Claimant v East Cheshire NHS Trust — 2019

X began work in 2010 as a Band 7 clinical pharmacist. The tribunal reviewed a long sequence of performance, disciplinary and occupational health steps between 2014 and 2017, including NCAS involvement, a retraining period after the September 2015 disciplinary hearing, further paid leave, later management under the attendance policy and eventual dismissal on 26 October 2017. It held that the respondent did not have knowledge of Asperger's Syndrome at the time of the 18 September 2015 demotion/retraining decision, but did have knowledge of a mental impairment with interpersonal difficulties from the 2 October 2015 occupational health report, with later reports and the eventual ASD diagnosis confirming the position.

The direct disability discrimination claim about dismissal was dismissed. The tribunal found that the dismissal was not because of disability itself or because the respondent perceived the claimant to have characteristics she did not have; rather, the decision was based on impairments and communication difficulties associated with her condition. The section 15 complaint about demotion to Band 5 and retraining also failed because the respondent lacked the necessary knowledge at the time, although the tribunal said that, if knowledge had been established, the retraining and Band 5 arrangement would have been proportionate to the legitimate aim of patient safety.

The tribunal upheld the section 15 complaints about involuntary paid authorised leave from 26 October 2015 to February 2016 and from 4 July 2016 to 26 October 2017. It found that the claimant was placed on leave because she was stressed, and that some of that stress arose from disability-linked matters such as dress code issues, personal email use and behavioural norms. Although patient safety was accepted as a legitimate aim, the tribunal held that leave was not a proportionate response because the underlying conduct had not been serious enough to justify suspension and the leave risked reducing the claimant's opportunity to practise and improve.

The tribunal rejected the section 15 complaint about returning the case to the disciplinary panel after the alleged 17 May 2016 dispensing-log error, finding there was a genuine safety concern about a major error. It rejected the first and second reasonable-adjustments complaints about the supervised retraining programme and the NCAS Practitioner Action Plan, but upheld the complaint about the Behaviour Impact and Action Agreement. The tribunal found that agreement placed the claimant at a substantial disadvantage because of her communication and behavioural difficulties, and that a reasonable adjustment would have been not to impose it at that stage and not to criticise her for minor errors or behaviour that did not affect patient safety.

On dismissal, the tribunal held that the respondent had not properly analysed what adjustments were needed, had set too high a standard by expecting guaranteed success, had not followed its own attendance policy, and had not sought National Autistic Society input despite occupational health advice. Those defects also meant the dismissal was not a proportionate means of achieving patient safety. For unfair dismissal, capability was a potentially fair reason, but the decision was not based on reasonable grounds and fell outside the band of reasonable responses. Remedy was left to a later hearing.