Mr D Chow v NHS Cheshire and Merseyside Integrated Care Board (Amended from NHS Halton Clinical Commissioning Group) — 2023

The claimant, Mr D Chow, worked for the respondent from 1 August 2012 and the respondent accepted that he had dyslexia and knew of it during the relevant period. The tribunal recorded a series of Access to Work assessments and workplace adjustments, including software, hardware, training, a quieter desk, reduced workload and later a support worker. It found that the respondent had implemented the earlier recommendations and that the claimant received substantial support with report writing and related tasks.

The reasonable adjustments and indirect disability discrimination claims failed because the tribunal did not accept that the respondent applied the pleaded PCP of requiring the claimant to write reports like other team members. It found the claimant had access to templates and flexibility in how reports were produced, and that there was insufficient evidence that any such PCP was imposed. As the PCP was not established, both disability discrimination claims were dismissed.

The harassment claim related to race concerned a conversation with Dr Davies on 6 February 2019 and a staff stand-up meeting chaired by Ms Thompson on 10 February 2020. The tribunal found it more likely than not that the specific racist comments alleged against Dr Davies were not said. It found that Ms Thompson's meeting was used for myth-busting about coronavirus, including that there was no evidence linking the virus to Chinese people or Chinese food, and that the claimant had not shown the conduct was unwanted conduct with the required effect.

The victimisation claim was based on a protected act in November 2018, but the tribunal rejected the pleaded detriments. It found the 2 December 2019 issue about Dragon software training arose because the trainer was ill, not because of the grievance; the disciplinary investigation and later enquiries into social media and holiday photographs were not shown to have been caused by the grievance; and the 2021 disciplinary outcome was not a detriment because the misconduct allegations were dropped and the claimant regarded that as a positive result.

The whistleblowing complaint failed because the tribunal found the 1 February 2021 email attachment was not a qualifying disclosure under s.43B ERA 1996. On the claimant's own evidence, he did not believe he was exposing a criminal offence, but rather conduct he considered morally or socially wrong. Even if that had been wrong, the tribunal found the pleaded detriments were not proved: he was not invited to meet the investigation officer because he had no further context to add, the terms of reference were acceptable, and feedback came from Mr Merrill as the decision-maker.

The constructive dismissal claim also failed. The tribunal applied the constructive dismissal principles in Western Excavating v Sharp, Malik v Bank of Credit and London Borough of Waltham Forest v Omilaju, and found no fundamental breach of contract by the respondent. It found that the claimant resigned on 27 April 2021 after securing new employment with Liverpool Women's Hospital, and that his resignation was not caused by respondent conduct. All claims were dismissed and no monetary award was made.