Miss F Zhang v Imperial College Healthcare NHS Trust — 2022

The claimant, Miss F Zhang, was employed by Imperial College Healthcare NHS Trust from 21 June 2004 until 23 July 2021 and brought complaints of disability discrimination, harassment, victimisation and unfair constructive dismissal. The respondent accepted that she was disabled by anxiety and depression from 12 December 2019, but disputed knowledge before 22 January 2021. The tribunal found constructive knowledge from mid-October 2020, after the claimant's October 2020 fit note referred to mixed anxiety and depressive disorder and after she appealed the grievance outcome, but found no actual or constructive knowledge before then.

The direct disability discrimination, discrimination arising from disability, harassment and reasonable adjustment allegations based on events before mid-October 2020 failed in whole or in part because the respondent did not have the required knowledge of disability at the relevant time. The tribunal also made factual findings rejecting several pleaded allegations: it found that Chris Jones did not threaten dismissal on 19 March 2020, that Khaleda Hussain did not threaten via the union representative to withhold occupational sick pay on 13 May 2020, that Mia Oliver did not threaten dismissal at the 31 July 2020 meeting, and that Helen Watts did not repeatedly accuse the claimant of refusing to sign the redeployment form on 18 May 2021.

The indirect discrimination claim failed. The tribunal found that the Disability Guidance/Policy did not put persons sharing the claimant's disability, or the claimant herself, at the pleaded comparative disadvantage of demotion. It also found that the respondent did not have the pleaded PCP of withholding occupational sick pay if an employee failed to attend a sickness review meeting, and did not have the pleaded PCP of failing to postpone sickness review meetings when an employee was unwell and unable to attend. The failure to make reasonable adjustments claim also failed: the tribunal found no substantial disadvantage from the Disability Guidance/Policy, and found that earlier alleged PCPs either were too narrowly framed, did not engage the duty because of lack of knowledge, or were not applied.

The harassment complaint failed. The tribunal found that several alleged acts had not occurred as pleaded, and where it found unwanted conduct, including the false assertion that bank shifts had been requested and the delay or edits in grievance materials, it found the conduct was not related to disability and occurred before the respondent had knowledge of disability. The allegation that grievance investigators took negative comments at face value or failed to collect substantial evidence was not made out, and the tribunal found that the 18 May 2021 redeployment discussion did not involve the accusation alleged.

The victimisation complaint failed because the tribunal found the 18 May 2020 grievance was not a protected act: although it referred to bullying, harassment and victimisation, it did not allege a contravention of the Equality Act 2010 or link the conduct to disability or a previous discrimination complaint. The tribunal added that, even if it had been a protected act, the alleged treatment was not because of the grievance; it accepted non-discriminatory reasons for the sickness absence management steps and found that Mia Oliver was explaining the redeployment process and possible outcomes.