Employment Tribunal Partially Upholds Disability Discrimination Claims

OUTCOME: Allowed in Part

Case No. 2407869/2023 & 2410886/2023

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

[COMPANY_28]:

Bridgwater Community Healthcare NHS Foundation Trust

HELD AT:

Liverpool ON: 26, 27, 28, 29, 30 January, 2, 3 & 4 February (chambers on 23 February) 2026 BEFORE: Employment Judge Johnson

MEMBERS: [NAME_2]

[NAME_2]:

Claimant: [redacted]

[NAME_3] (counsel)

JUDGMENT

The judgment of the Tribunal is that:

(1) The complaint of harassment by reason of disability under section 26 Equality Act 2010 is not well founded and is dismissed;

(2) The complaint of direct discrimination by reason of disability under section 13 Equality Act 2010 is not well founded and is dismissed;

(3) The complaint of a failure by the [COMPANY_28] to make reasonable adjustments contrary to sections 20 & 21 Equality Act 2010 is:

(a) well founded and succeeds, but only in relation to allegation 3.5.3 in that the claimant was not provided with a usable larger screen following her move to Runcorn on 28 May 2023 and until 16 July 2023 when a cable was provided, and;

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(b) the remainder of the claim that there has been a failure to make reasonable adjustments (allegations 3.5.1, 3.5.2, 3.5.4, 3.5.5, 3.5.6, 3.5.6, 3.5.7 and 3.5.8), is not well founded and is unsuccessful.

(4) The complaint of victimisation contrary to section 27 Equality Act 2010 is not well founded and is dismissed.

(5) The case will now proceed to a remedy hearing on a date to be confirmed before the same panel and listed for 1 day.

REASONS

Introduction

1. These proceedings arose from the claimant’s employment as a student specialist community public health [NAME_4] which began on 19 September 2022, and which ended on 12 November 2023. She refers to disabilities of dyslexia, dyspraxia, dyscalculia and ADHD.

2. The claimant presented a claim form (‘claim one’ under case number 2407869/2023) on 4 August 2023 following a period of early conciliation from 27 May to 8 July 2023. She identified complaints of disability discrimination.

3. The [COMPANY_28] presented a response and grounds of resistance relating to this first claim on 13 September 2023 resisting the claim but making no admissions regarding disability and seeking further information.

4. Following the ending of her employment, the claimant presented a second claim form (‘claim two’ under case number 2410886/2023).

5. The [COMPANY_28] presented a response and grounds of resistance relating to claim two on 14 November 2023, again resisting the claim. Judge Allen proposed that claims one and two be considered together.

6. Judge Batten considered the case at a preliminary hearing case management (PHCM), on 8 December 2023 with a further PHCM before Judge Allen on 21 October 2024 when the list of issues was finally identified, (pages 1485 to 1490) and this final hearing date was listed.

7. Day 1 of the final hearing was reserved for reading by the Tribunal panel. However, time was extended to include the morning of Day 2 because a panel member originally booked for this hearing was unable to attend. [NAME_2] was helpfully available to step in at late notice. It was necessary though for some additional reading time to be allowed because she joined the panel later than [NAME_2] and Judge Johnson.

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3 8. The claimant was unrepresented and did not have a relative or friend with her as a support on every day of the final hearing, although friends and family did take turns to support her when they were able to attend.

9. Time was spent at 2pm on Day 2, discussing what adjustments could reasonably be provided to the claimant. This included regular breaks, additional time to consider replies to questions and questions being broken down into single matters so she would not become overwhelmed. She used her own laptop with software adapted to her specific learning disorders and neurodiversity and had access to paper bundles and statements with coloured paper to ease reading them.

10. Following the first break after 3pm on Day 2, the Tribunal clerk responsible for this hearing informed the panel that the claimant sought a further adjustment. Judge Johnson asked the claimant whether she wished to make a further request. She confirmed that she did and asked whether the Tribunal could order that only the Tribunal panel, the claimant and [NAME_3] of counsel remain in the hearing room while she gave her evidence. It should be noted that the [COMPANY_28] relied upon eleven witness statements and ten of them were in the hearing room along with two [COMPANY_28] observers.

11. The claimant had provided no medical evidence but said she believed this adjustment would stop her from becoming overwhelmed. Judge Johnson explained the principle of open justice, that final hearings were expected to be in public and the [COMPANY_28] had provided witnesses to rebut the allegations which the claimant had made. It was normal and reasonable for them to be present in the room, especially as there were disagreements regarding the factual allegations being made.

12. It was added that the step proposed by the claimant was a draconian one which would cause significant prejudice to the other party. It was acknowledged that the claimant (and indeed many of the witnesses giving evidence), would find an 8 day hearing stressful. However, unless medical evidence was provided by the claimant which explained why such an adjustment was necessary, it would not be allowed. The claimant was cautioned that even then, the prejudice that such a step would cause to the [COMPANY_28] meant it is unlikely that it would be in the interests of justice for it to be permitted. Nonetheless, the claimant was reminded that she would be supported in other ways as discussed at the beginning of the hearing and she should continue to raise matters as the hearing progressed. Judge Johnson checked the claimant was able to proceed on a regular basis and allowed additional and longer breaks where she was becoming anxious, which arose as each stage of the hearing was reached.

Issues

13. The issues which the Tribunal has been asked to consider can be found at pages 1485 to 1490 of the final bundle and they were annexed to Judge Allen’s PHCM. They will not be repeated in detail, given their length. They

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4 were used by the Tribunal when determining this case and the parties referred to them throughout the hearing. In summary, they took the following form:

a) 1. Disability (section 6 Equality Act 2010 (EQA)) – the [COMPANY_28] accepts dyslexia, dyspraxia and dyscalculia from 19 September 2022 to February 2024. ADHD remained disputed.

b) 2. Harassment related to disability (section 26 EQA 2010) – 6 allegations of unwanted conduct

c) 3. Breach of duty to make reasonable adjustments (sections 20 & 21 EQA 2010), referring to 8 PCPs and 8 adjustments.

d) 4. Direct disability discrimination (section 13 EQA 2010)

i) 5 allegations of less favourable treatment ii) Hypothetical comparators, except in relation to treatment involving interview scoring where the other candidates attending the interview are used.

e) 5. Victimisation (section 27 EQA 2010)

i) 3 protected acts involving grievances brought in May 2023, 24 July 2023 and 25 August 2023. ii) 8 detriments beginning in May 2023 and ending in February 2024, (regarding a post termination reference request).

f) 6. Time limits (section 123 EQA 2010)

g) 7. Remedy

Evidence used

14. The claimant gave evidence in support of her case from 2 pm on Day 2 of the final hearing and continuing until the morning of day 5, (although limited evidence was given on day 4 because the claimant became ill – see below).

15. The [COMPANY_28] called the following witnesses and who gave evidence on these days:

a) [NAME_5] (nee [NAME_6]) – Day 5 (am and pm.) b) [NAME_7] (nee [NAME_8]) – Day 5 (pm). c) [NAME_9] – Day 6 (am) d) [NAME_11] – Day 6 (am) e) [NAME_12] – Day 6 (pm) f) [NAME_13] – Day 6 (pm) g) [NAME_14] – Day 6 (pm) h) [NAME_15] – Day 7 (am) – limited questions asked by the claimant. i) [NAME_16] – Day 7 (a) – claimant had no questions for witness. j) [NAME_18] – Day 7 – claimant had no questions for witness.

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16. [NAME_20] did not attend, and the [COMPANY_28] relied upon her written statement which while signed and dated, had limited evidential value.

17. Documents were contained in a final hearing bundle of 1529 pages. This consisted of pleadings and orders, documents, policies and claimant’s medical evidence.

18. As described above, the claimant found Day 4 particularly difficult. This was when she had almost completed her witness evidence and was about to begin cross examining [COMPANY_28] witnesses. During a break, it became clear that she found the prospect of this next stage to be overwhelming, became unwell and it was necessary to pause the hearing until Day 5 when the cross examination of [COMPANY_28] witnesses began.

19. On Day 7, the claimant had limited questions for [NAME_21] and no questions for [NAME_17] or [NAME_19], (the latter being a HR Manager). Enquiries were made by Judge Johnson to ensure the claimant understood that she should consider cross examining witnesses where they challenged her allegations. She was reminded that if she did not challenge the witnesses, it was likely that [NAME_3] (in final submissions), would invite the Tribunal to accept these statements in their entirety. The claimant however, explained clearly that she had reflected between the end of day 6 and the beginning of day 7, considered the list of issues and she did not wish to cross examine the remaining two witnesses. The [COMPANY_28]’s case was therefore concluded before 11am on Day 7.

