Claimant v North Cumbria Integrated Care NHS Foundation Trust — 2021

The claimant worked as a Clinical Psychologist in the respondent's Acquired Brain Injury service from November 2013. The tribunal accepted that the respondent conceded disability from 15 April 2016 onwards, and it recorded that the claimant was treated very badly when inducted into the team in 2013 and early 2014. The respondent later apologised for not promoting a supportive working environment when she joined the ABI team.

The tribunal found that the claimant was dismissed on 23 May 2017, with dismissal effective on 14 August 2017, because of capability assessed by reference to health under section 98(2)(a) ERA 1996. It accepted that she had not worked in her substantive ABI role since April 2014, save for a short and unsuccessful phased return in 2016. The occupational health reports relied on by the respondent, especially the reports of 25 July 2016 and 8 May 2017, said she could not return to the ABI team and that doing so would make her ill, without caveats.

On unfair dismissal, the tribunal held that Mr Raimbault made his own decision after a lengthy process of meetings and review, and that the respondent acted reasonably in all the circumstances. It found that the fast-track stage four process was not used in the way the claimant suggested, although the respondent did not comply with the policy wording requiring the reasons for fast-tracking to be given in writing before the stage four meeting was arranged. That procedural omission did not make the dismissal unfair, because the claimant had been consulted, her views were considered, and the tribunal accepted the respondent's evidence that the ABI service required a psychologist who was embedded in the team and able to work collaboratively.

The tribunal rejected the claim that the claimant unreasonably refused to return to work, so the some other substantial reason alternative failed. It also found that the claimant's proposal to liaise only through the team leader and at team meetings would undermine the interdisciplinary model used by the ABI service. On alternative employment, it accepted that there were no suitable funded vacancies at the relevant time, and that one psychology vacancy was too early while the maternity cover role arose too late.

The reasonable adjustments claim under sections 20 and 21 EqA failed. The tribunal found that the respondent had already made the adjustment of allowing the claimant to work in a separate room in the same building, but it was not required to move her to a separate location entirely. It held that mediation had been attempted through an external mediator, and that discounting disability-related absence or not using the fast-track procedure would not have addressed the claimant's disadvantage. The section 15 claim also failed: the tribunal found the April 2016 statement was not made as alleged, the May 2016 supervision discussion was not unfavourable treatment, and although dismissal was unfavourable treatment arising from disability, it was a proportionate means of achieving the legitimate aim of maintaining an integrated ABI service for vulnerable patients. No monetary award was made because all claims were dismissed.