Miss M Lietor v Barts Health NHS Trust — 2022

The claimant was employed as an Emergency Staff Nurse at the respondent's Royal London Hospital. The respondent accepted that she was disabled at the relevant time and that her inability to work night shifts arose in consequence of her disability. The tribunal found that the respondent's recruitment process had resulted in the Emergency Department not being told before the claimant started work that occupational health had recommended exemption from night shifts.

The tribunal dismissed the discrimination arising from disability complaints. It found that the claimant was not required to take unpaid unauthorised leave because of disability-related inability to work nights; rather, the relevant absences were recorded as unauthorised because she did not follow the absence reporting protocol. It also found that the respondent did not require a flexible working request before considering adjustments, because it had already explored or trialled options including twilight shifts, redeployment, recruiting a nights-only nurse, reduced hours, and treating rostered night absences as medical suspension if the reporting protocol was followed.

On reasonable adjustments, the tribunal found that the respondent had a PCP requiring Emergency Department nurses at the relevant bands to work night shifts, and that this placed the claimant at a substantial disadvantage. However, it found that permanently exempting her from night shifts in the Emergency Department was not a reasonable adjustment in the circumstances, particularly in light of the evidence about 24-hour emergency staffing, difficulty covering night shifts, cost and skill mix issues, impact on other staff, and patient safety. It found that the respondent had explored and proposed other measures, including redeployment to Ambulatory Care, and that there was no breach of the duty to make reasonable adjustments.