Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    605/13

 

 

 

CLAIMANT:                    Hilary Sloan

 

 

RESPONDENT:            South Eastern Health and Social Care Trust

 

 

 

DECISION

 

It is the unanimous decision of the tribunal that the claimant was not discriminated against on account of her disability.  All of her claims are therefore dismissed.

 

 

Constitution of Tribunal:

 

Chairman:                      Ms W A Crooke

 

Members:                       Mr A White

                                          Mr J Kinnear

                                         

 

 

Appearances:

 

The claimant appeared in person and represented herself.

 

The respondent was represented by Mr E McArdle, Barrister-at-Law, instructed by the Directorate of Legal Services.

 

 

SOURCES OF EVIDENCE

 

1.            The tribunal heard evidence from the claimant on her own behalf.  She also called Mr Steven McSherry of the Royal College of Nursing who was her representative in her dealings with the respondent Trust.

 

2.            The respondent called the following witnesses:-

 

Barbara Hanna          -         A Band 7 Nurse who was the claimant’s line manager.

 

Gail McKeown           -         A Band 6 Physiotherapist who fills this post as a job-share with the following witness.

 

Dr Jan McDowell       -         A Band 6 Physiotherapist who job-shares with Gail McKeown.

 

Elaine Jackson          -         A Band 7 Nurse who was a member of the Respiratory Team in which the claimant worked but based at the Lagan Valley Hospital at which she ran five clinics per week.

 

Robert Moore             -         The line manager to Barbara Hanna and consequently second tier line manager to the claimant.  He has the post of Lead Nurse for Primary Care Specialist Nursing, Community Nursing, Rapid Response and ICATS.

 

Catriona Briers           -         Ms Briers was not a member of the team in which the claimant normally worked.  She was Lead Nurse of the Community Nursing Rapid Response Service (hereinafter referred to as CNRRS or the Rapid Response team).  This was a service for which the claimant worked “bank” shifts. 

 

Julie Dyer                   -         A Human Resources Officer in the Advisory Team branch of the Human Resources Department of the respondent.

 

Alison Andrews         -         The Human Resources Manager of the Advisory Services Team.

 

Martin O’Toole           -         Human Resources Manager of the Employee Relations Team.

 

Claire Smith               -         Human Resources Business Partner.

 

Leona Kincade          -         A Human Resources Advisor dealing with staff who are absent on sick leave, responsible to Alison Andrews.

 

3.            Additionally the tribunal also had a substantial bundle of documentation and, on the request of the claimant, various Trust policies were made available during the course of the hearing. 

 

 

THE CLAIM AND THE DEFENCE

 

4.            The claimant made the following claims all under the Disability Discrimination Act 1995 (as amended):-

 

a.            Direct Discrimination;

 

b.            Discrimination based on a disability related reason;

 

c.            Reasonable adjustment failures;

 

d.            Harassment on grounds of disability; and

 

e.            Victimisation.

 

The respondent denied all these claims.

 

 

PRELIMINARY MATTERS

 

5.            At the outset Mr McArdle invited the claimant to release Barbara Hanna, Elaine Jackson, Robert Moore, Alison Andrews and Julie Dyer as parties to the proceedings.  The difference between releasing persons as parties and releasing them or not calling them as witnesses caused some difficulty to the claimant both at this stage and at a later stage in the hearing, but she agreed to do so and the tribunal acceded to Mr McArdle’s application to amend the title to the proceedings to show the first respondent as the sole respondent on the grounds that if any of the other named individuals were found to have discriminated against the claimant, the first respondent would have been vicariously liable for any such acts.

 

6.            At the outset the tribunal also dealt with two issues regarding documentation in the bundle.  The first document was described by the claimant as a “Daily Log”.  Mr McArdle objected to the use of this daily log as he expressed strong doubts over whether or not the document was contemporaneous.  Whilst many of the entries were labelled in a date specific way some of them were not.  The tribunal made no decision on the veracity of the entries but preferred to primarily work from the claimant’s witness statement.  It reminded her that the purpose of the witness statement was to have a full statement of the evidence that she was to give.  The tribunal read the daily log but has not placed any weight upon it as this did not appear to be necessary to a full hearing of the claimant’s claims.  The tribunal had reference to the claimant’s claim to the tribunal dated 13 March 2013 which was some 68 pages in length in addition to the claimant’s witness statement.

 

7.            The other documentary issue concerned the inclusion in the bundle of letters from patients the claimant had treated, other health care professionals with whom the claimant had worked and the claimant’s son.  The tribunal had concerns at the inclusion of such material in the bundle.  The main concern was that of relevance.  If any of these items, which the tribunal read, had proved to be an account of any of the incidents about which the claimant complained in her ET1 form and her witness statements, the tribunal could readily have understood its inclusion in the bundle.  However the letters from former patients and other health care professionals who had worked with the claimant did not fall into this category of documentation, but rather seemed to the tribunal to constitute a number of character references.

 

8.            The concerns of the tribunal were heightened whenever the claimant indicated that not only did she require these documents to be considered as part of the evidence but also that she wished to call as witnesses on her behalf her son and a relative of a deceased patient.  The tribunal was concerned that the claimant had raised this issue again as it had already been ruled on by Ms McCaffrey in the Case Management stages of the hearing.  Aside from the issue of relevance, the tribunal was reluctant to add any further witnesses who were not absolutely necessary to the proper presentation of the claimant’s claims of disability discrimination to an already long list of witnesses.  Finally the tribunal saw that there was a considerable risk that it was being asked to decide upon various issues of professional nursing practice.  The tribunal explained that this was not the function of an industrial tribunal and indeed repeated this caution to the claimant on a number of occasions throughout the hearing.  The claimant is facing an enquiry into her “practice” and the tribunal indicated that it was not prepared to allow the hearing to stray into a consideration of issues that were more properly in the jurisdiction of that investigatory body. 

 

9.            The tribunal gave the claimant an opportunity to consider whether she wished to persist in her desire to apply to introduce these documents/witnesses and after consideration the claimant did not proceed with that application.  Having read these documents, the tribunal considers that no weight can be attached to them simply as they were not relevant to the issues complained of by the claimant.

 

10.         The respondent accepted that the claimant was a disabled person for the purposes of the Disability Discrimination Act 1995 (as amended) shortly after the start of the second day of the hearing.

 

 

THE VICTIMISATION CLAIM AND THE UNLAWFUL DEDUCTIONS OF WAGES CLAIM

 

11.         On a number of occasions throughout the hearing the tribunal urged the claimant to consider the list of issues set out in the record of the Case Management Discussion dated 24 June 2013.  The general purpose of this direction was to make sure that evidence was adduced to cover all the issues about which the claimant was complaining.  One such issue centred around the claim of victimisation set out at point 1.3 of the Case Management notes.  The law relating to victimisation is dealt with in Section 55 of the Disability Discrimination Act 1995.  This Section states:

 

55. (1)     For the purposes of Part II or Part III, a person ‘A’ discriminates against another person ‘B’ if –

 

(a)   he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and

 

(b)   he does so for a reason mentioned in subsection (2).