20. Having considered the claimant’s status as a litigant in person, her specific learning disorders and her neurodiversity, Judge Johnson asked the claimant if she could be ready to give final submissions during the afternoon of Day 7. This was proposed because of the earlier than anticipated conclusion of the [COMPANY_28]’s case and in order that the Tribunal could use the entirety of Day 8 (the final day), as deliberation time. The claimant however, confirmed that she would not be able to complete this task and be ready to deliver final submissions until 10am on Day 8.

21. [NAME_3] confirmed he would provide a written summary of his final submissions by 6pm on Day 7 so that the claimant could use the evening to prepare and finalise her arguments. This was allowed as being within the overriding objective because although the Tribunal was keen to avoid unnecessary costs and adopt a flexible approach, it was recognised that the claimant’s circumstances required her to have the additional time discussed and provisionally planned earlier during the final hearing before concluding the preparation

22. In terms of support from family and friends, the claimant had the following companions – day 2 alone, day 3 sister, day 4 [NAME_22] (friend) attended when C became ill, days 5 and 6 her son, day 7 unaccompanied,

Findings of fact

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23. The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make.

24. In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose.

The [COMPANY_28]

25. The [COMPANY_28] is an NHS Trust providing community and specialist services to people in the North West of England, including health visitors. This case involved the [COMPANY_28]’s health visitor services in Halton and Warrington. They can be considered a large employer with access to significant HR and Occupational Health ([NAME_23]) resources and NHS policies and procedures.

26. The [COMPANY_28] engaged in the training of health visitors and students began employment under a 12 month contract over 52 weeks with 50% training being taught theory and 50% practice. The training took place in partnership with the [COMPANY_24] and successful completion of the training would result in qualification as a Specialist Community [NAME_4] ([NAME_4]).

The claimant

27. The claimant applied for a place on the student [NAME_4] programme on 10 August 2022 and interviewed later that month. She referred in her interview to having dyslexia, dyspraxia and dyscalculia (though not ADHD at this stage).

28. The [COMPANY_28] used [COMPANY_25] to deal with employee health matters and they produced an ‘Employment Suitability Report’ on 27 August 2022. The report involved consideration of health information provided by the claimant but no in person examination took place. Basing their decision upon the details of the trainee role and the claimant’s evidence provided, the [NAME_43] believed ‘…the candidate is unlikely to be covered by relevant Equality Legislation.’ and ‘At this time no adjustments to the working environment are required for this candidate.’ (p340).

29. The claimant was offered employment on 12 September 2022 with a start date on 19 September 2022, (pp347-350). She was informed by [NAME_9] the team leader at [NAME_27], Widnes, that she would be based there and start on 26 September 2022. This would be following an initial week of induction with the [COMPANY_28] and the university, (pp351-353). The claimant signed the [COMPANY_28]’s contract of employment on 12 September 2022, (pp354-366).

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7 The initial period of employment

30. Unfortunately, within days of beginning work at [NAME_27], the claimant fell ill (on 28 September 2022) and was absent from work for a week.

31. The [COMPANY_28] had a system of monitoring each student’s progress with qualified health visitors operating as supervisors or assessors. [NAME_10] explained supervisors would accompany students on home visits and clinics to ensure that they were able to carry out each task competently. Assessors would receive information from supervisors in relation to each student’s practice to ensure that they were achieving the levels of safe care required for the role. The Tribunal accepted that ensuring students had progressed sufficiently in their training so that they could operate safely as health visitors and be trusted to visit service users without constant supervision was essential.

32. [NAME_15] was assigned as the claimant’s nominated supervisor, but she was off work ill until January 2023. However, her assessor ([NAME_6]), acted as her supervisor as well during [NAME_21]’s absence. In any event we accepted [NAME_10]’ view (and from other health visitors who gave evidence), that all qualified health visitors effectively acted as supervisors to ensure students could be always supported. This was the case even where they had not been identified as the student’s nominated supervisor.

33. The claimant initially argued that what she required from the beginning was ‘a mentor sat with me like a buddy.’ She believed that every other student had a mentor and assessor from day 1. However, she acknowledged during the hearing that the programme did not offer a mentor as such and that the supervisor and assessor fulfilled the role of monitoring progress and ensuring safe practice. This was clearly explained by [NAME_6] in her evidence.

34. The claimant did have a named supervisor and assessor from the beginning of her employment with the [COMPANY_28] even if initially, [NAME_6] was covering for both roles while [NAME_21] was absent through ill health.

35. The claimant believed she was treated differently ‘from day 1’ being sent to different offices and working with different [NAME_4] disciplines such as immunisation and the baby clinic. It was accepted by the [COMPANY_28] that the claimant was moved to Chapelfield in Widnes (close by to [NAME_27]), because that was where [NAME_6] was based. The clinic visits were part of the health visitor job and a necessary of part of training and in any event, the claimant accepted that the nurses in these settings were helpful.

36. [NAME_6] became aware of the claimant’s specific learning disorders from [NAME_10] not long after the claimant started working with her, (believed to be October 2022). She was aware that the claimant would have been asked by the university to complete a Reasonable Adjustments Plan (‘RAP’) which would identify the student’s needs and supportive measures required while they completed the training programme.

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8 37. [NAME_6] was informed by the claimant that she would complete a copy of the RAP as soon as the university sent it to her. The university informed [NAME_6] that they had already done this and were awaiting the completed document from the claimant and said they would send her a reminder.

38. An Inclusion Plan using a [COMPANY_24] template was completed on 20 October 2022, (pp370-374). However, this was a document which was separate from the RAP which it is understood required the claimant’s collaboration and which she did not complete until 7 February 2023, (pp430- 433).

39. On 21 October 2022 the claimant emailed [NAME_10] stating that she was feeling uncomfortable about her seating arrangements at the office in Chapelfields. She compared herself with another trainee who was able to sit next to their supervisor, although no specific action was requested, (p374C). [NAME_10] responded that evening and said she was sorry to hear this. She offered to meet the claimant the next week when she was back at work to reallocate a desk.

40. Initially, [NAME_10] arranged for the claimant to sit next to [NAME_6] (assessor and temporary supervisor). Then when the claimant returned from study leave and [NAME_21] returned in January 2023, the claimant was moved again so she could sit next to [NAME_21] as her designated supervisor. She also asked the claimant how she was feeling and whether she needed support noting that she had been informed that the claimant had missed university the previous day and reminded her that attendance was important, (p374B).

41. [NAME_10] confirmed IT training had been booked for 31 October 2022 in an email dated 24 October 2022, (p374A).

42. Although the witnesses were not precise as to when the claimant identified specific adjustments, on balance we concluded that she informed [NAME_10], that a larger monitor and the use of coloured paper would be of assistance. These were provided in November 2022. There was a problem in that the larger screen required a suitable cable compatible with the claimant’s laptop and/or printer. However, these items and the noise cancelling headphones (which were requested by the claimant on 3 January 2023), were in place shortly after the meeting between [NAME_6], [NAME_21] and the claimant on 27 January 2023, (p407). The claimant did not provide evidence that she was chasing this equipment, although as stated above, she was involved with study leave during the month prior to 3 January 2023.

43. [NAME_10] explained that she was concerned by the claimant’s higher than normal sickness absence and the failure to attend some of the placements. We accepted that [NAME_10] asked the claimant whether any additional adjustments were required and none were identified during this period.

January 2023 to March 2023 (including allegation 2.1.1)

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9 44. During this period, it became clear that the claimant was finding the programme challenging and was struggling to progress. Management at the [COMPANY_28] were concerned and sought to involve the university as well. Several meetings took place involving the claimant.

Meeting on 3 January 2023

45. The claimant began 4 weeks study leave from 4 December 2022 until 3 January 2023 when she returned to her work placement. She explained to [NAME_10] at a meeting on 3 January 2023, that she was struggling with the academic work. [NAME_10] decided that she would postpone the forthcoming alternative practice by 2 ½ weeks so the claimant could focus upon a work plan which would demonstrate sufficient examples of earlier practice. This was recorded in a ‘My Space’ diary entry by [NAME_10], (p390-392).

46. [NAME_10] noted how overwhelmed the claimant was and noted that she had tried to reassure her. The claimant was unhappy with her supervisor and [NAME_10] recorded that she tried to provide reassurance that everyone was committed to supporting her in achieving her qualification as a health visitor. The claimant was reminded of her obligation to attend training which had not been consistent. A Tripartite Meeting was arranged with the university to discuss progress and the support needed, (see below).

47. [NAME_10] felt it was important that the claimant be provided with an Action Plan. Adjustments were discussed. The claimant was reminded that she could apply for Access to Work, but the application had to come from her and not the [COMPANY_28]. The claimant was also encouraged to identify any adjustments she required and it was understood that she had not yet completed the RAP. .

Meeting on 4 January 2023

48. The following day on 4 January 2023, the claimant and [NAME_6] attended [NAME_21]’s house to discuss the claimant’s progress, and an initial Action Plan was created to support the claimant, and this was shared with her.

