Section 12 of the Employment
Tribunals Act 1996 and Rules 50(1) and 29 of the Employment Tribunals Rules of
Procedure 2013, it being in the interests of justice to do so. It prohibits the
publication in Great Britain in respect of these proceedings, of identifying matter in a
written publication available to the public or its inclusion in a relevant programme for
reception in Great Britain. Identifying matter means any matter likely to lead to
members of the public to identify the claimant. The order highlighted that the
publication of any identifying matter, or its inclusion in a relevant programme, is a
criminal offence. That order remains in place and applies to this judgment.
3. The case had a lengthy procedural history with preliminary hearings having
been conducted on: 12 February 2018; 7 June 2018; 4 June 2019 and 18 May 2021.
4. The disability relied upon by the claimant was generalised anxiety disorder
and/or moderate depressive episode. The respondent conceded that the claimant
had this disability or disabilities at the relevant time. It conceded disability as at 15
April 2016 and thereafter. The claimant stated that she had a disability at all material
times from April 2014 onwards. It was not necessary for the Tribunal to determine
when the claimant first had a disability.
5. In advance of the hearing the respondent had prepared a list of issues. That
list was amended at the very start of the hearing and a revised list of issues provided
in the course of the first day. Both parties agreed that that revised list of issues
stated the issues which needed to be determined.
6. The issues identified which needed to be determined were as follows:
Section 98 of the Employment Rights Act 1996 Unfair Dismissal
1. Was the claimant dismissed due to capability?
2. Did the respondent act reasonably when it relied on the above reason to
dismiss the claimant?
3. Did the respondent hold a genuine belief based upon a reasonable
investigation that the claimant could not work effectively within the
acquired brain injury service (known as ABI) if she was not physically
based in the same room as the ABI Team and only had contact with other
team members via the Team Leader and during team meetings? Did the
respondent have a genuine belief that a trial period was not reasonable?
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Case No. 2424418/2017
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4. If so, did the respondent act reasonably in the fast tracking of the
claimant’s absence from her substantive role to stage number four of the
Absence Management procedure?
5. Did the respondent take adequate steps to seek alternative employment
for the claimant?
6. Did the claimant unreasonably refuse to return to work in the ABI Team?
7. If so, did the respondent dismiss the claimant for this reason?
8. Did the respondent act reasonably in treating this as a Some Other
Substantial Reason to dismiss the claimant (see grounds of response
paragraph 55)?
9. Did the respondent follow a fair and reasonable procedure when
dismissing the claimant?
10. Did the respondent adequately consider alternatives to dismissal?
Section 20 of the Equality Act 2010 Failure to make reasonable adjustments
11. Did the respondent operate a PCP of requiring the claimant to work in the
same physical environment as the ABI Team? [this was conceded by the
respondent in submissions]
12. If so, did this have the effect of putting the claimant at a substantial
disadvantage as compared with non-disabled persons who did not suffer
from the claimant’s disability? The claimant says that working within the
same physical proximity of the ABI Team on a permanent basis caused
her stress and/or anxiety because of her disability. [This issue was
conceded by the respondent in submissions].
13. If so, would allowing the claimant to work separately from the ABI Team,
either in a separate room in the same building or a separate location have
been a reasonable step that would have alleviated the substantial
disadvantage caused by the PCP?
14. Would attempting mediation or issuing a reasonable management
instruction for staff to attempt mediation [or moving other parties to
different working areas] or any other reasonable adjustment as determined
by the Tribunal have alleviated the substantial disadvantage caused by the
PCP? [in submissions the claimant’s representative accepted that the
words “moving other parties to different working areas” should be deleted
from this allegation’]
15. Did the respondent’s decision to fast track the claimant to stage 4 of the
absence management procedure amount to a PCP? [The respondent
conceded that it did, during submissions]
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