 

(2)     The reasons are that –

 

(a)   B has  

 

(i)           brought proceedings against A or any other person under this Act; or

 

(ii)          given evidence or information in connection with such proceedings brought by any person; or

 

(iii)         otherwise done anything under this Act in relation to A or any other person; or

 

(iv)         alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or

 

(b)   A believes or suspects that B has done or intends to do any of those things.

 

(3)     Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a). 

 

(4)     Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith.

 

12.         This claim appeared to the tribunal to centre around the alleged withholding of bank shifts from the claimant by Ms Catriona Briers who was the Lead Nurse of the CNRRS Service.  The claimant contended that she had supported a colleague against Ms Briers in a grievance brought by that colleague which was not in any way related to any sort of discrimination.  The claimant was given an opportunity to consider the definition of a protected act necessary to ground a victimisation claim and in her written submissions to the tribunal at the close of the case accepted that she could not fulfil the definition of the protected act that was set out in Section 55(2).  The tribunal deemed this a withdrawal of this claim.

 

13.         The tribunal noted from the Case Management notes that the fourth legal issue was “whether the claimant has suffered an unlawful deduction of wages by reason of an alleged loss of bank nursing hours?”  The claimant did not refer to this claim in her submissions but for the avoidance of doubt the tribunal is satisfied with the respondent’s evidence that the claimant did not suffer any improper withdrawal of bank nursing shifts.  The evidence was very much to the contrary.  As the claimant worked in the same building as the CNRRS for her normal job with the Community Respiratory Team, she appeared to be first in line after the CNRRS team members in the allocation of bank shifts.  The uncontroverted evidence was that the claimant had received a generous allocation of shifts and when no shifts were offered it was because there was no requirement for bank shift nursing in the CNRRS team.  The tribunal is satisfied that this claim is not well-founded and accordingly dismisses it.

 

 

THE TYPES OF CLAIM BROUGHT BY THE CLAIMANT

 

14.         A.        Direct Discrimination;

 

B.        Discrimination based on a disability related reason;

 

C.        A failure to make reasonable adjustments; and

 

D.        Harassment on grounds of disability.

 

 

THE RELEVANT LAW

 

15.         The law in relation to these various disability type claims is found in the following sections of the Disability Discrimination Act 1995 (as amended).

 

Less Favourable Treatment

 

3A. (1)     For the purposes of this Part, a person discriminates against a disabled person if –

 

                 (a)     for a reason which relates to the disabled person’s disability, he treats him less favourably that he treats or would treat others to whom that reason does not or would not apply, and

 

                 (b)     he cannot show that the treatment in question is justified. 

 

       (2)     For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

 

       (3)     Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

 

       (4)     But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5). 

 

       (5)     A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats a disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person. 

 

       (6)     If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under
subsection (3) unless it would have been justified even if he had complied with that duty.

 

3A. (2)     Reasonable Adjustments

 

       (2)     For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person. 

 

4A.          Employers: duty to make adjustments

 

       (1)     Where –

 

                 (a)     a provision, criterion or practice applied by or on behalf of the employer, or

 

                 (b)     any physical feature of premises occupied by the employer,

 

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature from having that effect.

 

 

MEANING OF HARASSMENT

 

16.         3B.(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of –

 

(a)violating the disabled person’s dignity, or

 

(b)    creating an intimidating, hostile, degrading, humiliating or offensive   environment for him.

 

            (2)       Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.

 

17.         The tribunal also referred to various items of case law in reaching its decision and these are set out in the body of the decision.

 

 

THE FACTS FOUND

 

18.       Background

 

In January 2006 Ms Barbara Hanna commenced her post of Respiratory Specialist Practice Nurse in the Lisburn Community.  The Respiratory Service (which is referred to in this decision interchangeably as the Respiratory Service or Respiratory Team was a new service so she spent the first three months developing it.  The physiotherapist position was appointed in September 2006 and took the form of two physiotherapists job-sharing.  The Respiratory Team is a multi disciplinary community team which operates out of the Whitehouse at Lagan Valley Hospital.  Ms Hanna was the manager of the team, reporting directly to Mr Robert Moore, Lead Nurse for Specialist Nursing.   

 

19.       The purpose of the Respiratory Service is to manage patients with respiratory conditions in their own homes and, where possible, avoid hospital admission.  The patients are initially referred to the Service from another health care professional such as a general practitioner, hospital consultant, hospital nurse or  physiotherapist for example, but without prejudice to the generality of the foregoing.  The nature of the conditions of the patients dealt with by this Service is chronic so when they have stable periods it may be that no contact is required from the Service.  Patients can self-refer when unwell and this service ensures a visit is carried out the day they telephone.  Patients are cared for at the palliative stage of their condition involving the District Sister and other members of a multidisciplinary team as required.  All patients on home oxygen are known to this Service.  A Pulmonary Rehabilitation Programme is carried out by the Respiratory Team twice a week for six weeks and a weekly maintenance class is also run for patients who have completed the six week programme.

 

20.       The Respiratory Team initially consisted of Ms Barbara Hanna, a Band 7 Respiratory Nurse Specialist (full-time) and Ms Gail McKeown and Ms (later Dr) Jan McDowell, two Band 6 physiotherapists initially job-sharing.  Ms Elaine Jackson who was also a member of the team was a Respiratory Nurse Specialist Band 7 in Lagan Valley Hospital reporting to Ms Brenda Arthurs, Clinical Nurse Manager in the Medical Directorate.  The acute/community relationship developed with Ms Jackson and the Respiratory Consultant, Dr Tate, is vital for the patients to ensure a smooth journey for the patient from hospital to community or vice-versa.  The claimant joined the Respiratory Team in November 2007 as a Band 5 Nurse on 18.75 hours per week.  She had been offered the position from a District Nursing waiting list.  After she was appointed, she continued to work one night in the Royal Victoria Hospital in the Cardiology Ward for a number of months.  Her role as a Band 5 Nurse in the team was to assess, develop, implement and evaluate patient/client care in the home, under the guideline of the Respiratory Nurse Specialist (Ms Hanna).  The claimant was allocated a number of patients to see daily and was required to report back her findings to Ms Hanna.  Each patient has a set of notes to accurately record their assessment and care plan and evaluation.  Vital signs are also recorded on each visit and documented on the observation chart in the patient notes.  The claimant was also required to attend Pulmonary Rehabilitation Classes and she attended the Chronic Obstructive Pulmonary Disease Course at Queens University to update her knowledge as her nursing background lay in the field of cardiology.  The claimant was given additional hours on a temporary basis in 2009/2010 to cover Ms Hanna’s secondment to a tele health post two days per week and that brought her hours up temporarily to 30 hours per week.  After this, she was also given additional hours to help the Physiotherapist, Dr Jan McDowell, with her tele health research in 2010.  The claimant also worked bank shifts with the Community Nursing Rapid Response team (hereinafter called CNRRS) from 2009 to 2012.  The Respiratory Team and the CNRRS both operated out of the same building - the Whitehouse.

