Mrs A Baker v Newcastle upon Tyne NHS Foundation Trust — 2020

Mrs A Baker brought constructive unfair dismissal and disability discrimination claims arising from the respondent Trust's capability process, stress risk assessments, and grievance investigation between 2017 and 2018. The tribunal found that the respondent had genuine performance concerns, that it gave the claimant support through reviews, action plans, Occupational Health referrals and adjustments, and that the claimant had accepted before she left that she had another job to go to on 6 August 2018.

On unfair dismissal, the tribunal held that the claimant was not dismissed within section 95(1)(c) Employment Rights Act 1996. It found that the capability process did not amount to conduct calculated or likely to destroy trust and confidence, that the respondent had reasonable and proper cause for the steps it took, and that the claimant's resignation was not caused by a repudiatory breach. The tribunal rejected the alleged later trigger based on the 26 July 2018 grievance meeting, found that the claimant had already said on 6 July that she intended to resign because of her new job, and held that the delay in confirming her permanent post in writing was undesirable but not enough, alone or cumulatively, to amount to constructive dismissal.

On disability status, the tribunal held that the claimant was not a disabled person within section 6 Equality Act 2010 at the relevant time. It accepted that she had some mental health difficulties, but the evidence did not establish a long-term mental impairment with a substantial adverse effect on normal day-to-day activities. The tribunal noted the GP record suggested a short period of poor mental health in 2016 lasting less than 12 weeks, there was no formal diagnosis of GAD supported by the evidence before it, and the claimant's witness evidence did not show a sufficient long-term effect.

Because disability was not established, the discrimination claims failed. The tribunal also stated that, if the claimant had been disabled, it would not have upheld either the section 20-21 reasonable adjustments claim or the section 15 claim. It found the Occupational Health recommendations had been implemented, that the claimant accepted many of the steps taken by the respondent, and that the capability process was pursued for legitimate operational and employee-wellbeing aims in a proportionate way. It also noted that claims relating to events before 29 July 2018 would likely have faced time-limit issues, and it saw no basis on the evidence to extend time.