Mr Wheatton, of Counsel v Respondent — 2020

KH was employed as a nurse practitioner lead in the minor injuries unit at Andover. The tribunal found that she was physically disabled by reason of a bilateral congenital hip deformity from May 2015 and that the Respondent knew or ought to have known of that disability by July/August 2015. It also found that she was disabled by reason of anxiety and reactive depression from April 2016 and that the Respondent knew or ought to have known of that disability from that point. The case arose out of complaints made by staff in summer 2015, KH's own complaints about bullying and harassment, and the Respondent's handling of those matters, her suspension, her return to work, and the later NMC referral.

The tribunal accepted that some comments made to KH, including comments that she should be off sick, should not be at work on crutches, or would need a zimmer frame, were made and were connected to her disability. It found that some of the staff complaints and comments amounted to harassment on grounds of disability, and that management should have recognised early that part of the hostility concerned KH being visibly disabled at work and receiving adjustments. It also found that the Respondent failed to deal with KH's grievance under its own bullying and harassment procedure, instead treating it as something to be dealt with in the disciplinary process, which did not investigate her complaints at the time they were raised.

After KH was suspended in September 2015, the tribunal found that the Respondent did not follow its own suspension procedure, did not properly consider the effect on KH's mental health, and took no meaningful steps after she made clear references to suicidal thoughts. By January 2016 the Respondent was aware of her physical restrictions and had enough information to know that isolation in the workplace would be harmful to her mental health. The tribunal upheld reasonable-adjustment claims where KH was required to undergo the Dr Chitnis clinical assessment without the seated adjustments recommended by occupational health, was followed quickly down a corridor while on crutches, and was then prevented from returning to clinical work on a phased basis. It also found discrimination in the way she was placed in an isolated governance role and in the decision to require her to be fully fit before resuming clinical shifts.

The tribunal rejected some of KH's discrimination allegations. It found that a request for an additional member of staff to cover an emergency was not a reasonable adjustment, and that there was no less favourable treatment in relation to the modern matron point because there was no open post. It also treated some of the conduct relied on by the Respondent, including genuine performance concerns and parts of the investigation process, as not amounting to harassment or discrimination on the facts found. In the disciplinary process itself, the tribunal found that some allegations against KH were made out, including recruitment of an unqualified practitioner and the diamorphine issue, but it also found that her own grievances about bullying and harassment were still not properly investigated.