Ms N Gray v Surrey and Borders Partnership NHS Foundation Trust — 2024

Ms N Gray had worked for Surrey & Borders Partnership NHS Foundation Trust for 28 years and was accepted to have been disabled by breast cancer, which the respondent knew about. Her claims arose from the period when she was shielding during the Covid-19 pandemic, later sickness absence, the return of Violence Reduction training to face-to-face delivery, redeployment discussions, absence management meetings, and the handling of her grievance. The tribunal heard claims for constructive unfair dismissal, direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment related to disability, and victimisation.

The constructive dismissal claim failed because the tribunal did not accept that the respondent's conduct, taken individually or cumulatively, amounted to a repudiatory breach of contract or a breach of the implied term of trust and confidence. It found that comments about face-to-face training, the need for cover, and the pressures on the team were tied to the operational return to in-person training and the lack of sufficient home-based work, not to a fundamental breach. The tribunal also found that the claimant resigned because she did not want to engage with the redeployment process that was being explored, rather than in acceptance of a contractual breach. The tribunal therefore rejected the claim under the principles in Western Excavating, Malik, Lewis, Omilaju, Kaur, and the related authorities it cited.

The disability discrimination complaints also failed. For direct discrimination, the tribunal rejected the allegation that the claimant was treated less favourably by not being encouraged to apply for the band 7 role, and it found no evidence that any different treatment was because of disability. For discrimination arising from disability, the tribunal found that the remaining complaints did not arise because of the claimant's sickness absence; in relation to the compassionate leave point and redeployment discussions, the absence link was not made out, and the respondent's stated aim of maintaining an effective and fully functioning workforce was accepted as legitimate. The tribunal applied sections 13 and 15 of the Equality Act 2010, together with the burden-of-proof and justification principles it cited.

The reasonable adjustments claim failed because, although the tribunal accepted that the requirement to physically demonstrate VR interventions was a PCP and that it would have placed the claimant at a substantial disadvantage if applied, it found that the respondent had in practice disapplied that PCP during the material period by allowing her to work from home. The harassment claim failed because the conduct relied on did not satisfy the section 26 purpose or effect threshold, including the context of the email comments, diary meetings, and grievance correspondence. The victimisation claim failed because the tribunal found that the respondent was not dismissive of the grievance, attempted to progress it when the claimant re-opened it, and did not subject her to a detriment because she had done the protected act. The tribunal dismissed all complaints and noted that most of the discrimination and victimisation allegations were in any event significantly out of time, though it did not need to determine that point further because none of the claims succeeded.