Miss L Dench v Barking, Havering and Redbridge University Hospitals NHS Trust — 2024

The Tribunal found that the respondent did not directly discriminate against the claimant, did not discriminate arising from disability, and did not fail to make reasonable adjustments. It found that the respondent did not tell the claimant that colleagues were unhappy with her, did not invite her to resign, and did not tell her she should take ill-health retirement. The Tribunal found that ill-health retirement was merely raised as an option to explore under the sickness absence procedure, and that occupational health advice was obtained once the respondent became aware of the claimant's mental health difficulties on 17 January 2022.

On reasonable adjustments, the Tribunal found the respondent did not know, and could not reasonably have been expected to know, that the claimant was disabled for Equality Act purposes before 17 January 2022, and had knowledge of anxiety as a disability by the 7 February 2022 occupational health report. It found the delayed return-to-work meeting before 17 January 2022 did not found liability under the Equality Act, and that occupational health's decision not to provide psychotherapy was a reasonable clinical decision because of the claimant's deterioration, crisis team involvement, and later diagnosis of EUPD and PTSD requiring specialist treatment.

On harassment, all allegations failed overall. The Tribunal unanimously rejected the allegations that the respondent said colleagues were unhappy with the claimant or suggested resignation or ill-health retirement. By majority, it held that the statement on 12 July 2022 that the claimant's absence was affecting the service was a neutral factual explanation for moving to a stage 3 absence meeting and did not have the prohibited effect required for harassment, although the minority member would have found that allegation proved. The Tribunal also allowed the claimant to amend to pursue unfair dismissal, but held there was no fundamental breach of contract, no constructive dismissal, and therefore no unfair dismissal.