Claimant v NHS Lothian

In December 2022, Colleague A told claimant 'everyone is sick of you' in response to her needing time off for a medical appointment for her bladder impairment. This was unwanted conduct related to disability and was objectively reasonable for the claimant to view as creating an intimidating, hostile, degrading, humiliating or offensive environment.

On 6 June 2024, SC commented that 'maybe another area would be better able to support' the claimant after informing her that required adjustments would not be put in place. This was unwanted conduct related to disability and it was objectively reasonable for the claimant to believe this created an intimidating, hostile, degrading, humiliating or offensive environment.

Tribunal found respondent failed to make reasonable adjustments in six areas: (1) time to gather thoughts and plan clinical day; (2) ready access to bathroom facilities with appropriate time between visits, work planning with regular breaks, and removal of timed back-to-back visits; (3) matching duties to function to avoid joint pain; (4) compressed working hours; (5) removal of hot desking requirement and provision of quieter seating; and (6) removal of workload allocation from central spreadsheet process. These would have alleviated substantial disadvantage caused by claimant's disabilities at minimal cost and disruption.

Tribunal agreed with respondent that this complaint was properly a complaint of failure to make reasonable adjustments and was more appropriately addressed under that head of claim.

Colleague B's comment 'I don't know how to approach you' on 11 March 2024, though unwanted and related to disability, did not have the proscribed purpose and it was not objectively reasonable for it to have the proscribed effect—she was trying to open a dialogue and the comment did not meet the high threshold.

Alleged misrepresentation in OH referral about what consultant psychiatrist recommended was not established—it was not a misrepresentation to state that working a longer day would be better when claimant sought to compress hours from 3 shorter days to 2 longer days.

Management referrals to OH without claimant's informed consent on 24 February and 28 March 2024, though unwanted conduct, were not related to disability—they related to JG's misunderstanding of procedures and oversight, not to disability itself.

JG's comment on 15 April 2024 that 'HR would not be pleased' she shared OH referral wording was not related to disability—it was related to her misunderstanding of what she ought to be doing, not disability.

Multiple comments made by managers in internal communications (sharing health information, discussing capability, handwritten notes, etc.) discovered via subject access request, though unwanted and related to disability, were not objectively reasonable to have the proscribed effect in context—they were internal management discussions not directed at claimant and involved appropriate considerations of how to support her or statements of fact.