Claimant v NHS England
Outcome
Individual claims
The Claimant's requirement to shield during COVID-19 arose from her disability (Russell Silver Syndrome and Moyamoya Syndrome). The ARCP panel issued an Outcome 4 (release from training) in February 2022 after the Claimant's performance deteriorated following lengthy shielding. The Tribunal found this was unfavourable treatment because of something arising from disability (shielding). The Respondent's decision was not a proportionate means of achieving a legitimate aim as alternative outcomes (Outcome 10.2 or N1) were available and the panel assessed her over too short a period after her return from shielding.
The Respondent applied a PCP requiring the Claimant to complete training within a specified timeframe. This placed her at substantial disadvantage because her disability required her to shield during COVID-19, disrupting her training. The Respondent knew or ought to have known of this disadvantage. Reasonable adjustments (issuing Outcome 10.2 or N1, or allowing at least 6 months in full practice to rebuild confidence as recommended by the 2020 appeal panel) were not made. The Tribunal found these adjustments had a realistic prospect of avoiding the disadvantage.
Withdrawn by claimant during proceedings
Facts
Dr Marsh, a trainee anaesthetist with Russell Silver Syndrome and Moyamoya Syndrome, was required to shield during COVID-19 from March 2020 to April 2021 due to her vulnerability. After returning to work, she worked only 23 days over three months before going on sick leave in July 2021. In February 2022, an ARCP panel issued an Outcome 4 (release from training) citing significant regression in her clinical skills to novice level, despite being at ST7 year. She appealed, continued training, and in July 2023 the appeal was upheld and the Outcome 4 was replaced with an N1 outcome (insufficient evidence due to sickness absence).
Decision
The Tribunal found both discrimination claims succeeded. The Outcome 4 was unfavourable treatment because of something (deterioration in performance and confidence) arising from disability (lengthy COVID shielding). This was not justified as alternative outcomes (10.2 or N1) were available and the panel assessed over too short a period. The Respondent also failed to make reasonable adjustments by not issuing these alternative outcomes or allowing the recommended 6-month confidence-building period before assessment.
Practical note
Employers and training bodies must make meaningful adjustments for disabled trainees whose progress is disrupted by pandemic-related shielding, and cannot lawfully terminate training after such a short period of assessment without considering less discriminatory alternatives, particularly where COVID-specific outcome options were available in their own policies.
Legal authorities cited
Statutes
Case details
- Case number
- 1402219/2022
- Decision date
- 1 August 2025
- Hearing type
- full merits
- Hearing days
- 5
- Classification
- contested
Respondent
- Name
- NHS England
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Specialist Registrar in Anaesthetics
- Service
- 12 years
Claimant representation
- Represented
- Yes
- Rep type
- barrister