IN PERSON FOR THE v Respondent — 2023

Dr Aaron Richards was employed as a Clinical Psychologist by Hywel Dda University Local Health Board from September 2017 and was dismissed on 14 October 2021 on capability grounds arising from long-term ill-health absence. The Tribunal accepted that he was disabled by reason of depression for the relevant periods, but held that he was not disabled by PTSD until September 2021. It also found that, on the evidence, the later PTSD diagnosis did not alter the outcome of the substantive claims.

A number of discrimination allegations were held out of time, including the direct discrimination, discrimination arising from disability, reasonable adjustments and parts of the harassment and victimisation claims. The Tribunal refused to extend time on just and equitable grounds and also rejected the argument that it was not reasonably practicable to present the whistleblowing claim in time. It nevertheless went on to consider the merits of the out-of-time allegations because the parties had fully argued them.

On the Band 8a issue, the Tribunal found that Mrs Evans had told the Claimant in March 2019 that he had met the re-banding requirements. It accepted that the Respondent later delayed implementing the upgrade, but found that this was due to managerial shortcomings, confusion about whether the criteria were met, and subsequent sickness absence, not because of disability. The Tribunal rejected the suggestion that the delay was direct discrimination or harassment.

The Tribunal also rejected the complaints about trainee supervision, the July 2019 dress code issue, the October 2019 text messages, and the June and July 2020 telephone calls and meeting. It found that the Respondent either had no obligation to act in the way alleged or had acted for reasons unrelated to disability, often in response to personal circumstances affecting Mrs Evans. The grievance process and appeal were found to be fair, the subject access request was dealt with properly albeit with delay, and the Industrial Injury Policy point failed because the alleged failure to proactively draw the policy to the Claimant's attention was not, in the Tribunal's view, a PCP and in any event caused him no disadvantage.

The dismissal claim failed because the Respondent showed that the reason for dismissal was capability arising from ill-health. The Tribunal found that the Claimant had been absent from work from 18 November 2019, had sought ill-health retirement, and had been told by occupational health that he was not fit to return to work for the foreseeable future. The Respondent waited for the grievance and industrial injury matters to conclude, consulted the Claimant, and acted within the range of reasonable responses. The Tribunal also rejected the protected disclosure claim, finding that the matters raised were private employment complaints rather than disclosures made in the public interest.