Meeting on 11 January 2023

49. There was then a meeting on 11 January 2023 with the claimant, [NAME_10] and [NAME_6]. It had been arranged because of concerns from a member of the team that the claimant had told a staff [NAME_4] that she was unsupported in work, had no plan and she was expected to complete a birth visit by the end of the next week despite not feeling ready. The claimant denied that this had been said she had just been answering questions of the [NAME_4] in question. The claimant did accept that she was struggling and found it hard to feel part of the team. [NAME_10] and [NAME_6] offered to assist the claimant.

Tripartite Meeting on 13 January 2023

Case No. 2407869/2023 & 2410886/2023

10 50. The Tripartite meeting which took place by Teams between the claimant, [COMPANY_28] and university on 13 January 2023. This was attended by the claimant, [NAME_29] and [NAME_30] (both from the university), [NAME_8], [NAME_6] and [NAME_10] (all from the [COMPANY_28]), (p399-400). The date had been brought forward because the claimant was upset and had called the university. The claimant discussed her dyslexia and dyspraxia. She mentioned ADHD and it was understood that [NAME_29] at the university would refer the claimant for further assessments in respect of this condition. The claimant described being overwhelmed because of dyspraxia. The meeting was essentially a summary of the claimant’s difficulties and in particular it was noted how deflated she felt having failed an exam. The claimant described having worked unsocial hours and appeared to have challenges at home with her family.

Review Meeting on 27 January 2023

51. A review meeting took place on 27 January 2023 between [NAME_6] and [NAME_31] and the claimant to discuss the Action Plan, adjustments and to offer a referral to [NAME_23] as well as asking for the RAP from the claimant. (p407)

Tripartite Meeting on 3 February 2023 (Allegation 2.1.2 – conduct of [NAME_10] and [NAME_6])

52. A further Tripartite meeting took place on 3 February 2023 and was attended by the claimant, [NAME_29] and [NAME_30] (both university), [NAME_8], [NAME_6] and [NAME_10] (all [COMPANY_28]), (pp417-419). The claimant was also present. It was noted that the claimant had not yet completed the RAP, (see below).

53. [NAME_8] observed that it was late (in terms of the academic year), to be submitting this document given that implementation would then have to be considered many months after the training programme began. Adjustments were discussed and headphones had been purchased on 27 January 2023, although the claimant was absent during January so was only in work for 10 of the 20 working days from 3 to 28 January 2023. A discussion was recorded where it was explained to the claimant how to use her laptop to spell check and dictate documents.

54. The claimant was reminded that she had 8 years nursing experience and although she was anxious, she should reflect upon the skills already has. The claimant was clearly struggling with self-esteem and anxiety given the time spent discussing these matters during the Tripartite meetings and was wary of her relationship with [NAME_10], (she referred to feeling like she was walking on eggshells when they were together). This candid explanation by the claimant took place when [NAME_10] and [NAME_6] had agreed to temporarily leave the room so that a frank discussion could take place with university staff and without those who were line managing her, being present. The claimant argued that [NAME_10] and [NAME_6] eavesdropped upon her comments, but we were unable to accept that the evidence supported this allegation.

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11 55. However, [NAME_10] was recorded as making some frank comments to the claimant. In summary [NAME_10] expressed concern about how the claimant must be responsible for her learning. Her low mood was acknowledged, but she was remined that the health visitor role involved dealing with patients which required health visitors to act quickly and confidently. She asked the claimant whether this was a role that she wished to commit to for the remainder of her working life.

56. We accepted it was reasonable for [NAME_10] to raise this question because of her concerns about the claimant’s professionalism and whether she could be trusted to visit patients independently and without supervision. She referred to feedback from the [NAME_32] about the claimant’s behaviour and presentation and [NAME_10]’ concerns about the claimant’s ability take constructive feedback and observed that she tended to deflect challenge.

57. [NAME_29] expressed surprise that this had not been raised with the university earlier. [NAME_10] referred to previously raising concerns and requesting Tripartite meetings. A note by [NAME_29] referred to the matters raised and broadly reflected what had been said and questioned the difference between the claimant’s and [NAME_10]’ comments, (pp422-3 and 445-6).

58. During this meeting, the claimant experienced critical feedback and it was no doubt difficult for her to hear. However, what was said was necessary, relevant and involved genuine concerns about the claimant’s progress in role.

[NAME_9] referral of the claimant to [NAME_23] (Allegation 2.1.3)

59. The claimant had agreed to being referred to [NAME_23]. [NAME_10] completed the referral form which the claimant was shown by [NAME_33] [NAME_23] at the consultation on 3 Feb 2023, (pp463A-463E). The claimant was unhappy with the wording of the referral asserting that, ‘a lot of it was untrue…it also lacks awareness about disability…lacks compassion.’

60. However, the referral identifies the claimant’s impairments, adjustments already made and explains what the [COMPANY_28] believes cannot be reasonably provided. The difficulties in the workplace observed by [NAME_10] were identified and explained within the referral and concludes with a clear request for advice concerning further adjustments. It was a comprehensive referral seeking support from [NAME_23]. The Tribunal accepted it raised reasonable issues in fair way and did not seek to place blame upon the claimant.

61. The Tribunal noted that the [NAME_23] report consisted of densely worded text, with large paragraphs and is not easy to read, (pp487-8). This was surprising considering it involved a person with specific learning disorders and who was likely to be reading it. In any event, it did contain management advice, confirmed the difficulties described and recorded that a high level of support would be required.

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12 62. The [NAME_23] report stated, ‘if operationally feasible, it is therefore advised for [the claimant] to be permitted an extension to complete her competencies and alleviate the associated stress.’ It was advised that a stress risk assessment take place, the claimant consider approaching Access to Work, consideration by management of a Workplace NEEDS Assessment. [NAME_33], however, could not identify any additional adjustments herself beyond those adjustments already implemented by the [COMPANY_28].

The completed RAP – dated 7 February 2023

63. Several adjustments were identified within the RAP which were:

a) access to a bigger screen to allow larger text to be used when preparing documents; b) noise cancelling headphones and green paper to print; c) ‘121’ IT support; d) ‘121’ disability support from someone specialised in learning difficulties; and, e) Referral to [NAME_23] regarding anxiety and stress and feeling overwhelmed.

The Tribunal accepted that the [COMPANY_28] did consider adjustments before the RAP was finally produced on 7 February 2023.

[NAME_6] [claimant no longer alleges against [NAME_10]] searched the claimant’s [NAME_34] ‘profile’ for inappropriate comments (Allegation 2.1.4)

64. On 14 February 2023 [NAME_6] became aware of a [NAME_34] post posted by the claimant the previous day relating to a riot outside a local hotel which housed asylum seekers and where a Police van had been set on fire. The claimant expressed support for the activities of the rioters believing them to have been carried out to protect children. The claimant believed that [NAME_6] had been carrying out covert surveillance of her [NAME_34] pages (and not just restricted to her ‘profile’ page), and this is how she discovered the post in question.

65. However, the Tribunal preferred the credible evidence from [NAME_6] whose evidence was unchallenged. She explained that one of her nursing friends who had seen the claimant’s post on [NAME_34] looked at the claimant’s profile and noted that she was a [NAME_4]. We accepted that the friend in question was also a [NAME_34] friend of the claimant, knew the claimant was a [NAME_4] working with [NAME_6] and felt the need to raise this with her.

66. We accepted that once referred to [NAME_6], both she and [NAME_10] became concerned that a [NAME_4] (who could be working in an area with migrants and asylum seekers), was posting views of this nature. They were also concerned that the claimant might also be infringing the Nursing and Midwifery Council (NMC) requirements that nurses treat people according to need rather than background.

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13 67. [NAME_19] of HR confirmed that this could be a conduct issue and quite reasonably, managers made enquiries into the claimant’s freely accessible social media history. Consequently, any search of [NAME_34] arose because of the offending post and not because any inappropriate surveillance.

The conduct of the investigatory meeting on 1 March 2023 (Allegation 2.1.5)

68. The claimant says she was invited to an investigatory meeting because of the [NAME_34] post on 1 March 2023. However, having considered the available evidence, the Tribunal accepts [NAME_19] advised [NAME_10] and [NAME_6] of the Trust’s 4-step process relating to potential disciplinary matters. This began with the line manager meeting with the employee and requiring them to complete a reflective statement about the incident in question on 21 February 2023, (p459).

69. A meeting took place on 27 February 2023 where [NAME_10] and [NAME_6] requested that the claimant produce the reflective statement, (pp484-486) and invited her to a meeting on 1 March 2023. This meeting did take place with [NAME_6] and the claimant. [NAME_10] did not attend because she was concerned about earlier issues raised about her by the claimant. It is understood that [NAME_21] was asked to be present to support the claimant but denied turning up. The claimant did not challenge these witnesses regarding this evidence and accepts the [NAME_34] post was wrong as indicated in her reflective statement. The Tribunal did not hear any convincing evidence of inappropriate conduct by [NAME_6] at this meeting, does not accept that [NAME_21] or [NAME_10] was present and no reference was made in the meeting to the claimant’s disability.

