Claimant v Guy's and St Thomas' NHS Foundation Trust
Outcome
Individual claims
The tribunal found the respondent did apply a PCP requiring staff to attend the office 2 days per week which put women at a particular disadvantage due to unequal childcare burdens. The claimant was disadvantaged by this PCP. However, the PCP was held to be a proportionate means of achieving legitimate aims including effective business delivery, team integration, and supporting the claimant's underperformance. The flexibility offered (flexible hours, chosen days) mitigated the disadvantage sufficiently.
The tribunal found no connection between the alleged conduct (Williams' comment 'she will probably fuck that up', requests for meetings, issuing improvement notice, and communicating poor performance scores) and the claimant's sex. The conduct was found to be motivated by genuine performance management concerns documented consistently by multiple managers from 2020 onwards, not by sex-related stereotyping or animus.
The tribunal found no evidence that any of the alleged acts (Kamya's email, improvement notice, refusal of flexible working in October 2023) were done because the claimant had raised a grievance. The improvement notice was in train before the grievance. Kamya was unaware of the grievance. The refusal of flexible working in October 2023 reflected a consistent approach that pre-dated the grievance and was justified by business needs.
Facts
The claimant, a Band 7 Procurement Specialist at an NHS Trust, had significant documented performance issues from 2020 onwards noted by multiple managers. She went on maternity leave in December 2020 and returned in December 2021. In May 2022, management communicated an expectation that LPP staff attend the office at least 2 days per week. The claimant, a single mother, requested to work from home full-time citing childcare responsibilities. Her flexible working application was partially approved (reducing to 3 days per week) but she was required to work those days in the office. She raised a grievance in January 2023 alleging discrimination and harassment.
Decision
The tribunal dismissed all claims. The indirect sex discrimination claim failed because, although the 2-day office attendance requirement disadvantaged women with childcare responsibilities, it was a proportionate means of achieving legitimate business aims including supporting the claimant's documented underperformance. The harassment claims failed as the alleged conduct (critical comment, meeting requests, improvement notice, poor performance scores) was unrelated to sex and motivated by genuine performance concerns. The victimisation claims failed as there was no evidence the alleged detriments were because of the claimant's grievance.
Practical note
A flexible working refusal can survive an indirect discrimination challenge where the employer demonstrates genuine business need, offers significant flexibility to mitigate disadvantage, and the refusal is rationally connected to legitimate aims such as supporting an underperforming employee — but employers must carefully document performance concerns and the business rationale for office attendance requirements.
Legal authorities cited
Statutes
Case details
- Case number
- 2301262/2023
- Decision date
- 16 October 2024
- Hearing type
- full merits
- Hearing days
- 5
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Procurement Specialist
Claimant representation
- Represented
- No