Hello again and welcome back to our case of the week. Last week we looked at a case that made the national news because of an offensive word being used during a racism awareness training session that resulted in dismissal. Those that missed it can find it here. This week we’re looking at a disability discrimination claim in the case of Ms Nikki Gray v Surrey and Borders Partnership NHS Foundation Trust.

The Respondent is an NHS trust which provides healthcare services to the Surrey area. The Claimant worked for the Respondent for 28 years in a senior position within the Violence Reduction team. The Claimant brought various disability discrimination claims against the Respondent in addition to claims for constructive unfair dismissal and victimisation.

The Claimant was diagnosed with breast cancer in 2017. She submitted claims to the Tribunal on the grounds that the Respondent failed to manage her disability, or act on the recommendations in her occupational health (OH) reports. She also claimed the Respondent failed to make reasonable adjustments and remedy her grievance. The Claimant resigned, on notice, in response to a fundamental breach of her contract by the Respondent. The Respondent denied the claims and said the Claimant’s employment was terminated by way of her resignation.

Discrimination

The Claimant claimed the Respondent failed to consult her about the development of a band 7 VR role and failed to encourage her to apply for it. The Claimant later accepted that the Respondent had consulted with her about the role but said that her complaint is that she was not encouraged to apply for the position. She claimed she was also treated unfavourably because she was informed that there was a new way of working for the Claimant’s role which would be primarily face-to face delivering lots of physical training. She also said she was not invited to any meetings to plan delivering face-to-face training or asked to contribute. The Claimant’s request for a compassionate day to attend a hospital appointment was denied by the Respondent who asked her to take a day’s annual leave instead. She said she was also told by her manager that he wanted to redeploy her out of the team, asserting this unfavourable treatment was because of her sickness absence that arose in consequence of her disability.

The Respondent accepted that much of the Claimant’s sickness absence arose in consequence of her disability, but it was not her sickness absence that prompted the treatment the Claimant was alleging. The Respondent’s position was that its treatment was a proportionate means of achieving its aim of maintaining an effective and fully functioning workforce. There was also no new way of working introduced, it was a return to pre-pandemic face-to-face working. She was not invited to meetings relating to planning the delivery of face-to-face training, because she was not able to provide face-to-face training. The Respondent declined the Claimant’s request for compassionate leave, as compassionate leave is given in response to a bereavement, not to attend a medical appointment.

Constructive Unfair Discrimination

The Claimant claimed there was a fundamental breach of her contract of employment, breaching the implied term of trust and confidence. She stated the Respondent made comments that she was not “working to capacity”, she was “stressing the team” by her absence, and support would only be provided if management supplied “additional trainer resources”, emphasising that her disability was having an impact on the team budget. She said the Respondent started formal sickness absence procedures against her instead of carrying out a risk assessment first. She stated the ‘last straw’ was when the Respondent required her to attend a return to work/sickness absence meeting with two colleagues who were the subject of her grievance, before even arranging a grievance meeting.

In response to these claims, the Respondent asserted that there were no recommendations in OH reports that it had not acted upon, except those that did not apply until the Claimant was fit to work. The Claimant’s fit notes did not mention stress at work until after she resigned and while OH reports mentioned stress at work, the Respondent understood this to relate to the Claimant’s grievance, which it attempted to resolve, however the Claimant refused to cooperate. The Respondent also stated it would have been OH that carried out a stress prevention assessment.  The Respondent was not clear who was the subject of the Claimant’s grievance and the failure to progress the grievance was down to the Claimant’s request to postpone it, and then her resistance to participate in it. The Respondent also believed that at the time the Claimant resigned, she had moved to Nottinghamshire and was already looking to end her employment.

Victimisation

The parties agreed the Claimant did a protected act when raising a grievance. The Claimant asserted the complaints mentioned above were detrimental and were because she did a protected act; the Respondent agreed certain facts had occurred but that the Claimant failed to establish the link between the matter complained of and the protected act.

The claims were ultimately dismissed by the Employment Tribunal as they were not well-founded and most of the discrimination and victimisation complaints were significantly out of time.

Takeaway Points

Not all tribunal claims are well-founded or substantiated. At any stage of the proceedings a Tribunal may strike out all or part of a claim if it believes the claim is scandalous, vexatious or has no reasonable prospect of success. 

Claims of discrimination under the Equality Act 2010 are subject to strict time limits and must be brought within 3 months starting with the date of the act to which the complaint relates. The employment tribunal may extend the time limit if it thinks it is just and equitable to do so, however this is uncommon. The 3-month time limit may be extended by ACAS early conciliation.

If you or someone you know are dealing with any of the issues mentioned above, please contact a member of our team who will be able to assist.