Mr S Ellis v University Hospitals Dorset NHS Foundation Trust — 2024

Mr Ellis, a consultant in restorative dentistry, alleged that University Hospitals Dorset NHS Foundation Trust constructively dismissed him and discriminated against and harassed him in connection with his Crohn's disease and his sex. The tribunal accepted that he was disabled by reason of Crohn's disease, and found that the respondent knew he had Crohn's disease, but it did not accept that the respondent knew he required unimpeded toilet access at all times. The main office issue arose after COVID-19 restrictions meant the outer office beside his room was used as a changing area for staff from March 2020; the tribunal found that this was done because it was the only suitable space available at the time, not because of his disability or because he was shielding.

The tribunal rejected the discrimination claims based on that office arrangement. It found that the claimant had not proved the respondent had actual or constructive knowledge of any substantial disadvantage linked to his need for toilet access, so the reasonable adjustments claim failed. It also found no evidence of the group disadvantage required for indirect discrimination. The section 15 complaint failed because the treatment was not because of the consequence relied on, and the tribunal accepted that the respondent's aim was to maintain safe changing facilities during the pandemic. The direct disability discrimination allegation about the 11 January 2021 altercation was withdrawn in closing submissions and was recorded in the judgment as dismissed.

On the 11 January 2021 incident, the tribunal found that Helen Pope shouted at the claimant, threw keys on a desk and slammed a door after he pushed through a locked changing area while staff were changing. It accepted her evidence that she reacted because of his conduct, not because of sex, and found she would have responded the same way to a woman in the same circumstances. On that basis, the direct sex discrimination claim failed. The harassment complaints also failed because the conduct found by the tribunal was not related to disability or sex.

The claimant relied on the handling of his Dignity at Work complaint, including the investigation by Lisa Pigott, the delay in the outcome letter, and the fact that the outcome letter referred him to the grievance route rather than an appeal. The tribunal accepted that the process was not followed to the letter and that there had been a delay in sending the outcome letter, but it found that the investigating officer's conclusions were fair, that the respondent had reasonable and proper cause for the steps it took, and that the claimant had been given answers to his questions and a route to challenge the outcome. It concluded that there was no repudiatory breach of contract and therefore no constructive dismissal.

Although the internal appeal later upheld some complaint-handling points and the office issue, the tribunal's own decision was that all claims failed. It therefore did not need to decide the discrimination time-limit issues or the fairness question under section 98(4) of the Employment Rights Act 1996.