: Mr J McElwee Mr A Matheson Ms K Black v Represented by: Ms E Campbell Solicitor NHS — 2024

The claimant was a disabled employee of NHS 24 with Crohn’s disease and had been working a night-shift-only rota after her managers agreed that this pattern helped control her symptoms. In the Shift Review process, the respondent sought to move Senior Charge Nurses onto standardised rotas. The claimant challenged the proposed change, and the tribunal recorded that an indirect disability discrimination claim had been withdrawn on 15 November 2023 and dismissed on 20 November 2023, leaving the reasonable adjustments claim for determination.

On time bar, the tribunal rejected the argument that the claim was out of time. It found that the relevant decision to withdraw the night-shift-only adjustment was not taken in the letter of 14 October 2022, which was treated as consultative, but in the outcome sent on 28 February 2023 after occupational health input. The ET1 presented on 4 August 2023 was therefore in time. The tribunal said that, even if it were wrong on that point, it would have extended time on just and equitable grounds.

On the merits, the tribunal found that the respondent applied a PCP that night-shift-only rotas would not be a standard working pattern for SCNs and that this placed the claimant at a substantial disadvantage because mixed or late shifts worsened her Crohn’s disease and caused stress and anxiety. It accepted the evidence of the claimant and her line managers that the night-shift-only arrangement had been effective, that it fitted the out-of-hours nature of the Cardonald Centre, and that it did not in practice cause overstaffing or undermine her role. The tribunal rejected the respondent’s evidence that a night-shift-only rota would prevent the claimant from carrying out the full SCN role, noting that many daytime activities already required voluntary attendance or shift sliding for any SCN.

The tribunal held that keeping the claimant on her existing night-shift-only rota was a reasonable adjustment and that removing it was unlawful. There was no financial loss because the claimant remained on the rota pending the judgment, so the award was for injury to feelings only. The tribunal placed the case in the middle of the middle Vento band, awarded £20,000 for injury to feelings and £2,277 interest, and ordered a total of £22,277. It also recommended under section 124(2)(c) Equality Act 2010 that the respondent allow the claimant to continue working exclusively on night shifts without demotion.