Mrs L Protheroe v Cwm Taf Morgannwg University Local Health Board — 2023

Mrs L Protheroe was reinstated under a COT3 after earlier tribunal proceedings, and the tribunal found that at the material time part of her disability included anxiety and depression. The respondent knew of that impairment from the earlier medical history, the previous claim and the return-to-work discussions. The tribunal also recorded that the claimant had other admitted disabilities, including autoimmune thyroid disease, autoimmune hepatitis, fibromyalgia and osteoporosis.

The tribunal accepted that there were administrative and management failings after reinstatement. It found a delay in arranging occupational health input, problems in getting the expense account working, difficulty tracing the claimant's personnel file, and a grievance process that was not handled to the standard required by the All Wales Grievance Policy. It also found that the claimant and her managers had different understandings about base, line management and caseload arrangements, but rejected the claimant's case that she had been promised a fixed Flying Start caseload of 66 or that she was in fact being required to do a full-time workload.

On the constructive unfair dismissal claim, the tribunal held that the cumulative failings were capable of amounting to a fundamental breach of the implied term of trust and confidence. However, it found that the claimant did not resign in response to that breach because she had affirmed the contract before resigning. After the stage 3 grievance outcome of 18 February 2022 she continued to engage with sick pay, annual leave and grievance-related correspondence, and the tribunal held that by the time she resigned on 6 October 2022 the contract had been affirmed. The constructive unfair dismissal complaint was therefore dismissed.

The section 15 discrimination arising from disability claim was dismissed because the tribunal found that the complained-of treatment was not because of something arising in consequence of disability, or was not unfavourable treatment in the first place. It found that the delay in occupational health referral, the problems with the personnel file and the expenses account, and the grievance difficulties were explained by human error, technical problems, Covid disruption and misunderstandings rather than disability-related treatment. Where the claimant relied on caseload and travel/base issues, the tribunal found that her workload had in practice been adjusted and that she was not overloaded.

The reasonable adjustments claim was dismissed because the tribunal found that the pleaded PCPs either were not applied in the way alleged or did not place the claimant at a substantial disadvantage. The tribunal held that the claimant's workload, hours and day-to-day duties were managed, that the notional caseload number against her name did not reflect the work she personally had to do, and that the claimed expense and mileage problems were not the result of a failure to make adjustments as pleaded. The victimisation claim was also dismissed because the tribunal found no evidence that the relevant delays or decisions were motivated by the claimant's protected acts. The judgment ended with an observation that a single point of contact for a reinstated employee might have helped in a case of this kind.