Claimant v Barking, Havering, and Redbridge University Hospitals NHS Trust

The tribunal found that the respondent did not suggest the claimant should take ill-health retirement (merely explored it as an option) and did not tell her colleagues were unhappy with her. The comment about her absence impacting the service was not a detriment as a reasonable employee would understand this was inevitable. The tribunal held this was not less favourable treatment because of disability, as such comments would apply to any lengthy absence regardless of cause.

The tribunal found on the facts that the respondent did not suggest ill-health retirement as the claimant alleged, and did not tell her colleagues were unhappy. The comment about impact on service did not amount to unfavourable treatment or a detriment. The tribunal further found this was not because of something arising from disability, as the comment would have been made for any lengthy absence.

The tribunal found that prior to 17 January 2022, the respondent did not know and could not reasonably have known of the claimant's disabilities, so the duty to adjust had not arisen. On obtaining OH advice and therapy: OH advice was obtained when appropriate; OH's clinical decision not to offer therapy (because claimant was under crisis team and later required specialist BPT) was reasonable. On the delayed return-to-work meeting: this occurred before the duty arose. Even if the duty had arisen, the delay was not a failure to make a reasonable adjustment given the manager's workload and staff absences.

By a majority (EJ Moor and Ms Jansen), the tribunal found that the comment at the 12 July 2022 meeting that the claimant's absence was having an impact on the service did not amount to unlawful harassment. The majority held the comment did not violate dignity or create a proscribed environment as it was a neutral statement of fact required to explain the move to stage 3. The minority (Mr Woodhouse) disagreed, finding the comment did have the effect of creating a humiliating environment given the claimant's EUPD and anxiety, and that it related to disability because the absence was caused by disability-related medical intervention. All remaining harassment claims failed unanimously on the facts.

The tribunal granted permission to amend the claim to include unfair dismissal. However, the tribunal found there was no fundamental breach of contract. The alleged breaches (suggesting ill-health retirement, making the claimant feel guilty, failing to obtain OH advice, failing to provide therapy, delayed return-to-work meeting) either did not occur on the facts or, where they did occur, the respondent had reasonable and proper cause. The delay in the return-to-work meeting was not sufficiently serious to destroy trust and confidence. Without a fundamental breach, there was no dismissal and therefore no unfair dismissal.