Ms D Hale v Cheshire & Wirral Partnership NHS Foundation Trust — 2024

Ms D Hale was employed from 2 January 2018 as a Band 7 Clinical Nurse Specialist in the respondent's Adult ADHD service. The tribunal found that she was disabled by reason of hearing loss and a previous cancer diagnosis. It rejected her case that she had disclosed those matters at the start of employment, preferred the respondent's evidence that no disability had been declared pre-employment, and treated the later-produced documents C2 and C4 as having dubious provenance. The tribunal found that the respondent knew generally of a past cancer diagnosis by 5 March 2018, but not of ongoing treatment, and first became aware of the hearing loss at a supervision meeting on 2 July 2018.

The direct discrimination allegations were all dismissed. The tribunal found that the ADHD team hot-desked, had shared access to desks, computers and phones, and that the claimant was not singled out in relation to workstations, prescribing registration, team meetings, induction, appraisal, or training. It also found that workload and clinic allocation were driven by geography, timing and service pressures rather than by any targeting of the claimant. On the pleaded allegation that she was given harder referrals or blocked from cancelling appointments, the tribunal found the evidence did not show differential treatment and, where problems arose, they were part of a wider team issue rather than discrimination because of disability.

The harassment claim failed for the same factual reasons. The tribunal held that the conduct alleged was not proved as pleaded and, in any event, there was nothing showing that Ms Massey's conduct was related to disability in the sense required by section 26. The reasonable adjustments claim also failed. The tribunal accepted that the open-plan office, duty phone use and note-taking could amount to PCPs and that the hearing loss could create disadvantage in noisy conditions, but it held that the respondent did not know, and could not reasonably have been expected to know, the extent of any substantial disadvantage until the Occupational Health report was disclosed in October 2018. By then the claimant had already been removed from clinical practice. The tribunal also found that the respondent had already provided quieter working options in Dr Mason's office, as well as a mobile phone, laptops and dictation software, and that the claimant told managers on 2 July 2018 that she was not having problems on the phone.

The victimisation claim failed because the protected acts relied on were the ET1s presented in March and June 2019, while the main alleged detriments occurred in 2018 before those claims were brought. For the later matters, including the disciplinary process, the tribunal found that the respondent had independent reasons grounded in clinical-record concerns and patient safety, and that the hearing in the claimant's absence was not caused by the ET1s. The disciplinary outcome letter recorded gross misconduct concerns but Ms Walsh said she would have issued a final written warning and down banding rather than dismissal. The tribunal also upheld the decision to refer the claimant to the NMC, finding it was based on the disciplinary findings and the respondent's duty of care rather than on the claimant's tribunal claims. The constructive unfair dismissal/discriminatory dismissal claim failed because the tribunal found no fundamental breach of contract, no discriminatory basis for resignation, and no ordinary unfair dismissal claim in light of the claimant's under-two-years' service.