 

 

THE NATURE OF THE CLAIMANT’S CONDITION

 

21.       At the very start of the claimant coming to work in the Respiratory Team, the claimant already had depression and she shared this information with her supervisor, Ms Hanna.  She was always keen to work extra hours and never complained about her depression in the course of her day-to-day work relationship with Ms Hanna.  The issue of the claimant’s depression will be dealt with in the context of her overall condition as she did not seek to claim that her depression constituted a freestanding disability.

 

22.       The claimant was diagnosed with haemochromatosis in December 2009.  This is a genetic condition causing the body to absorb an excessive amount of iron from the diet.  This is deposited in various organs of the body but mainly the liver.  This can cause very serious damage and is a progressive condition.  The symptoms of this condition are as follows:-

 

Chronic fatigue; lethargy; abdominal pain; joint pain; muscle pain; depression; stress and anxiety and disturbed sleep. 

 

The claimant also has liver disease.

 

 

THE CLAIMANT’S DAUGHTER

 

23.       The claimant has a young daughter who has a disability.

 

 

THE NATURE OF THE CLAIMANT’S MEDICAL TREATMENT

 

24.       The tribunal considers that it is unnecessary to describe the claimant’s particular symptoms in detail as the respondent accepted (after the start of the hearing) that the claimant was a disabled person and there was no challenge to the nature of the diagnosis.  However, the tribunal considers it necessary to find facts concerning the nature of the claimant’s hospital intervention to set the circumstances of this case properly in context.  The claimant's condition is treated by the removal of blood or Venesection.  Blood is removed both for the purpose of analysis and to avoid a build-up of iron.  After diagnosis in December 2009 this procedure was carried out twice weekly and then monthly.  The claimant has found this procedure very painful and there have been difficulties in getting access through her veins to her blood supply to such an extent that the treatment had to stop for a period of time.  At the time of hearing, the Venesection is carried out every three months.  If iron was allowed to build up it could further damage her liver.  In the days after the procedure the claimant is left feeling very tired and washed out and this can last for two to three days.  This in turn has led to only half a unit (about 250 mls) being removed or venesected at a time.  The claimant’s white blood cell count has also been low following the Venesection procedure and this has necessitated her attending Haematology for further investigations.

 

25.       The claimant’s treatment regime for her liver disease requires her to attend her Hepatologist, Dr Neil McDougall, every three to four months.  Three liver biopsies have been required since her diagnosis in 2009 with the third taking place considerably ahead of schedule, in January 2013.  The liver condition is likely to progress and the rate of fibrosis could increase possibly developing into cirrhosis.  The claimant’s health difficulties are serious and complex.

 

26.       The events which have given rise to this case have taken place over a prolonged period (from in and around February/March 2009 to (at least) December 2012) and they involve a range of individuals in the employment of the respondent Trust.  Often more than one individual is the subject of complaint by the claimant and often a course of conduct against the claimant has been alleged.  Some of the events described are capable of having more than one categorisation of claim attached to them.  We will set out the events/complaints and will consider them with reference to the Disability Discrimination Act 1995 (as amended) both singly and as an overall course of conduct against the claimant.

 

27.       In February 2009, Ms Hanna arranged for the claimant to attend a round of patient visits with her as she had some concerns about the claimant’s “practice”.  The claimant said that Ms Hanna was abrupt and Ms Hanna considered that the claimant was very angry and cross with her.  During a further supervision on 16 February 2009 the claimant disagreed with Ms Hanna’s concerns and advised her that they would have to “agree to disagree”.

 

28.       This interaction in February 2009 was repeated in March 2009 with an incident that took place during a leave period of Ms Hanna which involved Ms Gail McKeown.  Hereafter in the decision patients will not be identified by name.  Neither will the doctors involved in “practice” issues be identified by name.  Ms McKeown had become concerned that the claimant had become too personally involved with the family of a male patient.  It appeared to Ms McKeown that not only had the claimant been carrying out procedures beyond her remit, but had actually spent the greater part of St Patrick’s Day (a holiday) in this patient’s house.  Moreover, it appeared that she had “arranged” with a doctor - for a pump to be started.  It was not denied by the claimant that after she had been withdrawn from the care of this individual by Ms McKeown, she continued to visit his home in a professional capacity.  District nurses charged with this patient’s care raised serious concerns about the activities of the claimant.  Ms McKeown indicated to the claimant that she was at risk of being disciplined.  This situation was later reviewed by the whole Respiratory Team as a critical incident.  One, but by no means the only concern expressed by Ms McKeown was that the claimant had put up IV fluids herself off duty.  After this incident the claimant developed difficulties with her relationship, which had previously been one of personal friendship as well as professional interaction, with Ms McKeown.  Ms McKeown considered that the claimant had greatly exceeded her remit by arranging with the doctor - for a syringe driver to be installed.  This item of equipment was about 10 steps ahead of where the patient’s condition would merit it and should not have been actioned by the claimant but rather:-

 

            (a)       discussed with the team; and

 

            (b)       discussed with the patient’s General Practitioner and Consultant.

 

            After this incident, the claimant essentially treated Ms McKeown with coldness, basically refusing to speak to her unless it was absolutely necessary.  This caused an atmosphere in the close-knit Respiratory Team.

 

29.       Later in the year of 2009 during clinical supervisions an issue arose over patients’ blood pressure.  As a Health Care professional from a cardiac background, the claimant considered the issue of blood pressure to be of huge importance.  She considered that a defibrillator should be available for use in the pulmonary rehabilitation classes.  The claimant had challenged Ms Jennifer Howard, a Band 7 physiotherapist, repeatedly on this issue, despite being told that this was not required by clinical guidelines.  This resulted in a heated exchange of words between Ms Howard and the claimant, and the claimant considered that she was unsupported by her team.  This issue dragged on at least to February 2010.

 

30.       As an adjustment to allow the claimant time to attend her medical appointments, her off-duty was agreed directly with her by Ms Hanna.  This was unusual.  In addition to the claimant’s core hours of 18.75 hours per week in the Respiratory Team, the claimant booked bank shifts with the CNRRS.  It was accepted by Ms Hanna that the claimant needed to attend these medical appointments, although she did feel upset when the claimant occasionally told her that she was going to an appointment without giving her prior notice.  The tribunal has noted that the claimant herself was often not given much notice of appointments.  The claimant was also allowed time to attend meetings at her daughter’s school or meetings relating to her daughter’s health.  From the evidence before us the tribunal is satisfied that Ms Hanna’s concern was to make sure that the Respiratory Service’s needs were covered.  In her evidence to the tribunal, the tribunal perceived a slight irritation at how much of an adjustment had to be made by the Respiratory Service in respect of the claimant’s appointments.  This related mainly to dental hygiene appointments which Ms Hanna did not understand to be part of the claimant’s list of required appointments.  This was not explained to Ms Hanna by the claimant and Ms Hanna, bluntly, was afraid to ask the claimant due to her ongoing adverse reaction towards Ms Hanna, in particular, at that time and the Respiratory Team in general.  This also related to the appointments where the claimant had to leave suddenly without due notice.  We did not detect anything in Ms Hanna’s reaction other than a concern to make sure the Service was covered.  From time-to-time, the claimant alleged that the respondent should have taken greater care to be informed as to her condition.  The tribunal perceived from the evidence of principally Ms Hanna, Ms McKeown and Ms Jackson that the claimant reacted badly to being asked about her condition.  The claimant also appeared upon occasion to resent the referrals to the Occupational Health Service.  This has led the tribunal to draw the inference that the claimant was not always co-operative towards her line of management and required considerable adjustments to be made for her situation without being prepared to discuss these fully with her line management.  The tribunal does not understand why this should be the case.  The claimant repeatedly made the point to the tribunal that she was an experienced Health Care professional and frequently stressed that the respondent should behave towards her with transparency.  There was little or no credible evidence before the tribunal to suggest that the claimant was prepared to reciprocate.  We will refer to selected examples of this lack of co-operation at a later stage in this decision.  It is settled law (at least in the area of unfair dismissal) that a respondent, when seeking to dismiss for ill-health, must consult with the employee’s medical advisors and with the employee herself.  This however takes for granted that there is an openness and co-operation by the employee in this process.  From the evidence the tribunal finds that the Respiratory Team members were afraid of trying to talk to Mrs Sloan about her conditions.  There was already an atmosphere in the team which was regarded by four of the chief witnesses as being caused by the claimant’s moodiness and lack of cooperation.  Ms Hanna and those who worked with her were struggling to keep the Respiratory Team covering the service which it was formed to provide and they took the option of trying to not make a bad situation any worse.

