Miss K Clark v Kent and Medway NHS and Social Care Partnership Trust — 2019

Miss K Clark was employed as a Band 5 Area Administration Manager from 24 January 2011 and was dismissed for redundancy on 28 October 2016. For the discrimination issues, the tribunal proceeded on the basis that her spinal condition, and for the purposes of the hearing her mental health condition, were disabilities. The pregnancy discrimination and direct sex discrimination claims were withdrawn, and the remaining disability claims were determined under sections 13, 15 and 20 of the Equality Act 2010.

The section 13 direct discrimination claim succeeded only in one respect. The tribunal found that the Respondent discriminated when it refused to interview the Claimant for the band 6 post after she met the minimum requirements, which the tribunal said should have led to an automatic interview for a disabled person. The other direct discrimination allegations about absence management, medication, treatment, time off in lieu, the time sheet, the charity event complaint and the grievance appeal were rejected, with several treated as out of time and others found to have an explanation unrelated to disability.

The section 15 claim failed. The tribunal did not accept that the challenged matters, including delays in return-to-work interviews, moving absence management onto a formal footing, issuing the first written warning, or the handling of the grievance, amounted to unfavourable treatment because of something arising in consequence of disability. It also found that the Respondent’s attendance-management approach was directed to the legitimate aim of encouraging regular attendance and was proportionate.

The reasonable adjustments claim also failed. The tribunal found no proved PCP requiring all work to be done at the workplace and said that, in any event, that part of the case was out of time. On the workstation issue, the Claimant did obtain the specialist chair, desk and monitor arm, and the tribunal was not satisfied that the delays caused by assessment and ordering amounted to a failure to take reasonable steps. On unfair dismissal, the tribunal accepted that there was a genuine redundancy situation because the requirement for band 5 work had reduced, and it found the consultation and interview process fair, but held that the Respondent had not taken reasonable steps to find alternative employment or otherwise avoid redundancy, including in the redeployment process. No monetary award is stated in this decision; the reasons record that remedy was to be dealt with separately.