Ms Sheila Moorcroft v SHC Clemsfold Group Limited — 2021

Ms Sheila Moorcroft was a registered nurse employed by SHC Clemsfold Group Limited from 15 March 2010 until 8 July 2019. The tribunal accepted that she was disabled by reason of breast cancer and also accepted that the respondent had actual or constructive knowledge of her anxiety and depression. It found that, after a long sickness absence, she returned in 2018 on reduced hours as a reasonable adjustment: two non-consecutive night shifts at Boldings Lodge rather than three nights, together with a phased return.

The tribunal found that the first disciplinary process in August and September 2018 was flawed because the statutory nursing log was not consulted, and that the later disciplinary process in early 2019 also involved serious problems of comparison and attribution, including the treatment of other nurses. Ms Moorcroft was demoted to care assistant on 22 February 2019 and appealed unsuccessfully, then raised a grievance on 16 May 2019. That grievance was refused on 23 May 2019. A letter dated 5 June 2019 then recast a wellbeing or sickness review into a stage 2 and stage 3 capability process and threatened a stage 3 hearing if she did not return by 8 July 2019.

On 26 June 2019 the respondent offered reinstatement as a nurse only if she moved from Boldings Lodge to The Laurels, a more distant home, on a supervised day-shift plan. The tribunal found there was no proper consultation and no proper consideration of the earlier Boldings adjustment or of her concerns about the proposed move, her GP's views and the occupational health report. It held that the insistence on the transfer, together with the earlier disciplinary flaws and the refusal to revisit the grievance and medical evidence, was a repudiatory breach of the implied term of trust and confidence. Ms Moorcroft resigned on 7 July 2019 with effect from 8 July 2019 in response to that breach, so the constructive dismissal claim succeeded and the dismissal was unfair under s.98(4) ERA 1996. The wrongful dismissal claim also succeeded, with notice pay due, but no figure was fixed because remedy was listed for 12 July 2021.

The tribunal upheld the s.15 Equality Act 2010 claim for discrimination arising from disability. It found that the retrospective application of sickness or capability stages, the transfer decision, and the refusal to reconsider the GP and occupational health evidence were unfavourable treatment because of something arising from disability, identified by the tribunal as her prolonged absence and her unwillingness to move to a different care home. It also upheld the claim for failure to make reasonable adjustments, holding that the arrangement for her to work at Boldings Lodge on reduced night shifts was a reasonable adjustment and should not have been withdrawn.

The harassment claim related to disability was upheld on the basis of the same cluster of conduct, which the tribunal found was unwanted and had the effect of violating dignity or creating an intimidating, humiliating or degrading environment. Direct disability discrimination, indirect disability discrimination and victimisation were dismissed. The tribunal said it could not infer that the relevant treatment was because of disability for the s.13 claim, held that the indirect discrimination case did not properly identify the relevant group or prove the group disadvantage case, and found no causal link to the protected acts relied on. It also held that the claims were in time under the Equality Act time-limit provisions, with the early conciliation period extending limitation.