 

31.       In May 2010, the claimant once more caused concern by interfering with a patient on her round who was residing in Drumlough House.  She insisted that a doctor should be called to a patient who allegedly had difficulty in breathing.  This caused difficulty with the staff of Drumlough House.  All the while, the claimant’s alleged difficulties in her supervisions with Ms Hanna were continuing.  Matters reached a crisis on 22 June 2010 when Ms Hanna informed the claimant that she could no longer manage her.  Ms Hanna agreed that she had said that she could no longer manage her but did not accept that she had said to the claimant “You’re sick and you won’t go off”.  The claimant accused Ms Hanna of bullying and harassing her through the medium of the supervisions.

 

32.       The claimant had a meeting with Ms Hanna’s line manager on 2 July 2010.  Mr Moore tried to put an opposite point-of-view to the claimant concerning her difficulties with Ms Hanna and asked her to be very careful about making an allegation that she was being harassed and bullied by her.  The claimant considered that Mr Moore was not taking her concerns seriously.

 

33.       In July 2010, it came to the attention of those covering line management during Ms Hanna’s absence on holiday, that the claimant had behaved in a confrontational manner towards a general practitioner in connection with the question of whether a certain patient should be placed on a palliative care pathway.  Ms Jackson referred this to Ms McKeown and they were both concerned by the claimant’s reported manner of speaking to the doctor.  They indicated to her that this was not the appropriate way to deal with the situation.  There were procedures which had developed to cover situations such as these and that she was not to approach the doctor again.

 

34.       Ms McKeown spoke to the doctor in question and believed that she had dealt with the matter.  Against her line management direction the claimant personally approached the doctor and challenged her about the incident.  This incident marked the breakdown of her personal friendship with not only Ms Jackson, but also with Dr Jan McDowell.  These members of the team had enjoyed a degree of personal friendship with the claimant and now found that the claimant would not speak to them unless it was absolutely necessary for work purposes.  They were afraid to approach the claimant as they were deeply concerned as to how she might react.  This incident was also used by the claimant in her dealings with Ms Hanna.  She repeatedly asked Ms Hanna to do something about it.   Already struggling in her relationship with the claimant, Ms Hanna omitted to do so, suggesting that it would be better for the claimant to deal directly with Ms Jackson and Ms McKeown.  Eventually the claimant brought a grievance concerning this and other matters and it was heard on 13 March 2012.  The grievance hearing suggested that the claimant was not entirely blame free in her dealings in the matters about which the grievance was heard and that the claimant may have contributed to the conflict in the team.

 

35.       In September 2010 the claimant asked to be redeployed to another team and this was dealt with by the Human Resources team.  The claimant was given the following redeployment opportunities to consider:-

 

DATE	POST			PER WK
14/09/10	Staff Nurse	-	District Nursing, Bangor Admin	30 hrs
05/11/10	Treatment Room Nurse	-	Crumlin and Glenavy	16 hrs
21/12/10	Offered 2 permanent posts Band 5	-	Stewartstown Road Health Centre
15/02/11	Offered District Nursing post	-	Comber Health Centre	34 hrs
07/04/11	Offered post in Treatment Room	-	Stewartstown Road	16 hrs
21/04/11	Offered full-time post in District Nursing	-	Hillsborough
23/06/11	Public Health Staff Nurse B5	-	Greater Lisburn area	18.75 hrs
03/08/11	Offered Band 5 Nurse	-	Prison Health	37½ hrs
03/08/11	Offered Band 5 in Community Nursing	-	Ards locality	19 hrs

 

36.       None of these posts were accepted by the claimant for family reasons, although she contended strongly in the hearing that her working life in the Respiratory Team was highly unpleasant.  She contested that she was offered the Hillsborough post.  It was unclear whether this was in fact offered, but on the balance of probabilities, the tribunal considers that at the very least an approach was made to her to assess whether or not she would be interested in the post.  In the interim, the claimant remained on the redeployment list.

 

37.       The next significant event was a meeting that took place in the offices of the Royal College of Nursing in Belfast between the claimant, her union representative, Mr McSherry, Mr Robert Moore and Ms Hanna on 19 November 2010.  Nothing was resolved by this meeting and during the course of the meeting Mr Moore reported to the claimant that she was being referred to by her patients as the Nurse who had a daughter with a disability (the tribunal’s words).  Ms Hanna and Mr Moore contended that this showed that the claimant was overstepping professional boundaries in talking about her personal life.  The claimant took great exception to her daughter being mentioned citing this as an example of discrimination against her.  However, in her evidence to the tribunal it seemed clear that the basis of her complaint was that she was not being referred to in terms that reflected her professionalism, skill and caring attitude.  The point was later taken up in her submissions to the tribunal when she accepted that no grounds for a complaint under Disability Discrimination Law, howsoever framed, arose from these circumstances.  This being the case, the tribunal is not making any further more detailed findings about this allegation.

 

38.       In or around 14 March 2011, Mr Robert Moore became aware of a complaint against the claimant by Belfast Link Labs.  It appeared that the claimant had sent her own blood off to Belfast Link Labs for analysis using her own Royal Victoria Hospital number.  This was a number that the claimant had been given as a result of her work with the CNRRS.  Belfast Trust Link Labs revoked the claimant’s user name and password for blood tracking and suggested she should be disciplined.  Although this investigation of the claimant’s blood had not been authorised or originated by her general practitioner, Dr Hall, in his discussions with the
co-ordinator of Belfast Link Labs, requested that the matter be dealt with as “a quiet word in her ear” about self-prescribing.  No formal disciplinary proceedings were instituted and on 10 April 2011, Mr Moore met with the claimant to talk about this issue with her.  As the claimant’s bases of care for her various conditions were in three separate places, the claimant saw nothing wrong with accessing her own results contrary to the system’s rules.  As a result of the claimant’s ongoing bank shifts in the CNRRS, her access to the system was reinstated at her request in October 2011.  Tessa Hughes of the Belfast Link Labs reminded her that she was not to look up her own results.  This was confirmed by Mr Moore in an e-mail to the claimant on 24 October 2011.

