Mrs S D’Silva v Croydon Health Services — 2021

Mrs S D’Silva had disability-related stress and anxiety. After returning to work in February 2017, she was placed in a band 2 Patient Pathway Support role in Croydon Health Services’ chest clinic. The tribunal found that the role required patient-facing reception work at the front desk, but that the claimant was initially allowed to do a back-office adjustment while she returned from long-term sickness absence. Occupational health later said she was not fit to resume front-desk work, and by January 2018 the respondent and the claimant had moved to considering redeployment.

On the reasonable-adjustments claim, the tribunal held that the respondent failed to take reasonable steps under s20 Equality Act 2010. It found that the employer treated the claimant as responsible for finding alternative work, rather than identifying and discussing suitable vacancies itself. The tribunal accepted that there were suitable non-patient-facing administrative roles available, including roles identified later from the vacancy list at pages 473A-G and other roles in the wider PODs, and that moving the claimant into one of them would have been a reasonable adjustment. The tribunal also found that the respondent did not properly consider whether the claimant could be kept in adjusted back-office work while redeployment was pursued.

The unfair-dismissal claim succeeded on capability. Applying s98 ERA 1996 and the range of reasonable responses test, the tribunal found the dismissal unreasonable because the respondent did not properly investigate or pursue suitable redeployment, and because it used the claimant’s failure to apply for vacancies against her when the employer had not identified them to her in any meaningful way. The tribunal also found that the claimant’s earlier sickness absence had been treated too harshly, including the issue of warnings after she had returned from long-term absence and had not in fact had further absence in the relevant period. The tribunal concluded that, had a fair procedure been followed and redeployment been properly considered, the claimant probably would have remained in work in a suitable vacancy.

The harassment and victimisation claims were dismissed. The tribunal accepted that the claimant’s earlier employment tribunal claim was a protected act for victimisation purposes, but it did not find that the refusal to keep her in the back-office adjustment, the insistence that her substantive role was patient-facing, or the dismissal were because of that protected act. It also held that those matters did not satisfy the statutory test for harassment under s26 Equality Act 2010. Liability was therefore found only for failure to make reasonable adjustments and unfair dismissal, and the case was listed for a remedy hearing.