Mr N Ali v Pennine Care NHS Foundation Trust — 2023

The claimant, who has a speech impediment, applied for a Subject Access Coordinator role with Pennine Care NHS Foundation Trust. The respondent conceded that he was disabled at the relevant times and that it knew of the disability. After offering him the role, the respondent withdrew the offer following the claimant's email asking whether it could support him by avoiding him using the phone in front of colleagues because of his speech impediment. The tribunal found that the decision was made without further discussion with the claimant about adjustments, without Occupational Health advice, and without giving the claimant an opportunity to discuss issues with an occupational health professional.

The direct disability discrimination complaint was dismissed. The tribunal found that the claimant had not proved facts from which it could conclude that withdrawing the job offer was less favourable treatment because of disability when compared with a hypothetical comparator who, for reasons other than disability, could not do all parts of the job without special arrangements. It also stated that, if the burden had shifted, it would have found the offer was withdrawn because the respondent considered the claimant could not do the job without adjustments it thought could not be accommodated and because it considered he had misled it, not because of the disability itself.

The discrimination arising from disability complaint was upheld. The tribunal found that withdrawal of the job offer was unfavourable treatment because of speech difficulties exacerbated when the claimant was obliged to speak in front of people he did not know well, which arose in consequence of his disability. It accepted the respondent's legitimate aim of employing someone to carry out the Subject Access Coordinator role in the specific environment and circumstances in which it operated, including mostly office-based work. However, it held that withdrawing the offer was not proportionate because the respondent could not reasonably conclude, without Occupational Health advice and discussion with the claimant, that he could not do the role with adjustments.

The reasonable adjustments complaint succeeded only in relation to the PCP that employees take calls in front of colleagues. The tribunal found that this PCP placed the claimant at a disadvantage and that the respondent knew of that disadvantage. It held that reasonable adjustments should have included a trial period, an enhanced induction or familiarisation process before telephone work, and enabling the claimant to work in another office if one was free. Other proposed adjustments, including removing or reducing telephone duties and full-time remote working, were not found to be reasonable. The complaints based on other alleged PCPs were dismissed because the tribunal found no relevant PCP or no sufficient element of repetition. Remedy was not determined in this judgment; a remedy hearing was listed for 11 July 2023.