 

39.       In or around 13 June 2011, the issue regarding the patient with pulmonary fibrosis arose.  It appeared to the tribunal that the claimant had seen this patient on the Tuesday of the same week (10 June 2011).   To set this incident in its proper context it is necessary for the tribunal to set out the nature of this condition.  Pulmonary fibrosis is a condition whereby the absorption of oxygen is very difficult and this renders the patient very breathless.  Oxygen saturation level is a measure of how the oxygen is being received by the patient in question.  The normal level is 99 to 100%.  However, in a pulmonary fibrosis patient the target saturation (how much oxygen is dissolved in the blood is 90% or at the very least in the high 80s).  Dr Jan McDowell was contacted by the claimant on 13 June 2011 for advice about this patient.  It transpired that the patient had significantly deteriorated since his discharge from hospital.  The reading informed Dr McDowell that this patient was hypoxic and cyanosed  -  he was not getting enough oxygen.  The claimant had administered oxygen to him through a nasal speculator.  This was a very uncomfortable method of providing oxygen to the patient who should have had a second oxygen concentrator installed in his home.  Dr McDowell considered that this incident revealed serious issues with the equipment used to treat this patient.  Instead of his family having to try to source the oxygen flow heads themselves, she was able to make them directly available from the Respiratory Team.  In short all the efforts that she was making to get more oxygen to this patient could have been in place from the Tuesday 10 June 2011 rather than waiting to 13 June 2011.  Dr McDowell considered that there had been no communication from the claimant to her senior staff to inform them that a very unwell patient with an unstable medical condition was in the community and needing help.  In fact this patient died a very short time later.  Dr McDowell was of the opinion that a free flowing oxygen mask would have been considerably more comfortable for this patient than receiving the oxygen through his nose.  An aggravating factor for Dr McDowell was that she was unable to make up the notes for the patient on the spot as the claimant had retained them and had taken them home with her.  Dr McDowell raised her concerns with Ms Hanna rather than speaking directly to the claimant as she was not her line manager.  This caused further resentment with the claimant.

 

40.       In June 2011, the incident regarding the use of the drug, Oramorph also took place.  The claimant requested this drug from a general practitioner in June 2011 for a female patient.  Once again she did not discuss this with the Respiratory Team but contacted the patient’s doctor directly.  The general practitioner did not know this patient.  After discussion with Ms Hanna the patient did not continue with Oramorph.  The patient had been admitted to hospital a few times under the care of Dr Tate and he had not prescribed this.  The claimant asked Ms Hanna in October 2011 whether the patient should be started on Oramorph and Ms Hanna told her not to do so before she went on leave.  After Ms Hanna’s return from leave she was informed by Dr Jan McDowell that the claimant had once more started this patient on Oramorph.  She had not made a home visit to assess the patient.  She had not informed the patient’s general practitioner.  The claimant did not make a home visit to advise on the dose.  The patient was taking the original bottle (opened in June 2011).  This should have been discarded after being opened three months.  Ms Hanna informed the general practitioner involved, who had not been told of the claimant’s actions and did not want to represcribe Oramorph.  Ms Hanna filled in an Incident Report form (IR’).  Ms Hanna spoke to the claimant about this matter.  The claimant refused to accept the concerns of Ms Hanna, and was angry that an Incident Report had been filed.

 

41.       On 5 December 2011, the claimant met with Mr Moore and amongst other things discussed the issue with him how the claimant could have her supervision.  He also discussed an incident which had taken place in the Venesection Clinic.  The claimant agreed that there had been a complaint about her behaviour but contended that Mr Moore was trying to paint a picture of her being difficult to work with and once again referred to his comment about her being known as the nurse with the little girl with special needs.  At this meeting, Mr Moore produced a copy of the disciplinary policy to ask the claimant to look at it.  The claimant reacted in a shocked and stunned way and he put the policy away.

 

42.       In April 2012, Ms Hanna went off on sick leave.  She had been told by her Consultant that her ongoing difficulties were caused by stress.  Ms Hanna attributed this to the strain caused by claimant.  In her absence, Ms Elaine Jackson stepped in to provide some supervision from the nursing aspect for the claimant.  It was a subject of complaint by the claimant that she had not been consulted about this move.  The clinical witnesses before the tribunal were unanimous in considering that this consultation was something that was not done or required to be done or even contemplated, elsewhere in the respondent trust.  Even the minimal level of involvement of arranging the claimant’s off-duty with her caused the claimant to raise further complaints about Ms Jackson. 

 

Ms Jackson, who was already running a number of busy clinics in the hospital, had introduced a book in which the claimant’s off-duty was written down.  This was criticised by the claimant as being against normal procedure but as the claimant was the only person whose off-duty had to be considered, the tribunal does not consider that this complaint has any substance.  Ms Jackson agreed that it was true that she had come to the claimant with the off-duty made out expressing the hope that it should try to remain intact with there being flexibility on the part of the claimant in relation to organising her medical appointments at this difficult time.  The claimant considered that this was an example of her being discriminated against on the ground of her disability.  Once again it was clear from the evidence that the claimant was never refused permission to attend a medical appointment, even those at short notice.  The tribunal does not consider it that it was likely that Ms Jackson would have said to the claimant that it was no use her coming into work at 12.00 noon after her medical appointments, as  -  of course  -  the whole of the afternoon would have been available for the claimant in which to work.  Although the claimant claimed in her evidence that she was always flexible in her dealings with her line management, the tribunal has noted from her Occupational Health Nursing Notes dated 30 May 2012 that the claimant did not agree with having to attend or change her off duty.  The claimant challenged these notes but did not seek to further test their veracity.  The tribunal accepts them as being more likely than not to be true.  It was during this period that the tribunal noted that the claimant demonstrated her lack of flexibility.  The claimant was working an alternating pattern (as a reasonable adjustment) of two days one week and three days the next.  On Wednesdays there was a particular need for cover and this alternating pattern would have allowed the claimant to accommodate a swap so her appointments could have been arranged on a day off.  It is noticeable that during the period of Ms Jackson’s supervision the claimant worked three Wednesdays.  On two of them – 9 and 23 May, the claimant attended medical appointments having previously refused Ms Jackson’s request to swap the Wednesdays for another day to facilitate cover.  Furthermore, on one occasion in this period the claimant claimed that she had agreed to work Monday, Wednesday and Thursday, rather than Monday, Wednesday and Friday as appeared in her off-duty book.  The claimant denied that this had been agreed.  She was given the opportunity to put her own diary in evidence to counter the point made.  The diary was produced but no weight was placed upon it by the tribunal.  It was unclear and there was little evidence of a consistent system of recording commitments.  On the balance of probabilities the tribunal considers it is more likely than not that the claimant had agreed to work Monday, Wednesday and Friday of the week in question.  She was adamant that she was unable to accommodate the needs of the Respiratory Team and eventually Ms McKeown and Ms Jackson informed Mr Moore that there would be a period when the Respiratory Service was not covered.  He, by chance, spoke to the claimant by telephone and she agreed to work the Friday afternoon as a bank shift (for her core permanent job).  The tribunal noted that the reason why the claimant was unavailable for her core permanent job on the morning of the same day was that she was working a bank shift for the CNRRS.  The tribunal is unable to accept that the claimant’s willingness to work a bank shift for her permanent job demonstrates flexibility on her part towards her line management.

