Mr. P Powell v Guy’s and St Thomas’s NHS Foundation Trust — 2021

The claimant was employed from 17 October 2016 as an orthotics administrator in a full-time role. The tribunal accepted that he suffered from atopic eczema, that the condition caused extreme discomfort and fatigue, and that occupational health on 29 August 2019 identified him as likely disabled within the meaning of the Equality Act and suggested consideration of adjusted or reduced hours. The tribunal also found the department was busy and that workload increased as the service became more efficient, but that no additional substantive administration posts were created.

On the section 15 claim, the tribunal held that the 8 November 2019 informal capability meeting and the continuing informal monitoring were unfavourable treatment, particularly because the monitoring continued beyond 20 December 2019 without justification and could have led to a formal process. However, it found the reason for starting the process was Ms Draper’s response to senior managers’ instruction that she be more proactive, not something arising in consequence of the claimant’s disability. The section 15 claim therefore failed, and the tribunal did not need to decide the proportionality issue in relation to the respondent’s stated legitimate aims.

On reasonable adjustments, the tribunal accepted that requiring orthotics administrators to work their contractual full-time hours placed the claimant at a substantial disadvantage because of his disability. It found, however, that the respondent had already made reasonable adjustments by allowing a four-day week after the occupational health report and then granting a three-day week trial after the appeal. When the department later concluded on 2 April 2020 that the claimant could not continue part-time in his own post, the tribunal held it was reasonable to look for redeployment to other permanent part-time roles at similar pay and skill level rather than create a new permanent part-time post in the department.

On victimisation, the tribunal accepted that the claimant did five protected acts between 10 May 2019 and 7 January 2020. It found that the 8 November 2019 capability process, Ms Falade’s decision not to stop it at the January 2020 meeting, and the 2 April 2020 redeployment decision were not because of those protected acts. The tribunal found Ms Draper had been instructed to begin the capability process and that Ms Falade genuinely believed it was a supportive process; it also found the redeployment decision flowed from pressure of work and the inability to sustain the claimant’s part-time arrangement in his home department. All complaints were dismissed and no remedy was awarded.