Dr K Schopflin v East London NHS Foundation Trust — 2021

The tribunal found that the claimant's long covid symptoms amounted to a disability from 12 November 2020 and that the respondent had constructive knowledge of that disability from the same date. It found that the claimant's sickness absence, reduced hours and inability to work full time arose in consequence of that disability. It rejected most of the factual allegations relied on by the claimant, and dismissed the claims of direct disability discrimination, harassment, failure to make reasonable adjustments, and indirect discrimination. It also held that there was no jurisdiction for the claimant's section 15 claim based on her husband's disability, or for associative indirect discrimination of the 'family and friends' type.

On the redundancy issues, the tribunal found that the restructure was first raised after the November 2020 occupational health advice recommending reduced hours for at least three to six months, against a background of concern about the effect of the claimant's part-time working and absence on the team. It found that the claimant's disability-related absence and part-time working were part of the reason why the respondent concluded that the Head of Information Governance role could be deleted and its functions redistributed.

The tribunal therefore held that provisionally selecting the claimant's role for deletion, confirming that deletion, selecting her for redundancy, giving notice of dismissal and terminating her employment were unfavourable treatment because of matters arising in consequence of her disability. It accepted that meeting operational requirements and maximising service levels was a legitimate aim, but found the treatment was not proportionate because the respondent had not considered alternatives, including retaining the claimant on a permanent part-time basis with a salary reduction and creating lower-graded support in Luton.

The tribunal separately found that the respondent did not consider alternatives to redundancy, but held that omission was not itself sufficiently connected to something arising from disability for section 15 purposes. The successful claims were therefore confined to the redundancy selection and dismissal steps identified in paragraphs 4(m), (n), (o), (q) and (r) of the list of issues.