 

43.       The relationship between the claimant, Ms Jackson and Ms McKeown continued to be difficult.

 

44.       In a meeting with Mr Moore on 3 May 2012, the claimant suggested that Mr Hugh Harrison could carry out her supervision.  She also alleged that she was being deprived of bank shifts for CNRRS.  The claimant did not believe Mr Moore whenever he told her that Ms Catriona Briers (the Lead Nurse for that Service) had told him that there were no shifts available.

 

45.       In his meeting with the claimant of 11 June 2012, Mr Moore said that the mediation which had been a recommendation of the grievance panel was not going to take place.  Elaine Jackson had written to him telling him that she was not going to manage the claimant any longer.  He asked the claimant to think about moving to work in Downpatrick, effectively suggesting a swap, with the Nurse in the same band as herself moving to Lisburn as her working relationship with Barbara Hanna and Elaine Jackson had broken down.  The claimant refused this proposal because of her family circumstances. 

 

46.       In August 2012, the claimant went on sick leave and to the date of hearing had not returned to her job.  On 1 August 2012 Mr Moore requested to be told if there was any recurrence of the abuse of the Link Labs system.  An audit was carried out on 7 August 2012 which disclosed that the claimant had been continuing to access her own blood results contrary to previous directions.  On 10 August 2012 Mr Moore ordered that her account be closed.

 

47.       In October 2012, the claimant was reviewed by Dr Poots of the Occupational Health Department and he again did not consider that the claimant was fit to return to work.

 

 

REASONABLE ADJUSTMENTS

 

48.       The claimant tried to contend that reasonable adjustments had not been made for her condition.  We do not accept that argument.  When she arrived in the Respiratory Team she was working a rotating three day and two day week at the rate of 18.75 hours per week.  Furthermore, at her own request to Ms Hanna she was allowed to work 8.30 am to 4.30 pm to fit in with taking her daughter to her school.  While bank hours were available, Mrs Sloan was able to work these up to a maximum of 30 hours per week.

 

49.       She was allowed time to go to medical appointments during working hours.  There was no evidence that if she needed to go to an appointment she was refused permission to do so, even if she gave late or no notice to her line management.

 

50.       Clearly the claimant was in breach of the rules of Belfast Link Labs, but she did not seek to say that a relaxation of the rules should be made in her favour.  To a certain extent this is what happened the first time it happened, when, at the request of the claimant’s general practitioner, the trust dealt with her infraction with a light touch.  This led to the claimant simply repeating the breach.  When the claimant was reviewed in January 2013, she was held by Dr David Poots, the Occupational Health Consultant, to be incapable of any regular employment.  However, in his report of 20 February 2013 he recommended a phased return, once again working Monday and Tuesday week one and Wednesday to Friday week two.  This was in keeping with her original working pattern for the Respiratory Team, and the respondent would have been prepared to facilitate this as they found her a position in the Treatment Room at Lisburn Health Centre.  We did not understand how the claimant could seek to argue that this sort of adjustment was never made as it was well in line with her original pattern of work for the Respiratory Team.

 

 

THE OFFER OF REDEPLOYMENT

 

51.       The claimant was contacted by Mrs Julie Dyer in Human Resources to see if she would be interested in a redeployment to the Community Nursing Rapid Response Service (CNRRS).  According to the claimant this was an offer of redeployment which was subject only to her speaking to Mrs Catriona Byres, the Lead Nurse for that service.  The claimant stated that she was on sick leave and Mrs Dyer asked her to speak to Ms Briers.  The claimant was singularly unwilling to do so.  She considered that as she had already worked a large number of bank shifts for this service she knew the job inside out.   The claimant took this request to register an interest in the position as an offer of employment.  It is important to set in context the reason why this post had arisen.  The holder was on sick leave and was herself transferring out of the post.  Ms Briers gave clear and uncontroverted evidence that there was a need for the post to be filled urgently by a full time nurse to support the co-ordinator of the service.  There had been a difficulty in a previous member working two days and not reporting properly to the next member of staff taking over.  At this time the Ulster Hospital was put on black alert which denotes the highest level of crisis.  Ms Briers was tasked to get beds emptied and people into the community for care and this is why she needed the post filled as soon as possible.  When the claimant actually telephoned Ms Briers which was done reluctantly and only because Ms Dyer had emphasised that she must do so to progress the process, the claimant informed Ms Briers that the post had been offered to her and that she would be taking it.  She did not tell Ms Briers when she would be able to start as she was being reviewed on 16 January 2013 by the Occupational Health doctor.  The claimant seemed to think that the fact that she was on sick leave was not going to cause any bar to her taking up the post.  She considered that she had been told that the post would be held open for her. 

 

52.       An additional difficulty that left Ms Briers shocked and somewhat speechless in the face of the claimant’s comments was that Ms Briers knew that the claimant did not have access to the Link Lab system.  Ms Briers did not raise this with the claimant by telephone because she considered that it was not her place to do so and also she was not the claimant’s line manager.  Like the claimant’s colleagues in the Respiratory Team, Ms Briers was also very concerned to be careful in what she said to the claimant as the claimant had already brought two grievances which implicated her.  She did not wish to be accused of bullying and harassing the claimant while she was on sick leave.  The claimant appeared very surprised in her cross examination of Ms Briers to be told by Ms Briers that the claimant’s grievance against her had resulted in her being exonerated.  This was not however the claimant’s only reason for considering that she had been less favourably treated by Ms Briers.  She believed that Ms Briers held a grudge against her as the claimant had previously given evidence to support a colleague’s grievance against Ms Briers.  In actual fact Ms Briers was unaware of the claimant’s involvement until discovery was given in this case.  On this basis, the tribunal is not able to conclude that there was any form of grudge operating in the mind of Ms Briers when she did not know that the claimant had supported another in a grievance against her.  For the avoidance of doubt we also find that Ms Briers did not withhold shifts in the Rapid Response Team.  They were allocated in accordance with the rules of the system.  When there were shifts available for those outside the Rapid Response Team, they were allocated and the claimant received more of these bank shifts than perhaps any other nurse.  On the basis of this evidence we do not consider that the respondent treated the claimant less favourably by withholding bank shifts. 

