Mrs Charlotte Thorp v Kent Community Health NHS Foundation Trust Held at: London South Employment Tribunal by video — 2022

Mrs Thorp was employed by Kent Community Health NHS Foundation Trust as a Band 6 Health Visitor from April 2018. The Respondent accepted that hearing loss and POTS were disabilities. The tribunal found that the Claimant had a lengthy history of sickness absence, an employment break, occupational health referrals, and repeated meetings about returning to work with adjustments, including reduced hours, phased return arrangements, a quieter working area, and equipment to support hearing loss.

On the direct disability discrimination claim, the tribunal held that the relevant comparator was someone on long-term absence or returning from long-term absence with the Claimant’s abilities. It found that the pleaded acts were not shown to have been because of hearing loss or POTS. The tribunal found, among other things, that the Respondent did not refuse an occupational health referral or a return-to-work meeting in January 2021, that the request for a phased return was accommodated in part, that the later 19.5-hour proposal was withdrawn only after the Respondent confirmed the health visiting service could not support hours below 22.5, and that the grievance delay was due to operational pressures rather than disability. It also found that the alleged failure to allow homeworking, the move away from Sittingbourne, the delay in access to a professional nurse advocate, and the dismissal itself were not because of disability. The tribunal said that any discrimination complaints arising before 2 November 2022 were out of time and that it was not just and equitable to extend time.

On reasonable adjustments, the tribunal accepted that the Respondent knew of the disabilities and that it had PCPs requiring health visitors to work at least 22.5 hours and to undertake duty work. It found that the Claimant did not establish a substantial disadvantage from commuting in rush hour traffic, but did find that the noise in the main office and duty work caused auditory exhaustion and difficulty. The tribunal nevertheless held that the Respondent had already taken reasonable steps, including agreeing a quiet room, reduced hours to 22.5, flexible duty arrangements, a phased return, and a proposed three-month trial of half-day duty sessions. It held that reducing hours below 22.5 was not a reasonable adjustment because of the service’s operational requirements, and that redeployment flexibility and professional nurse advocate access would not have addressed the PCPs.

On unfair dismissal, the tribunal held that the Respondent dismissed the Claimant for ill-health capability under section 98 ERA 1996. It found that the Respondent had waited a considerable time, kept the situation under review, obtained repeated occupational health advice, made and revisited adjustments, and entered a 10-week redeployment period before dismissal when no suitable alternative employment was found. The tribunal held that the dismissal was within the range of reasonable responses and that the appeal did not change that conclusion. The Claimant’s unfair dismissal claim was therefore dismissed.