[NAME_9] telling the claimant across the office that she was being given a conduct warning (Allegation 2.1.6)

70. The claimant says that on 28 March 2023, [NAME_10] shouted to her across the office in front of other staff saying that she was being given a Conduct Warning. This related to the disciplinary process regarding the [NAME_34] post.

71. This allegation was denied by [NAME_10]. Firstly, she said that she did not know for sure what the actual sanction would be on this date as she was not involved with the ongoing process and only the likely sanction. Secondly, she was clear that she would not have spoken to the claimant in this way and would have told her of anything of such a personal nature, more discretely. She recalled wanting to tell the claimant of the likely outcome on this day because the claimant was anxious that she might be dismissed. [NAME_10] was aware that the claimant was about to begin study leave and wanted to reassure her before it began. She believes she stood next to the claimant and told her quietly.

72. On balance, we found [NAME_10]’ description of this incident more credible and preferred her evidence which she clearly addressed under cross examination from the claimant.

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14 [NAME_9] deliberately scoring the claimant lower during health visitor interviews (Allegation 4.1.1)

73. The [COMPANY_28] had five permanent health visitor vacancies available for the trainees of 2022/23. There were six trainees in that year group including the claimant. The claimant alleges that she was treated less favourably by reason of her disability than the other candidates because [NAME_9] scored the claimant lower at the interview on 25 April 2023.

74. During her evidence, the claimant’s rationale for this allegation was that there were more candidates than vacancies. She did not consider the possibility that as part of a competitive interview, she did not perform as well as the other candidates.

75. The Tribunal noted that [NAME_10] was not the sole interviewer and interviews consisted of a panel of two members of the [COMPANY_28] and two members who were external interviewers.

76. The claimant confirmed that she took no issue with the other three panellists and scoresheets were available within the bundle which revealed that each interviewer assessed each candidate separately. The panel were provided with a scoring matrix which explained what answers would justify what scores from 1 to 5. A minimum score of 3 for each question was required. The claimant failed to achieve an overall score of 3 for each question and [NAME_10] scored her the highest compared with her fellow interviewers.

Holding mid-term review without the claimant in attendance in May 2023 (Allegation 5.2.1)

77. The claimant alleges that she was the subject of a mid term review meeting on 15 May 2023, which happened when she was absent from work by reason of ill health. The Tribunal accepted that the claimant was referring to the Second Formative Assessment (the First having taken place on 6 February 2023). This consisted of a grid document with areas identified where the trainee was marked as performing well (white) and less well (shaded grey), (pp573A-C).

78. There were significantly more grey boxes than white boxes in this document dated 16 May 2023. There were some positive elements on her progression, but not enough to demonstrate that she could progress to the ‘Consolidation’ part of the placement where trainees work alone on placement.

79. The Second Formative Assessment needed to take place when it did because of the stage reached in the training year. This document had to be completed and incorporated within the trainee portfolio before the placement could be completed.

80. The Tribunal accepted that an additional urgency arose from the significant difficulties experienced by [NAME_6] and [NAME_21] in supervising / assessing the claimant. They asked [NAME_10] to deal with their concerns on

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15 15 May 2023, and both described feeling burnt out and suffering mental health issues because of their experience in managing the claimant.

81. [NAME_6] gave credible evidence about a failure to progress the claimant and her supervision having a significant impact upon her own mental health leading to a diagnosis of PTSD.

82. [NAME_21] whose evidence was unchallenged, provided on a ‘Reflection on my feelings today – 15/05/23’ statement which gave a frank assessment of the claimant’s performance and provided from the perspective of a [NAME_4] of 45 years’ experience. She described in detail the claimant’s lack of progress and expressed concern about her honesty with colleagues, but perhaps more importantly referred to her own health suffering, having disturbing sleep and being ‘deflated and emotionally unavailable when I return home from work.’ This was a contemporaneous document, not challenged by the claimant.

The claimant’s first grievance – 16 May 2023

83. The claimant raised her first grievance on 16 May 2023, (pp578-592). She asserted bullying and discrimination at [NAME_35] whilst on placement there. She directed the grievance against [NAME_10] and covered the entire period of her time at Chapelfield. [NAME_19] acknowledged the grievance on 18 May 2023 and arranged to meet when the claimant returned from ill health.

84. A meeting took place between [NAME_19], [NAME_14] and the claimant on 19 May 2023. As she did not wish to work any longer with [NAME_10], it was agreed that she move to Runcorn and in [NAME_14]’s note of the meeting the claimant was described as happy to move. The claimant did acknowledge that she thought she was a difficult student, who overshares, (p465).

The claimant’s Action Plan following her move to Runcorn (Allegation 5.2.2)

85. The claimant said that [NAME_14] only gave the claimant 4 days to complete the Action Plan set in January 2023, (and described above). However, [NAME_14] argued that at a meeting on 23 May 2023 with the claimant and Clinical Manager [NAME_36] the claimant was told she had two weeks from that date to make progress or a formal capability process would be commenced because of the length of time that the Action Plan was outstanding. The claimant emailed [NAME_14] on 26 May 2023 seeking the most up to date version of the Action Plan.

86. While the Tribunal accepted that the claimant might find this requirement challenging, she only had to demonstrate progress rather than complete the plan. It was reasonable to inform her that if no progress was made, her capability needed to be considered given that capability arose from progression through the training programme.

87. The Action Plan had been running since January 2023, and the training placement was intended to conclude by September 2023. The claimant was

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16 not ready to proceed to the consolidation stage and her performance was a genuine concern for the [COMPANY_28].

[NAME_13] and [NAME_12] providing negative feedback to the claimant during her visits from May 2023 until 18 August 2023 (Allegation 5.2.6)

88. The claimant says that both [NAME_13] and [NAME_12] gave only negative feedback and no positive feedback from the end of May 2023 to 18 August 2023. The Tribunal heard from both [COMPANY_28] witnesses and during cross examination. We found that they gave convincing evidence with examples of positive evidence being provided. As supervisor and assessor, they were required to be honest about what progress was being made and so negative comments might be made. This would only be in relation to the claimant’s performance, and the Tribunal was not persuaded that there was any malice on their part.

Providing the claimant with a larger screen or connection to a screen (Allegation 3.5.3)

89. Although provided by the [COMPANY_28] earlier in the year when the claimant was in Widnes and referred to in the RAP (when finally completed on 7 February 2023), this equipment had not been transferred from Widnes and was not ready for use when she arrived at Runcorn on 28 May 2023.

90. The claimant complained to [NAME_8] on 30 May 2023 that she had not received all her adjustments. [NAME_19] was contacted and emailed [NAME_14] and [NAME_36] (p659A) requesting that these adjustments be transferred and implemented.

91. Consequently, the claimant was provided with a larger screen from the Runcorn building on 5 June 2023. This was provided because [NAME_19] had told the Clinical Manager in Runcorn to ensure the adjustments were in place.

92. We accepted that the claimant required a new cable for that particular screen so that it would connect with her laptop. [NAME_19] told the claimant to speak with IT. The claimant complained to [NAME_19] on 3 July 2024 that she was not receiving support and she had not obtained a cable from IT. This was finally resolved 7 July 2023.

93. There was clearly some delay in ensuring all the adjustments were implemented following the transfer to Runcorn, although they were mostly completed quickly. The Tribunal accepted the evidence of the [COMPANY_28]’s witnesses and in particular [NAME_11] (whose evidence was largely unchallenged), that she helped the claimant settle in while [NAME_13] the allocated practice supervisor was on annual leave.

94. [NAME_13] had been allocated as supervisor for the claimant because she was also dyslexic. This reflected the RAP recommendation for 1:1 disability support. Ms [NAME_11] ensured that the claimant could work in a quieter part of the

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17 office, arranged for the very big screen (albeit without correctly fitting cable), ear defenders, cushion for chair and Dragon dictation software. While there some difficulties in providing the cable for the screen, a great many things were done to ensure that claimant was adjusted into the workplace.

Providing the claimant with coloured paper (Allegation 3.5.5)

95. The Tribunal considered the evidence of the claimant and the [COMPANY_28] witnesses and concluded that coloured paper to assist the claimant with her reading of documents was readily available and provided. The claimant was able to order any colour she liked in the event an appropriate colour was not available. On balance, the Tribunal did not accept this allegation was correct and that there was not a failure to meet this adjustment when the claimant was in either Widnes or Runcorn.

The claimant requiring additional time and proceed to the consolidation stage

96. A Tripartite meeting took place on 9 June 2023, and the claimant’s failures to meet the competencies were discussed. A plan of action was agreed where the claimant had two weeks to make the necessary improvement to her action plan so she could proceed to the 10 week consolidation stage. If this could be achieved, the [COMPANY_28] would extend the claimant’s contract by 1 week to accommodate the practical hours she would need to complete her course. If she failed to make necessary progress, the capability process would then be triggered.