 

53.       Ms Briers reported her telephone conversation with the claimant to Human Resources.  When a redeployment opportunity comes up, the practice is that it is notified to interested parties to see if they wish to register an interest and if there is interest, candidates are told to speak to the manager of the service.  We find that as a Human Resources Officer, Ms Dyer would not have had the authority to offer the post to Mrs Sloan, or indeed to tell her that the post would be held open for her until she returned from sick leave.  The tribunal is not able to find that asking for an expression of interest and telling a prospective candidate for redeployment to speak to the manager of the service can amount to a firm offer of transfer.  However the claimant certainly treated it as such, informing her trade union representative and asking whether or not she should hand in her notice to her existing job with the Respiratory Team and what were the arrangements for signing the contract.  A sequence of telephone calls followed from the claimant to the Human Resources Department culminating in calls on 10 and 14 December.  At this stage Ms Dyer had handed over the situation to her Human Resources Manager, Miss Alison Andrews.  She wrote to the claimant on 12 December 2012, on the advice of Mr O’Toole, to inform her that the redeployment opportunity had been withdrawn from her.  This caused the claimant considerable distress.

 

54.       On 10 January 2013, the claimant had a meeting with Ms Martina O’Neill and Mr Martin O’Toole.  They advised her that the respondent would be carrying out an investigation into the concerns raised by Ms Hanna in her letter to the trust (on 24 May 2012).  Mr O’Toole had previously tried to meet with the claimant to discuss these concerns on 10 July 2012 and 8 August 2012.  As the claimant remained on sick leave from 7 August 2012, the respondent postponed this investigation.  The claimant was told that she would be moved to Lisburn Health Centre Treatment Room and reasonable adjustments would have been made to facilitate her in this post while the investigation was ongoing.

 

55.       On 24 January 2013, the claimant raised a grievance regarding the withdrawal of the redeployment opportunity.  Mr Paul Millar chaired the panel which heard the grievance on 4 March 2013 and on 4 April 2013 a letter was sent to the claimant advising her that her grievance was not upheld and this was for three reasons:-

 

            (a)       her ongoing sickness absence and unavailability to fill the post without delay;

 

            (b)       the ongoing investigation into her conduct in clinical issues; and

 

            (c)        the restrictions imposed on her use of the Link Lab system.

 

56.       The claimant appealed this decision on 8 April 2013 and the panel, chaired by Ms Smith, heard her appeal on 30 May 2013.  The claimant was informed by letter dated 21 June 2013 that her appeal had not been upheld.  The primary reason for this decision was that the claimant had been unable to take up the post with immediate effect because of her ongoing sickness absence (this was certainly based on medical evidence as the claimant was still declared unfit for work as at 16 January 2013).  The appeal panel found a further consideration was that Occupational Health had stated that the claimant could not work full-time.  This post however was full-time.

 

57.       The investigatory panel of Ms J A Agusto and Ms J Fitzsimons interviewed the claimant on 27 March 2013 and heard evidence from some witnesses.  An interim report was prepared on in April 2013, but a full audit of the claimant’s caseload was outstanding as at the date of the hearing of this matter before us.

 

 

THE CONTENTIONS OF THE CLAIMANT

 

58.       The claimant contended strongly and emphasised that the central issue in her case was that she had been discriminated against on the grounds of her disability by way of the withdrawal of the redeployment opportunity to the Rapid Response Team (CNRRS).  The claimant contended that she was denied the opportunity because she was on sick leave and this did not happen to apply to the person who ultimately got the post.  The claimant also seemed to suggest that the respondent had contravened Section 4(1)(a) as by requiring the person to start quickly the respondent had made an arrangement to determine to whom the employment should be offered and this excluded the claimant as she was absent on the grounds of her disability.

 

 

59.       The claimant further contended that the respondent was aware that the Disability Discrimination Act of 1995 applied to the claimant by way of the Occupational Health Report of 1 February 2012 from Dr Poots.  He said the claimant required an adjustment of part-time working.  The claimant saw this as requiring the respondent to adjust the hours of the post.  At one stage, she also seemed to argue that the respondent should have provided her with an earlier Occupational Health appointment than that of 16 January 2013.  The reason why no earlier appointment was due was because Dr Poots was simply unavailable.  She also contended that the respondent should change the requirements of the post so that it could be filled by her as a part-time worker.  Thus, the claimant contended that the respondent took no steps to prevent this provision criterion or practice of having the post filled by one full-time worker putting her at a substantial disadvantage in comparison with persons who were not disabled.  She contended that this was a moderate request from a large organisation that would have the necessary resources and financial support to be able to accommodate it.

 

60.       Most interestingly, the claimant contended that her not having Link Lab access was not a barrier to fulfilling the post.  She revealed that she had been carrying out bank shifts for some time without having the necessary clearance for Belfast Link Labs.  Apparently the claimant, unknown to her line management in the Rapid Response Team (CNRRS) had made arrangements with colleagues in the Rapid Response Team to have them do everything that she was unable to do.  Ms Briers in evidence answered this contention by saying that if this had been known prior to the hearing, a stop would have been put to this behaviour.  Essentially, the claimant was arguing that Link Labs access was not necessary to do the job and in the alternative that there was no indication that the closure of the account was permanent.

 

61.       The claimant also contended that she had been harassed and bullied by Ms Hanna, Ms Jackson, Ms McKeown and Mr Moore.  The facts in relation to this contention have been set out at an earlier stage in this decision.  Additionally, the claimant considered that Mr Moore’s references to the disciplinary policy when she went to speak to him constituted bullying.  She also levelled this accusation against Mr O’Toole.  The claimant did not accept that while she was being investigated it would be a reasonable adjustment for her to be moved to Lisburn Health Centre Treatment Room so that she could remain at work (in the event of her returning to work).  Contrary to the authority of Garrett  v  Lidl Ltd [2010] All ER D which said that it was not unreasonable for an adjustment to be achieved by moving a claimant’s place of work even though she did not wish to move,  the claimant contended that moving her to the Lisburn Health Centre Treatment Room was anything but a reasonable adjustment.  She said that moving her for the duration of the investigation was not support but side-lining.

 

62.       The claimant contended that she was shut out from the Respiratory Team.  When she was in hospital in August 2010 and August 2011 she did not receive any get well wishes.  She was not told about an award the team received in December 2010.  Neither was she informed about a donation to the team in April 2011.  The claimant has also specifically targeted her interaction with the Human Resources Department contending that she was not treated with dignity and respect contrary to the Trust Working Well Together Policy.  She also contended that the lack of contact from the Respiratory Team when she went on sick leave on 8 August 2012 was a breach of the Management of Attendance protocol which provides that absent staff should be invited if appropriate to social events, away days or staff meetings, whilst staff who are absent should be informed of changes/events within their area of work including recruitment advertising trawls.

 

 

CONCLUSIONS

 

63.       The Burden of Proof

 

            There are various approaches to deciding a discrimination case and in the first place we are having reference to the case of Igen Ltd  v  Wong [2005] EWCA Civ 142 and in particular to the annexe which states as follows:-

 

                        “(1)      Pursuant to Section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by a virtue of Section .41 or Section .42 of the SDA is to be treated as having been committed against the claimant.  These are referred to as “such facts”.

 

                        (2)       If the claimant does not prove such facts he or she will fail.

 

                        (3)       It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

 

                        (4)       In deciding whether the claimant has proved such facts, it is important to remember at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

 

                        (5)       It is important to note the word “could” in Section 63A(2).  At this stage, the tribunal does not have to reach a definite determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage the tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

 

                        (6)       In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

 

                        (7)       These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other question that falls within Section 74(2) of the SDA.

