Ms S Barnes v Central London Community Healthcare NHS Trust — 2023

Ms S Barnes brought claims of unfair dismissal, discrimination arising from disability, direct disability discrimination, disability-related harassment and failure to make reasonable adjustments against Central London Community Healthcare NHS Trust. The tribunal held that only the unfair dismissal and s.15 claims were in time. It found the direct discrimination, harassment and reasonable-adjustment claims were almost all outside the primary time limit, refused to extend time on a just and equitable basis, and rejected the argument that they formed a continuing act. No remedy was determined in this liability judgment.

On knowledge, the tribunal accepted that the claimant was disabled by depression at all material times, but found the respondent did not know and could not reasonably have been expected to know of that disability until 6 January 2021, when Ms Stewart received the claimant's email saying her GP thought she had depression. The tribunal found the earlier absence coding was unreliable and that the respondent understood the 2019 absence as bereavement-related rather than as depression. It therefore said the pre-2021 harassment, direct discrimination and reasonable-adjustment allegations would have failed in any event for lack of knowledge.

The tribunal rejected the harassment and reasonable-adjustment complaints on the merits. It found the 2019 occupational health referrals were made to support the claimant and were not unwanted conduct. It found there was no PCP requiring repeated telephone contact rather than email, that the claimant did not in fact request to work from home in January 2021, and that the refusals of unpaid and annual leave were based on service need during the COVID-19 crisis rather than disability. It also held that the September 2021 career-break discussion was an offer, not less favourable treatment.

The unfair dismissal claim failed because the respondent dismissed for capability based on ill-health. The tribunal accepted the trust genuinely believed there was no prospect of a sustained return to work, had reasonable grounds for that belief, and carried out a lengthy and reasonable process that included occupational health input, five formal sickness review meetings, consideration of redeployment, and an offer of a six-month career break. The dismissal was held to fall within the range of reasonable responses. The s.15 claim was dismissed because, although the dismissal was unfavourable treatment arising from disability-related absence, the respondent showed it was a proportionate means of achieving the legitimate aims of operational effectiveness, fair workload distribution, and efficiency at proportionate cost.