97. The claimant denies options were put to her in this way, but on balance we accepted the [COMPANY_28]’s evidence because the contemporaneous notes supported this and the claimant herself accepted she was not ready to proceed to consolidation, (p469).

98. We accepted [NAME_14]’s evidence that the claimant had been allowed to remain on the same informal Action Plan since February 2023 (and reviewed on a monthly basis), but unfortunately her skills were not progressing. The Action Plan was updated 16 June 2023 at a meeting where the claimant was present, and no new actions were added. The claimant was not expected to complete everything in the Action Plan when she moved to Runcorn in June 2023, but simply to demonstrate progress.

99. The Tribunal acknowledged that the claimant was becoming a cause for concern and [NAME_19] and [NAME_14] considered whether a referral to the NMC was necessary. On balance they decided that any risk was mitigated by the ‘near constant supervision’ the claimant was under at this time. We accepted that the claimant was struggling to understand the key aspects of her role and she was being supported a great deal, (pp688-692),

[NAME_14] placing the claimant on capability (Allegation 5.2.3)

100. A tripartite meeting took place on 11 July 2023 and which the claimant did not attend. [NAME_14] placed the claimant on the [COMPANY_28]’s

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18 capability process on 12 July 2023 (and not in June 2023 as alleged). This was when [NAME_14] and [NAME_19] spoke with the claimant at the first stage formal review meeting under the capability policy.

101. It had been concluded that the claimant was not ready to progress to consolidation despite additional time being made available and there was insufficient time to complete the programme before the contract ended. The claimant had been given more than an additional month to progress her Action Plan and had failed to do so. Capability was not an unreasonable step for the [COMPANY_28] to take at this stage of the programme.

102. At this meeting, the claimant stated she believed there had previously been a misdiagnosis by her medical professionals of dyslexia and she now believed she had ADHD. [NAME_14] and [NAME_19] encouraged the claimant to get a diagnosis via her GP, and she could access [NAME_23] through the [COMPANY_28] as well if she wished.

Providing the claimant with two home visits per day and access to baby clinics while in Runcorn

103. The claimant alleged that while she was working in Runcorn during June and July 2023, she should have been allowed to attend two visits a day with patients. These were things the claimant wanted but had not been identified as adjustments in the RAP or elsewhere.

104. It was accepted that the claimant needed evidence of attending home visits and baby clinics. However, the Tribunal agreed with the [COMPANY_28]’s evidence that these opportunities were available but also had to be fitted into the claimant’s training programme. We accepted [NAME_12]’s convincing evidence that the claimant was given the same opportunities as other trainees during this period.

Workplace assessments

105. The claimant said she should have received a Workplace Assessment from [NAME_14] earlier than September 2023.

106. The Tribunal considered the circumstances of the claimant’s support from the [COMPANY_28] during the training programme. We concluded that the available evidence showed that she was supported by line management and by [NAME_23]. Numerous progress meetings and tripartite meetings took place and while no formal workplace assessment took place following the [NAME_23] report dated 3 March 2023 (and not until September 2023), we concluded that the claimant’s needs were properly supported. The claimant was encouraged to identify further needs and interestingly, the assessment when it took place, did not actually outline any further adjustments that had not already been offered to the claimant.

[NAME_13] telling the claimant not to hand in her prescribing portfolio (Allegation 4.1.3)

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19

107. The claimant alleged that [NAME_13] asked to see her prescribing portfolio in August 2023 and then told her not to hand it in when she was required to do so.

108. [NAME_13]’s evidence was credible, and we accepted that the portfolio needed to be signed off by an operational manager (in this case [NAME_13]). We accepted that the claimant’s prescribing portfolio was not complete. No examples were available to the Tribunal of other students in the same circumstances with poor performance being treated any differently to the claimant. There were genuine concerns over the claimant’s practice, and a manager could only sign off if happy with it.

Dismissing the claimant (Allegation 4.1.4)

109. The claimant’s contract was due to end on 18 September 2023. [NAME_19] explained concerns about the performance and still tried to get extension of time for her to complete the programme.

110. On 15 September 2023, [NAME_19] wrote to the claimant explaining that she had been able to obtain an extension to her contract of 6 weeks to enable her to complete the outstanding competencies and capability action plan. Additionally, if these steps were achieved, the claimant would be allowed an additional 10 weeks for the consolidation process to be completed. This arrangement was called the [NAME_37]. It was also agreed the claimant could at her request, be moved to Warrington during this period, (pp969-973).

111. Independently of this, the claimant was invited by [NAME_19] to discuss the termination of her existing fixed term contract, and which took place on 19 September 2023, (the claimant being unable to attend on 18 September 2023). [NAME_38] confirmed that the contract might be extended considering what [NAME_19] proposed. The [COMPANY_28] letter sent on 19 September 2023 confirmed termination and describing the reason as redundancy because it involved a fixed term contract coming to end, (p1061). Eight weeks’ notice was given with termination on 12 November 2023.

112. While the termination of employment notice can often be a source of anxiety for an employee, the Tribunal noted that in this case the [COMPANY_28] was simply following the necessary process, even though exploring an extension of the contract during the notice period. It should be the fixed term contract was effectively extended in any event beyond 18 September 2023 to allow for the correct notice period to be provided.

113. The claimant was unwell during the remaining period, and it was not possible to complete the [NAME_37] as planned. A letter was sent to the claimant on 14 December 2023 confirming dismissal on 12 November 2023. The claimant declined to respond to the invitation to discuss that dismissal hearing and did not appeal the decision. (p1230-1).

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20 The reference provided to [NAME_39] in February 2024, (Allegation 4.1.5)

114. A reference was requested for the claimant and provided by the [COMPANY_28] to the [NAME_39] in respect of the claimant’s application for a post as a prison [NAME_4] at [NAME_39].

115. The [COMPANY_28] provided a factual reference on 19 December 2023 confirming the dates of employment, the reason for termination being a fixed term contract ending with end of training contract. In answer to the question asked by the [NAME_39], would the [COMPANY_28] reemploy her, they said not in role of trainee health visitor, (p1237C). This was a reasonable reference and the answers given were fair under the circumstances.

Law

Disability

116. Section 6 of the Equality Act 2010 (EQA) provides that a person has a disability if—

a) they have a physical or mental impairment, and

b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

117. Section 212(1) of the EQA contains a definition of “substantial” which reads as follows. “Substantial means more than minor or trivial”

118. Schedule 1 paragraph (1) of the EQA provides that the effect of an impairment is long-term if—

a) it has lasted for at least 12 months,

b) it is likely to last for at least 12 months, or

c) it is likely to last for the rest of the life of the person affected

Direct discrimination 119. Section 39 of the Equality Act 2010 provides that an employer must not discriminate against an employee of his by, amongst other things, subjecting him to a detriment. 120. Section 13 of the Equality Act 2010 sets out the legal test for direct discrimination. A person (A) discriminates against another (B) if, because of a protected characteristic (race in this case), A treats B less favourably than A treats or would treat others. Causation

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21 121. If the act is not inherently discriminatory, the Tribunal must look for the operative or effective cause. This requires consideration of why the alleged discriminator acted as he did. Although his motive will be irrelevant, the Tribunal must consider hat consciously or unconsciously was his reason? This is a subjective test and is a question of fact. Comparators 122. For the purposes of direct discrimination, section 23 of the EQA 2010 provides that on a comparison of cases there must be no material difference between the circumstances relating to each case. In other words, the relevant circumstances of the complainant and the comparator must be either the same or not materially different. Comparison may be made with an actual individual or a hypothetical individual. The circumstances relating to a case include a person’s abilities if on a comparison for the purposes of section 13, the protected characteristic is disability. Harassment 123. Section 40 of the Equality Act 2010 provides that an employer must not, in relation to employment by him, harass an employee. The definition of harassment is set out in section 26(1) of the Equality Act 2010. A person (A) harasses another (B) if: (a) A engages in unwanted conduct related to a protected characteristic (race in this case); and (b) the conduct has the purpose or effect of : - (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 124. Section 26(4) provides that whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account: (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 125. The test contains both subjective and objective elements. Conduct is not to be treated as having the effect set out in section 26(1)(b) just because the complainant thinks it does. The Tribunal is required to take into account the Claimant’s perception, the other circumstances of the case, and whether it is conduct which could reasonably be considered as having that effect. Reasonable adjustments

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22 126. Sections 20, 21 and 39(5) read with Schedule 8 of the Equality Act 2010 provides a duty on the employer involving three requirements: ''(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.'' 127. Under section 21 EQA 2010, a failure by an employer to comply with one or more of these requirements is a failure to comply with a duty to make reasonable adjustments.

