Claimant v Kingston and Richmond NHS Foundation Trust
Outcome
Individual claims
The tribunal found the claimant's bilateral mixed hearing loss did not influence the respondent's decisions. The claimant failed to reach required competencies as a Registered Nurse, including in areas unconnected to hearing such as medicine management, time management and prioritisation. The Trust dismissed him on capability grounds, not because of his disability. The claimant failed to establish a prima facie case that his treatment was less favourable than a hypothetical comparator without hearing loss would have received. The dismissal appeal rejection, failure to offer alternative employment, and NMC referral would all have occurred for the hypothetical comparator in materially similar circumstances.
Facts
Mr Thomas, an Internationally Educated Nurse from India with bilateral mixed hearing loss, was employed by an NHS Trust from March 2022 to June 2023. He worked predominantly supernumerary and failed to meet minimum competency standards despite extensive support and Performance Improvement Plans. He was dismissed on capability grounds in June 2023 after failing competencies in medicine administration, communication, time management and other areas. The Trust referred him to the NMC on competency grounds. His dismissal appeal in August 2023 was rejected despite medical evidence of his hearing loss being presented. The claimant claimed direct disability discrimination.
Decision
The tribunal dismissed the claim. It found the claimant's hearing loss did not influence the respondent's decisions to dismiss him, reject his appeal, not offer alternative employment, or refer him to the NMC. Many of the competency failures (medicine management, time management) were unconnected to hearing loss. A hypothetical comparator with similar competency issues but no hearing loss would have been treated identically. The claimant failed to establish a prima facie case of discrimination.
Practical note
Dismissal for genuine capability concerns unrelated to a disability will not constitute direct discrimination even where the employee has a disability that may have contributed to some performance issues, if the decisive competency failures are independent of the disability.
Legal authorities cited
Statutes
Case details
- Case number
- 2306137/2023
- Decision date
- 23 May 2025
- Hearing type
- full merits
- Hearing days
- 5
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Band 5 Internationally Educated Nurse
- Service
- 1 years
Claimant representation
- Represented
- No