Ms AB v An NHS Foundation Trust — 2020

Ms AB, a community midwife, brought claims of unlawful deduction of wages and disability discrimination, including discrimination arising from disability, failure to make reasonable adjustments and disability-related harassment. The respondent conceded that she was disabled at the relevant time by reason of mental impairments and accepted constructive knowledge. The tribunal extended time under section 123 Equality Act 2010 as just and equitable for events before 13 November 2017, taking account of the grievance process, the claimant's illness, and the timing of her ACAS conciliation and tribunal claim.

The tribunal found that the claimant's sickness absences in November 2015, January 2016, April 2016 and September 2016 were sufficiently connected to her disability, because the records and return-to-work documentation linked them to stress, anxiety, adrenal fatigue and related symptoms. It did not treat attendance monitoring by itself as unfavourable treatment, but it held that the 20 September 2016 conversation in which Team Leader 1 said the claimant had "triggered a formal" left her with the impression that a warning had been given outside the proper process, and that the 6 December 2016 stage 1 warning was unfavourable treatment contrary to the Trust's policy on disability-related absence.

On reasonable adjustments, the tribunal found that the respondent had previously allowed the claimant to start work from home and attend the office on quieter days, and that removing that adjustment between August and December 2016 caused increased anxiety and panic attacks. It rejected the separate complaint about a full workload because the wording in the 7 December 2016 letter was understood to mean an extra visit for a comparable workload, not a heavier one. On her return in 2017, Occupational Health advised that she should avoid long days and on-call shifts for three months, but the tribunal found the respondent only partly implemented that advice, leaving some long days and on-call shifts on the rota and requiring repeated correction.

The tribunal also held that the requirement to proceed with the stage 1 meeting on 26 February 2018, after the claimant had asked for a short postponement and reported panic attacks about leaving the house, was a failure to make reasonable adjustments. It found that she was substantially disadvantaged by being required to deal with the meeting in the way the respondent chose, even though Occupational Health had said she might need to leave if distressed and a further review was imminent.

The harassment claim succeeded in relation to the late July/early August 2016 comment that other team members were "pissed off" about working from home and the linked removal of the adjustment, the 11 October 2016 remark that she was being "too sensitive", and the decision to press ahead with the February 2018 meeting in her absence. The tribunal rejected several other alleged comments and incidents as not proved. The unlawful deduction of wages complaint was withdrawn during the hearing and dismissed on that basis. Liability was determined only; the case was listed for a separate remedy hearing.