128. Paragraph 20 of Schedule 8 provides that an employer is not expected to make reasonable adjustments if he does not know and could not reasonably be expected to know that the employee has a disability and is likely to be placed at the disadvantage.

129. The guidance given in Environment Agency v Rowan [2008] IRLR 20, [2008] ICR 218 is to be applied, namely that in order to make a finding of failure to make reasonable adjustments there must be identification of:

(a) the provision, criteria or practice applied by or on behalf of an employer; or

(b) the physical feature of premises occupied by the employer;

(c) the identity of non-disabled comparators (where appropriate); and

(d) the nature and extent of the substantial disadvantage suffered by the claimant.

130. Although this was a case where the parties made minimal reference to case law, [NAME_3] did refer to the case of Mitchell v Marks and Spencer [2017] 2200625/2017. This was a case determined by a Tribunal panel chaired by Judge Segal and heard on 23 and 24 October 2017 in the London Central Employment Tribunal. [NAME_3] accepted that as this is a Tribunal decision, it is not a binding authority. However, the Tribunal appreciated that this relatively short decision may have assisted the claimant in understanding the way in which a Tribunal will consider a reasonable adjustments complaint.

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23 131. The Tribunal is aware of the leading authorities on reasonable adjustments, but these were not referred to by either party.

Victimisation

132. Section 27(1) of the EQA provides that a [COMPANY_28] will victimise a claimant if the [COMPANY_28] subjects the claimant to a detriment because:

a) The claimant makes a protected act, or b) The [COMPANY_28] believes that the claimant has done, or may do, a protected act.

133. Section 27(2) of the EQA says that each of the following is a protected act:

(a) bringing proceedings under the EQA 2010; (b) giving evidence/information in connection with proceedings under the EQA 2010; (c) doing any other thing for the purposes of or in connection with the EQA 2010; (d) making an allegation (whether or not express) that the [COMPANY_28] or another person has contravened the EQA 2010.

Discriminatory acts by employees under the EQA

134. Under section 109(1) of the Equality Act 2010, anything done by a person in the course of employment must be treated as also done by the employer. However, under section 109(4) it is defence for an employer if he can show that he took reasonable steps to prevent the employee from doing that thing or from doing anything of that description. Time limits 135. Section 123(1) of the Equality Act 2010 provides that a complaint may not be brought after the end of:

(a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the Tribunal thinks just and equitable.

Under section 123(3) conduct extending over a period is to be treated as done at the end of the period; and failure to do something is to be treated as occurring when the person in question decided on it.

The burden of proof in discrimination cases 136. Section 136 of the Equality Act 2010 sets out the burden of proof that applies in discrimination cases. Subsection (2) provides that if there are facts from which the Tribunal could decide, in the absence of any other explanation, that person (A) has contravened the provisions concerned, the

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24 Tribunal must hold that the contravention occurred. However, subsection (2) does not apply if A shows that A did not contravene the provision. Discussion

Time limits (section 123 EQA 2010)

137. Given that the early conciliation process for claim 1 began on 27 May 2023, any act or detriment which took place before 28 February 2023 is potentially out of time. The Tribunal did not hear argument from the claimant regarding whether any of the earlier allegations regarding conduct extending over a period or just and equitable reasons, nor whether time should be extended on just and equitable grounds. 138. Consequently, the Tribunal has considered those allegations of harassment which appear out of time, (2.1.1, 2.1.2, 2.1.3 & 2.1.4). Our conclusion is that they amounted to isolated acts and in the absence of any reasons explaining why the complaints were presented with the normal 3- month time period from when they took place, in accordance with section 123 EQA 2010, they are therefore out of time.

139. However, the Tribunal considered that it would in accordance with the overriding objective to consider each of the allegations in this case without excluding them because of time issues.

Disability (section 6 EQA 2010)

140. The [COMPANY_28] accepted that at the material time, the claimant was disabled within the meaning of section 6 EQA 2010 by reason of her diagnosed conditions of dyslexia, dyspraxia and dyscalculia.

141. The claimant’s diagnosis of ADHD is a more recent development following the issue of the proceedings and post dismissal. However, the progress to this diagnosis arose from the claimant’s assertion during her employment that her specific learning disorder(s) may have been misdiagnosed and she was concerned that she was actually neurodiverse.

142. We would agree with [NAME_3]’ submission that this matter is not really an issue that should trouble the Tribunal. Section 6 of the EQA 2010 is of course more concerned with employee’s impairments rather than specific diagnoses, (although they can often be helpful to employers in understanding what impairments exist and the substantial disadvantage that arises consequently).

143. In this case, there is no dispute that the material impairments were present during the relevant time of the claimant’s employment with the [COMPANY_28], made a significant impact on her day to day activities and were long term in nature. Although curiously, the initial medical assessment (in August 2022), of the claimant did not identify any material adjustments, the subsequent involvement of the university, management and the RAP confirmed that there were issues requiring support.

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25 Harassment (section 26 EQA 2010)

144. There were 6 allegations made (2.1.1) on 11 January 2023 to (2.1.6) 28 March 2023.

Allegation 2.1.1

145. The claimant had agreed that it was reasonable for her managers to raise concerns with her. [NAME_10] and [NAME_6] both gave convincing evidence that they did not behave inappropriately towards the claimant in their supervisory/assessing and managerial roles. They may have been challenging but this was entirely appropriate. The contemporaneous notes do not support deliberate, hostile or malicious behaviour. At this time, the claimant did contact her personal tutor, but the claimant did not react well to criticism, however reasonable or appropriate.

146. What the claimant alleged at the meetings was clearly unwanted from her perspective. The claimant did not relate the criticism to her disability because on 11 January 2023, the concerns raised were about comments being made by the claimant rather than issues with her learning shortcomings.

147. It was only at the Tripartite meeting on 13 January 2023 that specific learning disorders were mentioned. But this out of time allegation involves a reasonable management intervention. Even though the claimant was upset by what had been said, it was not intended to be intimidating or hostile. It could not reasonably be considered as having that effect.

Allegation 2.1.2

148. At the meeting on 3 February 2023, the claimant was unhappy about the action plan, management and adjustments. [NAME_10] was frank to the claimant when she was present, and the claimant believed her comments to be hostile. These comments were unwanted and related to performance concerns and the Action Plan. They related to the claimant’s disability but arose from a reasonable management intervention. We did not accept that they could be considered to have the purpose or effect to upset the claimant. It was important to ensure students were properly trained, could practice competently and safely and there were genuine concerns about how the claimant conducted herself.

149. This out of time allegation is not well founded.

Allegation 2.1.3

150. The [NAME_23] referral letter was sent by [NAME_10] and shown by the [NAME_23] to the claimant in February 2023, (pp463A to 463E). We accepted that it was a reasonable instruction letter raising concerns. The claimant’s manager had to be frank for reasons of safety not only to service users and colleagues, but importantly to support the claimant herself. It identifies adjustments already provided (which went beyond those set out in the RAP

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26 dated 7 February 2023). They explain the requirement of autonomy and self- reliance for the role and identified the difficulties that the claimant was experiencing.

151. It may have been difficult for the claimant to read in terms of content, but it could not be considered as having the purpose or effect of violating the claimant’s dignity or creating an intimidating or hostile etc’ environment for the claimant. It was necessary for [NAME_10] to be clear with [NAME_23] and it would be unhelpful to the claimant for her managers to downplay any issues as it might prevent best advice being given.

Allegation 2.1.4

152. [NAME_6] did not take part in any covert and/or directed surveillance of the claimant’s [NAME_34] account and she was referred to the offending post by a third party. Any subsequent searches on [NAME_34] against the claimant’s name were entirely appropriate. The matter was referred to [NAME_10] and as both a [NAME_4] and a manager, she needed to act upon the claimant’s behaviour. The claimant subsequently accepted her post had been unacceptable. This event did not happen as alleged, and the claimant’s treatment had nothing to do with her disability. The claimant was fortunate with the actual conduct of management, given that the Trust dealt with vulnerable people from diverse backgrounds including migrants and her ill- informed and potentially inflammatory message. The Trust effectively gave her a second chance using a reflective statement rather than a formal disciplinary hearing.

153. This cannot reasonably be considered unwanted behaviour as it was a reaction to the claimant’s post and any subsequent search of [NAME_34] will not have the purpose or effect of violating the claimant’s dignity etc’.

Allegation 2.1.5

154. The Tribunal concluded that neither [NAME_10] nor [NAME_40] behaved in a way that was inappropriate and simply raised issues which were reasonable considering the concerns that had become apparent regarding the claimant’s performance.

155. What they said may have been frank but was not related to the claimant’s disability as such, but because of her general attitude and performance. In any event, it could not reasonably be considered (while unwanted on the claimant’s part), to be behaviour which had the purpose or effect of violating the claimant’s dignity etc’. On a training programme such as this for a challenging area of work dealing with safeguarding matters, it is vital for managers to behave in a clear and non-cryptic way and ‘reality checks’ when issues arise are a necessary part of the supervision and assessment process.

