Mr M Brien (counsel) For the v Respondent — 2020

Mrs Bates was a senior nurse and deputy director at Hull University Teaching Hospitals NHS Trust. The tribunal accepted that she had a long-standing disability consisting of depression and anxiety with PTSD symptoms, and that alcohol use had at times been a maladaptive coping mechanism secondary to that disability. The case concerned missed Director on-call duties on 30 December 2017, 23/24 February 2018 and 18/19 December 2018, the way those events were investigated, and whether the later disciplinary process and dismissal were fair and lawful.

On the disability discrimination claim under s.15 Equality Act 2010, the tribunal accepted that the dismissal was unfavourable treatment because of something arising in consequence of disability, namely the claimant's inability to work during a mental health crisis and related maladaptive coping. It nevertheless held that dismissal was a proportionate means of achieving the legitimate aim of ensuring the health, welfare and safety of the claimant, patients and staff. The tribunal relied on the importance of the Director on-call role, the risks created by failing to attend it, the earlier similar incidents, and the claimant's failure to alert the Trust to her deteriorating state or take steps to remove herself from the rota or otherwise mitigate the risk.

The tribunal rejected the other pleaded discrimination complaints. It found there was no separate decision to go behind the reflective learning statement for the earlier incidents, no decision to classify the February 2018 medication issue as alcohol-related absenteeism, no disciplining of the claimant for the earlier incidents themselves, and no improper attempt to introduce unnotified allegations to justify dismissal. It held that the investigation was entitled to consider whether there was a pattern of behaviour and whether there were wider implications for colleagues and the Trust, and it found the complaint was brought in time as part of one continuing process. The tribunal also found that the materials repeatedly recognised that the claimant had mental health issues and used alcohol as a maladaptive coping strategy, so there was no attempt to portray her as alcohol dependent.

On unfair dismissal, the tribunal held that the real reason for dismissal was conduct, not the some other substantial reason wording used in the dismissal letter to preserve pay in lieu of notice. Applying s.98 ERA 1996 and the Burchell approach, it found that the Trust held a genuine belief in gross misconduct on reasonable grounds after a reasonable investigation, and that the disciplinary hearing and appeal process were fair. It held that the claimant had a proper opportunity to answer the allegations, that the panel was entitled to rely on patient-safety concerns and the pattern of missed on-call duties, and that dismissal was within the range of reasonable responses. Both claims were therefore dismissed and no monetary award was made.