Claimant v Norfolk and Suffolk NHS Foundation Trust

The tribunal found the respondent applied a PCP that administrative staff carrying out the claimant's work had to work within a ward-based or predominantly ward-based setting. This put disabled persons at a substantial disadvantage. The claimant suffered that disadvantage as she was unable to work in a ward-based setting due to her disabilities (spinal injury, fibromyalgia, SLE, PTSD, stress/depression). The respondent failed to make reasonable adjustments by not allowing her to continue working from an office separate from the ward, or by not allocating her the Band 4 Crisis Pathway role for which she met the essential criteria and was the only redeployment candidate.

The claimant resigned and claimed constructive dismissal. The tribunal found the respondent's failure to make reasonable adjustments and refusal to appoint her to the Crisis Pathway role (despite her meeting essential criteria and being the only redeployment candidate, contrary to the Trust's own Redeployment Policy) amounted to a fundamental breach of the implied term of trust and confidence. Contributing factors included the misrepresentation of her grievance about the Occupational Health Report consent, inexplicable delays in the grievance process, and refusal to provide investigation notes. The claimant resigned in response to these breaches, and the tribunal found she was constructively and unfairly dismissed.

The tribunal found the claimant was placed in a ward-based role without adjustments, but this was not because of her disability. The hypothetical comparator would have been treated the same way. The role descriptions in the Administrative Review stated all Band 4 roles were to be ward-based or predominantly ward-based. There was no evidence from which the tribunal could infer discriminatory reasoning. The lack of communication about the role was not related to the claimant's disabilities.

Under s.15 EqA (discrimination arising from disability), the tribunal found the claimant was subjected to unfavourable treatment when she was offered a ward-based role without adjustments, which was because of something arising from her disability (her inability to work on the ward). However, the tribunal dismissed the complaints that she was not offered the Crisis Pathway role (reason was the competitive interview policy, not her disability) and that Mr Pattison accused her of overstating her disabilities (no evidence this comment was made).