156. This was not a deliberate attempt to target or undermine the claimant, and we accepted that if the claimant really wanted to succeed, she would be

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27 encouraged to do so. Their concerns were raised because of several issues being identified since the beginning of 2023 (as described in the findings of fact above), which raised questions about the prospects of the claimant succeeding and her actual happiness in the programme.

Allegation 2.1.6

157. The Tribunal concluded that [NAME_10] did not shout across the office as alleged and on balance she would have spoken to the claimant in a more sensitive way prior to the beginning of her leave to put her mind at rest. Like the previous allegation, it did not relate to disability.

158. While the claimant believed [NAME_10] shouted as alleged, we did not agree. While she may have believed that it was unwanted behaviour, it cannot be reasonably considered to have had the purpose or effect of violating dignity or creating a hostile etc’ environment.

Direct discrimination

159. There are 5 allegations of treatment which the claimant says amount to direct discrimination 4.1.1 to 4.1.5

Allegation 4.1.1

160. This allegation concerning the lower scoring by [NAME_10] was found by the Tribunal to not be true. The interview for the permanent health visitor posts involved a fair process with a panel of which [NAME_10] was only one member. The same questions were asked of candidates and each panel member scored separately. [NAME_10] did not treat the claimant more harshly than the other panel members and there was simply no evidence that [NAME_10] had exerted pressure on the other panel members.

161. Any other 5 candidates interviewed for the permanent positions would have been scored the same as the claimant had they answered questions in the same way as the claimant. We concluded that each candidate was fairly scored, there were 5 available posts for 6 candidates and the highest scoring candidates won based upon better performance than the claimant. There was no evidence that the claimant’s disability played a part in the decision making. process.

Allegation 4.1.2

162. The Tribunal accepted the [COMPANY_28]’s credible and reliable evidence that the claimant had not reached a stage by July 2023, where she would be ready to begin the final 10 week consolidation period. The claimant admitted as much at the Tripartite meeting on 11 July 2023.

163. Based upon the claimant’s performance at this point, we found that any other student health visitor who did not have a disability would also have been refused to progress to consolidation until they achieved the necessary

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28 competencies. The [COMPANY_28] nonetheless tried to implement a plan that would extend the claimant’s contract (the Retrieval plan), but unfortunately the claimant was unable to achieve the minimum requirement to proceed to consolidation.

164. There was no less favourable treatment of the claimant by reason of her disability.

Allegation 4.1.3

165. This allegation was not true in the sense that [NAME_13] was impeding the claimant from submitting her prescribing portfolio. [NAME_13] as Operations Manager, had to sign off the portfolio and could not permit it to be submitted until she was satisfied that it was complete and in order. There was no evidence that she reached this decision incorrectly and any other trainee with the same problems with their portfolio would have been treated in exactly the same way.

166. As with the other allegations of direct discrimination above, there was no less favourable treatment by reason of disability.

Allegation 4.1.4

167. The claimant was dismissed at the end of a fixed term contract. Attempts were made by managers to extend the contract to allow the claimant additional time to complete consolidation and move to Warrington as she requested. Any other student in these circumstances would also have found their contract being terminated and potentially without any extension being attempted, unlike the claimant.

168. The Tribunal finds that with this allegation, the claimant was not treated less favourably than any of her fellow trainees would have been treated, it did not relate to disability and direct discrimination is not made out.

Allegation 4.1.5

169. The reference provided by the Trust to the [NAME_39] was largely factual. The claimant was not yet employed by them, but subject to a conditional offer. There was no less favourable treatment compared with any other unsuccessful health visitor trainee in the same circumstances.

170. The claimant was afforded a fair reference and the answer that the Trust would not reemploy her in trainee health visitor role was a reasonable one to make. It did not relate to the claimant’s disability but rather her failure to achieve the necessary performance.

171. It should be noted that the Trust did not say that they would not employ her in future for any role at all and did not refer to the internal capability process.

Case No. 2407869/2023 & 2410886/2023

29 172. There had also been by this time, a reference to the Nursing and Midwifery Council (NMC), which had made an interim order on 16 January 2024. It had a significant impact because it required the claimant to be at all times working on the same shift as a registered [NAME_4] of band 6 or above for a period of 18 months.

173. While no evidence was heard from the [NAME_39] concerning their reasons for rescinding the job offer, it is entirely possible that this NMC order would have been a material factor in its withdrawal, (pp1238-1241). .

Reasonable adjustments (sections 20 & 21 EQA 2010)

174. The Tribunal noted that the claimant did not seek to argue that her reasonable adjustments complaint included any duty under section 20(4) (physical features), or section 20(5) (auxiliary aids) EQA 2010.

175. Instead, the claimant relied upon the first duty under section 20(3) EQA 2010 involving alleged provisions, criterion or practices (PCPs), substantial disadvantage and reasonable adjustments.

176. In terms of some of the allegations, the Tribunal did consider that the claimant could have relied upon the duty to provide auxiliary aids in relation to the provision of screens/cables. However, as will be seen below, we have dealt with this and other matters within the issues as advanced by the claimant in accordance with section 20(3).

Provision, Criterion or Practice (PCP) – 5 asserted (section 20 EQA 2010)

177. PCP1 - involved requiring student health visitors to fulfil role of student health visitor. As [NAME_3] submitted, this is an obvious provision of the claimant’s role.

178. PCP2 – involved requiring student health visitor to have a mentor. No such role was provided within the health visitor training programme, but effectively equivalent support was provided to the claimant with the use of assessors and supervisors.

179. PCP3 - involved the claimant being provided with a laptop which she described as a ‘mini laptop’ and which the Tribunal understood to have limited portals so that a range of cables could be docked. This would include the cables used for the large screen. This was an ongoing problem for the claimant once the adjustment of a large screen was identified. The Tribunal accepted that this PCP applied

180. PCP4 - involved a failure to provide headphones. It is accepted that there was a practice of not providing noise cancelling headphones. However, we observed that the claimant worked in an environment which included not only working in an office with low levels of noise but also attending clinics and home visits where being able to hear others would be important and noise cancelling headphones could impair effective performance.

Case No. 2407869/2023 & 2410886/2023

30

181. PCP5 – this is not accepted because the [COMPANY_28] made coloured paper available and the claimant was told other colours could be ordered if a suitable shade was not available.

182. PCP6. There was no such provision, criterion or practice existing that student health visitors should not be given two visits a day. There were plenty of opportunities during the programme when they were available. There was no actual refusal or resistance from the [COMPANY_28] concerning students being offered two visits per day. This also applied to [NAME_41] in that there was no provision, criterion or practice to not give students access to baby clinics.

183. PCP8. There was no evidence that risk assessments were not undertaken and this does not amount to a well-founded provision, criterion or practice. There was no evidence before this Tribunal to suggest the [COMPANY_28] was ignoring its health and safety responsibility. The claimant did not cross examine witnesses as to how and when risk assessments took place.

Substantial disadvantage

184. Essentially the claimant was recognised as having impairments in that reading, writing and numerology/calculations could be more challenging for her. Where those impairments placed her at a substantial disadvantage the [COMPANY_28] did seek to meet them. However, as will be described below, there was an instance where there was a delay in their provision.

185. The Tribunal accepted however, in terms of matters such as completing work, processing and interpreting data and over stimulation from noise, her specific learning disorders placed the claimant at a substantial disadvantage which did require some support.

Reasonable adjustments

186. In relation to reasonable adjustment 1 (allegation 3.5.1), the [COMPANY_28] was aware of the claimant’s impairments and allowed her more time, including action plan, support from supervisor, access to software such Dragon Dictate.

187. In relation to reasonable adjustment 2 (allegation 3.5.2), it is correct that nobody was provided as an identified mentor. But in practical terms, this adjustment was provided in that a supervisor and assessor was always available to the claimant. All qualified health visitors were considered supervisors and could step into shoes of the designated supervisor if they were not available at the relevant time. There was no persuasive evidence before the Tribunal, that any of these staff failed in that role. All students required supervision. The claimant wanted a named supervisor when she started the programme in September 2022. Unfortunately, her designated one was off sick and alternatives were provided during the interim period. [NAME_6] acted as assessor and supervisor and moved desks in October 2022

Case No. 2407869/2023 & 2410886/2023

31 so that the claimant would sit next to her. By 2023, [NAME_15] was acting as the claimant’s supervisor.

188. In relation to reasonable adjustments 3, 4 and 5 (allegations 3.5.3, 4 & 5), the claimant was provided with all the equipment she needed in Widnes by February 2023. It took some time for all of the adjustments to be identified and provided because the claimant failed to complete her RAP form until 7 February 2023.

