Mr K Smith v Princess Alexandra Hospital NHS Trust — 2023

The claimant originally presented claims including unfair dismissal, disability discrimination, and breach of confidentiality in relation to private health records. The tribunal recorded that he acknowledged it did not have jurisdiction to hear and determine the unfair dismissal claim, and the final hearing proceeded on direct disability discrimination, failure to make reasonable adjustments, and harassment related to disability. The respondent accepted that Scheuermann's disease, severe fibromyalgia and Pars defect were disabilities within the meaning of s.6 Equality Act 2010.

The tribunal found that the claimant had resigned from his Band 2 role after receiving a conditional offer for a full-time Band 3 Clerical Co-ordinator role, and that he was an applicant rather than an employee for the purposes of s.39(2)(d) EqA. It found he chose to resign without being coerced, although he did not appreciate the wider implications for continuity of service. After working Bank shifts, he emailed on 24 November 2021 saying his health meant he could not manage full-time hours and asking whether he could work part-time.

The direct disability discrimination claim succeeded on two allegations. First, Ms Jackson's email of 24 November 2021 said she would not want to commit to the claimant working for NHSP because he struggled with health problems and shifts might be cancelled at short notice. Applying Madarassy, the tribunal found that a hypothetical comparator without the claimant's disabilities, or a non-disabled person who could no longer work full-time, would have been treated more favourably, and that the claimant's disabilities significantly influenced that response. Secondly, Ms Myers' email of 29 November 2021 stated that the claimant's disability had not been taken into consideration in the advice given; the tribunal held that this omission was less favourable treatment because a comparator's relevant circumstances would have been set out when seeking HR advice.

The remaining direct disability discrimination allegations were dismissed. The tribunal found that Ms Tasker's statements that the role was full-time, her seeking HR advice, the refusal of part-time work under the flexible working policy, and the 25 November 2021 withdrawal of the offer did not amount to less favourable treatment because a comparator seeking to change an advertised full-time role to part-time would not have been treated differently.

The reasonable adjustments claim was dismissed. The tribunal identified a PCP requiring the Band 3 role to be full-time and accepted that this placed the claimant at a substantial disadvantage because he could not work long full-time shifts. It also accepted the claimant's evidence that the Occupational Health note, "fit with adjustments" and "applicate wishes to be part-time", amounted to a recommendation for part-time work. However, his doctor had certified him unfit for work from 26 November 2021 to 23 February 2022 and had not advised a phased return, altered hours, amended duties or workplace adaptations. Applying the trigger-point authorities including Home Office v Collins and Doran, the tribunal held that the duty to make reasonable adjustments was not triggered because there was no clear return-to-work date.