Ms R Cook v Cumbria, Northumberland, Tyne & Wear NHS Foundation Trust — 2021

Ms R Cook said the respondent failed to support her after she joined as a support worker and brought two Equality Act claims based on disability, which the respondent accepted it knew about from around November 2016. The section 20 claim concerned the July 2017 restructure and the requirement to attend a competitive interview, and the section 15 claim concerned the later use of the respondent's sickness absence policy. The tribunal noted that the claimant had a history of bipolar disorder, sickness absence, occupational health input, and later redeployment into a lower-banded role with pay protection.

On the section 20 claim, the tribunal held that the relevant act was the interview on 10 July 2017 and that the three-month time limit expired on 9 October 2017. It declined to extend time, relying on the length of the delay, the claimant's immediate knowledge of the relevant facts, her access to union advice, the fact that her grievance was not about the interview arrangements when first raised, and the prejudice that would arise from trying to reconstruct events several years later. In its alternative merits analysis, the tribunal found that the requirement to attend a competitive interview was not a PCP that put the claimant at a substantial disadvantage, that the respondent did not know she was allegedly unwell for disability-related reasons on the day, and that she did not ask for a further postponement even though two postponements had already been granted.

The tribunal also found that the claimant had in any event wanted to move away from the Alnwood unit on health grounds, and that occupational health had supported consideration of a move to less demanding work. On that basis, it concluded there was no actual disadvantage from the interview requirement and that an open-ended postponement would have been unreasonable. The section 20 claim was therefore treated as out of time and, alternatively, not well-founded.

On the section 15 claim, the tribunal accepted that the respondent's Attendance Management Policy amounted to unfavourable treatment because of something arising in consequence of the claimant's disability, namely the need for more time off due to bipolar disorder. It found that the respondent had legitimate aims: reducing sickness absence to maintain service delivery within financial constraints, managing absence consistently and fairly within timeframes, and providing support to improve attendance. The tribunal concluded that the way the Policy was applied was proportionate, relying on the evidence that managerial discretion was used, some absences were discounted, hours and working times were reduced, occupational health recommendations were followed, phased returns were arranged, and redeployment was pursued. The claimant accepted in cross-examination that the steps taken were fair and reasonable and identified no alternative adjustment that should have been made, so the section 15 claim was dismissed.