189. This provision of adjustments continued until her employment ended. However, when she moved to Runcorn on 28 May 2023, there was a delay in providing a suitable cable to fit her ‘mini laptop’ when managers obtained the new larger screen as required by the claimant.

190. This meant that effectively the claimant was unable to use the larger screen for a period of more than 6 weeks until this was resolved by the [COMPANY_28] by 16 July 2023. The claimant had been asked to speak with IT regarding an appropriate cable in the meantime and whilst it might have been seen as reasonable for management to leave this to her, no supervision or monitoring of this matter appeared to have taken place and the issue remained unresolved for many weeks. When the claimant moved from Widnes to Runcorn, there was a failure to ensure that all of her equipment to assist with adjustments for her role moved with her which led to the delay taking place.

191. It was unreasonable to expect the claimant to source the cable herself, and we concluded that there was a failure to provide the reasonable adjustment for the screen (3.5.3) in the sense that a large screen would have been wholly useless without a suitable cable to connect to the claimant’s laptop.

192. However, while this amounted to a failure to make a reasonable adjustment, it was a relatively minor incident, and our overall conclusion is that it would have played no part in the claimant’s failure to complete the programme. She had been subject to an action plan for several months and once the correct cable had been sourced, the claimant was unable to demonstrate improvement to proceed to the consolidation plan.

193. Other than that, the Tribunal concluded that at the material time, the relevant adjustments in terms of equipment were provided in accordance with the PCPs.

194. The two visits and baby clinic adjustments were restatements of PCPs 6 and 7. They did not arise from PCPs 3.2.6 and 3.2.7, or feature of the job description overall. The claimant was required as part of her Action Plan to have evidence of visits and baby clinics. They were available as part of her training throughout the programme and there was no evidence that the way that the way and the frequency in which they were provided placed the claimant at a substantial disadvantage.

Case No. 2407869/2023 & 2410886/2023

32 195. It became clear to her in May 2023 that she needed to provide evidence of home visits and visits to baby clinics to demonstrate that she could practice this activity safely. The claimant had opportunities and sufficient repetition of these activities prior to her being placed on capability in July 2023. She had displayed difficulties in being able to demonstrate she could do unsupervised visits.

196. Even if such a duty arose, based upon the claimant’s performance prior to the capability process was such that these adjustments if made would not have resulted in her demonstrating competency and being able to proceed to consolidation period. The claimant had had plenty of time to carry out repetition during the year so far and once in Runcorn she was taken to visits and clinics when available.

197. The Tribunal did not accept that PCP 8 (3.2.8), was an actual PCP. In terms of providing a formal Workplace Assessment, we concluded that the claimant and her workplace were subjected to constant assessments during 2023. This was a dynamic management process and involved regular meetings with the claimant and also Tripartite meetings including the university. When the formal Workplace Assessment took place, it did not recommend anything different, so in substance, it had already been provided with adjustments being made as required. It is therefore concluded that there was no failure to effectively provide a meaningful workplace assessment during 2023.

Victimisation (section 27 EQA 2010)

198. The claimant relies upon three protected acts. They were all grievances and they were raised on 18 May 2023 (p578), 24 July 2023 and 25 August 2023. They all referred to matters involving the claimant’s disability and the [COMPANY_28] accepts that they amounted to protected acts under section 27(1)(a). These were occasions where the [COMPANY_28] became aware of the protected act when the grievances were presented and not because they believed the claimant may raise a grievance or do any other protected act as described by section 27(1)(b).

199. This is particularly important in relation to detriment 1 (allegation 5.2.1), where the claimant believed that the holding of the claimant’s mid-term review meeting without the claimant being present on 17 May 2023 was because of her first grievance. The claimant appeared to recognise during her evidence and during submissions that this was a flawed allegation but declined to withdraw it. It clearly precedes all the grievances and must fail.

200. The claimant’s allegation that she was only given 4 days to complete the action plan was incorrect, (detriment 2 – allegation 5.2.2). She had been given several months before she moved to Runcorn and had displayed insufficient progress. She was not being asked to complete the plan in any event and was instead expected to demonstrate progress in respect of what it had set as goals. The Tribunal preferred [NAME_14]’s evidence concerning this allegation and her emphasis that the claimant was being asked to show

Case No. 2407869/2023 & 2410886/2023

33 progress rather than completion of the plan. Significantly, however, the claimant failed to demonstrate that the alleged detriment was motivated by the disclosure made 18 May 2023.

201. It is correct that the claimant was placed on capability under the [COMPANY_28]’s capability policy in July (not June) 2023 (detriment 3 – allegation 5.2.3). But it arose from performance issues and not the protected disclosures made at that time. This also applied to the alleged detriments 4 (allegation 5.2.4), detriment 5 (allegation 5.2.5), detriment 7 (allegation 5.2.7) or detriment 8 (allegation 5.2.8). Each detriment arose from reasonable and appropriate management decisions based upon the claimant’s performance and demonstrated level of competence at the relevant time. The grievances did not play a role in the decisions that were alleged and which did take place.

202. However, the final detriment not yet covered in this section is detriment 6 (allegation 5.2.6). This involves the claimant’s allegation that she was only given negative feedback by [NAME_13] and [NAME_12] during her visits that took place while at Runcorn from 28 May to 18 August 2023. As submitted by [NAME_3], we noted that the claimant did concede that some positive feedback was actually received and the witnesses in question did not give evidence that suggested that the allegation was correct. Ultimately, the claimant was being supervised and assessed by managers who had to describe what they observed, ensure that the claimant understood how she was progressing. There was no evidence that any feedback, negative or otherwise, arose from the protected disclosures that had been made.

203. Consequently, the victimisation complaint must fail.

Conclusion

204. The Tribunal gave some thought to the overall context of this case and concluded that unfortunately, the claimant was struggling in a job for which she was not suited for (during the material time to which this case relates). Indeed, during her evidence she recognised that this was the case.

205. It was clear that that claimant was struggling with the health visitor trainee role from the outset, but efforts were made by management to support her throughout. The claimant adopted an approach that it was one more adjustment that would enable her to succeed, but considering the evidence and all of the circumstances, the problem was that the role was too challenging for her at that time. Undoubtedly, she had considerable experience as a [NAME_4] in a hospital environment but was unable to make the leap to what was a very different job compared with what she had done before. The health visitor role appeared to be one which not only involved nursing roles associated with parents and children, but also an element of social work with the ability to engage with service users while always being mindful of safeguarding issues. Many of the services users could be vulnerable and this placed huge responsibility upon the health visitor, who would usually be working alone.

Case No. 2407869/2023 & 2410886/2023

34 206. What was evident to the Tribunal was that her supervisors, assessors and managers really wanted her to succeed and provided as much time and support as they reasonably could. This was demonstrated by the convincing evidence from the [COMPANY_28] witnesses regarding what steps they took to support the claimant and the fact that many of them experienced stress related conditions in trying to assist and encourage her to succeed. As often happens, it is not only claimants who can become victims in employee relations issues.

207. Accordingly, the decision of the Tribunal is as follows:

a) The complaint of harassment by reason of disability under section 26 Equality Act 2010 is not well founded and is dismissed;

b) The complaint of direct discrimination by reason of disability under section 13 Equality Act 2010 is not well founded and is dismissed;

c) The complaint of a failure by the [COMPANY_28] to make reasonable adjustments contrary to sections 20 & 21 Equality Act 2010 is:

i) well founded and succeeds, but only in relation to allegation 3.5.3 in that the claimant was not provided with a usable larger screen following her move to Runcorn on 28 May 2023 and until 16 July 2023 when a cable was provided, and;

ii) the remainder of the claim that there has been a failure to make reasonable adjustments (allegations 3.5.1, 3.5.2, 3.5.4, 3.5.5, 3.5.6, 3.5.6, 3.5.7 and 3.5.8), is not well founded and is unsuccessful.

d) The complaint of victimisation contrary to section 27 Equality Act 2010 is not well founded and is dismissed.

208. The successful complaint of a failure to make reasonable adjustments will now proceed to a remedy hearing which will be listed before the same panel for 1 day. However, while the claimant may provide an updated schedule of loss and witness statement in support of her successful claim relating to her injury to feelings, she should adopt a proportionate approach.

209. As explained above, the Tribunal did not find that this failure to make reasonable adjustments for the relatively short period identified within allegation 3.5.3 affected the claimant’s failure to complete the trainee health visitor programme. Consequently, it is unlikely that the claimant will recover any loss of earnings or anything more than a modest injury to feelings award. In the case of the latter, the claimant would need to persuade the Tribunal that the 6 week failure to provide the cable actually caused an injury to feelings.

Case No. 2407869/2023 & 2410886/2023

35

_____________________________

Employment Judge Johnson

Date___11 March 2026___________

JUDGMENT SENT TO THE PARTIES ON

27 April 2026

FOR THE TRIBUNAL OFFICE

Notes

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and [COMPANY_28](s) in a case.

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Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

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