Mr P Tomison (Counsel). For the v Respondent — 2021

Ms Nolan worked for the respondent as a paramedic from 25 January 2009. The respondent accepted that, at the material time, she was disabled by reason of Chronic Fatigue Syndrome, Myalgic Encephalomyelitis and spinal disc disease. The tribunal heard that she had periods of sickness absence, alternative duties and redeployment discussions before she resigned on 8 July 2020, with her employment ending on 5 August 2020. Liability was determined in this judgment only; the tribunal directed a later remedy hearing and did not fix compensation.

The direct disability discrimination claim failed. The tribunal accepted that Ms Nolan was given shorter notice than other candidates for the Freedom to Speak Up Guardian interview on 6 March 2020, but it found that the correct comparator analysis did not show less favourable treatment because of disability. By contrast, the tribunal upheld the section 15 claim in relation to that interview timing and also in relation to the respondent continuing the Case Review and sickness absence process after 1 April 2020, when the NHS social partnership guidance said routine employment relations activity should generally be paused during the coronavirus crisis. The allegation that the grievance was unreasonably delayed was rejected as reasonable in the circumstances.

The tribunal also upheld the reasonable adjustments claim. It found that the relevant PCP was the requirement for employees to perform their full contractual duties, that Ms Nolan was placed at a substantial disadvantage by her disabilities, and that the respondent had not shown why adjustments were not reasonable in relation to the Patient Safety Officer, Freedom to Speak Up Guardian and ECAT roles. The tribunal held that the ECAT night-working requirement should have been adjusted. Harassment related to disability was upheld for the 22 November 2019 comment, the 6 December 2019 remark and the repeated pressure to attend Case Review meetings, but not for the 2 January 2020 incident, which the tribunal found was not related to disability.

The tribunal found that the cumulative discriminatory treatment, failures to adjust and harassment amounted both to constructive discriminatory dismissal under the Equality Act and to constructive unfair dismissal at common law. It also found inaccuracies in the 17 October 2019 occupational health referral and the 10 December 2019 letter about return-to-work plans, which formed part of the background to Ms Nolan's resignation. The tribunal concluded that she resigned in response to the breaches and had not affirmed the contract.