 

                        (8)       Likewise, the tribunal must decide whether any provision of any relevant Code of Practice is relevant and if so, take it into account in determining, such facts pursuant to Section 56A(10) of the SDA.  This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

 

                        (9)       Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent.

 

                        (10)     It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed, that act.

 

                        (11)     To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatever” is compatible with the Burden of Proof Directive.

 

                        (12)     That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

 

                        (13)     Since the facts necessary to prove an explanation would normally be in the possession of the respondent, the tribunal will normally expect cogent evidence to discharge that burden of proof.  In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire and Code of Practice.”

 

64.       The guidance given by Mummery L J in his decision in the case of Madarassy  v  Nomura International Plc [2007] ICR 867, in particular at paragraph 77, has also been considered and states as follows:-

 

                        Paragraph 77

 

                        “In my judgment, it is unhelpful to introduce words like “presume” into the first stage of establishing a prima facie case.  Section 63A(2) makes no mention of any presumption.  In the relevant passage in Igen Ltd  v  Wong... the Court explained why the Court does not, at the first stage, consider the absence of an adequate explanation.  The tribunal is told by the section to assume the absence of an adequate explanation.  The absence of an adequate explanation only becomes relevant to the burden of proof at the second stage when the respondent has to prove that he did not commit an unlawful act of discrimination.”

 

65.       Comparators

 

            Two cases have been of assistance in considering this issue:-

 

            (a)       Nagarajan  v  London Regional Transport [1999] IRLR 572 House of Lords

 

                        “The crucial question in a case of direct discrimination is why the claimant received less favourable treatment.  Was it on grounds of race?  Or was it for some other reason?  If racial grounds were the reason for the less favourable treatment, direct discrimination is established.”

 

            (b)       Shamoon  v  Chief Constable of the RUC [2003] UKHL 11

 

                        “Employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was, and postponing the less favourable treatment issue until after they had decided why the treatment was afforded.  Was it on the proscribed ground or was it for some other reason?  If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others.”

 

66.       In respect of the unjustified less favourable treatment claim under Section 3A.(1) the claimant initially sought to compare herself to Mrs Donna Duffy, who worked in the post, to which she hoped to be redeployed.  The tribunal accepted the respondent’s argument that the circumstances of Mrs Duffy and the claimant were so materially different as to totally eradicate her value as an actual comparator.  These were as follows:-

 

            (a)       Mrs Duffy was moving to a new post by way of appointment from waiting list after interview, and not by way of redeployment as was the claimant’s situation.

 

            (b)       The schedule for her recruitment was more leisurely  -  running from March to December in one year.  The Rapid Response Team post required filling urgently.

 

            (c)        Mrs Duffy was absent from work for two months from September to November, made a good recovery, returned to work and handed in a month’s notice before commencing her post in a different service.  The service held the post open for her during this relatively brief period.  The claimant in comparison had been off work from 8 August to the end of November 2012 and was covered by a sick note until the end of January 2013.  As at her Occupational Health Review in mid-January, the doctor’s view was that the claimant was still unfit for work.

 

67.       Therefore we adopt a hypothetical comparator for this part of the case.  This is someone who had been off work from August to the end of November, was covered by a sick note until end of January and that Occupational Health in mid-January 2013 judged as being still unfit for work.  Given the requirements of the post, we are unable to say that such a hypothetical comparator would have been treated differently to how the claimant was treated.

 

68.       In respect of the direct discrimination claim on the grounds of failure to redeploy the claimant to the Rapid Response Team, we make the following findings:-

 

            (1)       The claimant was employed by the respondent as part of the Respiratory Team.  She worked bank shifts with the Rapid Response Team.

 

            (2)       The claimant’s relationships within the Respiratory Team broke down and she requested redeployment.

 

            (3)       She was put on the redeployment list and a number of opportunities were placed before her which she refused for reasons relating to her personal life.

 

(4)        The claimant went on sick leave on 8 August 2012.  She was notified of a redeployment opportunity in the Rapid Response Team in November 2012.

 

(5)        The claimant took it that she had been offered the job and she telephoned to tell the Team Manager, Ms Catriona Briers, that she was taking it.

 

(6)        At this time, Ms Briers saw two major obstacles to the claimant coming to work in the Rapid Response Team:-

 

                        (a)        she was on sick leave and the post needed to be filled urgently; and

 

            (b)       the claimant had been removed from the system whereby access was obtained to Belfast Link Labs (a necessary part of her job) in the Rapid Response Team.

 

(7)       There was a delay in the Human Resources Department in telling the claimant that she was not eligible to take up this redeployment opportunity.

 

(8)       The redeployment opportunity was withdrawn from the claimant on 12 December 2012.

 

(9)                   The claimant put in a grievance about this and also an appeal but neither of these were upheld.

 

69.       Taken at its very height, it could perhaps be argued that the claimant was on sick leave because of her disability and (the argument that the claimant in fact advanced at a very late stage in the tribunal) access to the Link Labs System was not required to do the job.  It was not entirely clear in the evidence whether the claimant was on sick leave because of work-related stress or because of her disability.  However, as there is a suggestion in the medicals that the work stress could be a “red herring” and it was in fact her disability that was making her ill, we have erred on the side of caution and taken it that the claimant was on sick leave because of her disability.  We are supported in taking this position by the fact that the claimant had a surgical procedure carried out in relation to her disability in January 2013.

 

70.       We are not able to accept the claimant’s contention that Link Labs’ access was not a necessary part of the job as she had been conspiring with other nurses in the Rapid Response Team to do the work when she was on bank shifts, without having the necessary access.  It was plain from the evidence that this was something that the Rapid Response Team line management had no knowledge of and would not have permitted the claimant to do her duties without the proper access - had she told them about this.  In taking this position the tribunal is relying on the evidence of Ms Catriona Briers, the Lead Nurse of that service.  She made it clear that the claimant’s actions were effectively carried out without the knowledge of line management and would not have been allowed to continue had line management been advised of what precisely she was doing.  The tribunal accepts that it is the requirement of the Rapid Response Team that each nurse has the appropriate access.  The tribunal cannot support the claimant’s contention that this was not the case.  Ms Briers is experienced and well-qualified and as the Lead Nurse of this service could be expected to be aware of what was and what was not permitted.  The claimant was a Band 5 Nurse working bank shifts, who had not revealed her inability to access the system so that she could continue to obtain bank shift nursing.

 

71.       If we apply the burden of proof tests as variously set out, we consider that the basic facts found for this particular head of claim do not disclose any fact from which an inference of discrimination could be drawn.  We have also considered the reason why the redeployment opportunity was withdrawn from the claimant and we consider that it was because the need was great for the post to be filled urgently and as the claimant was on sick leave at the time in question (November, December 2012) with no sign of a return date in sight the post could not have been held open for her.  We also consider that the claimant did not fulfil the requirement of having Link Labs access.  This had been removed from her as she had been accessing her own blood results and was caught doing so for the second time.  Finally, we have also noted that it was a requirement of Ms Briers that the post be filled by a full-time worker and not someone working part-time such as the claimant.  This again, was for perfectly adequate non-discriminatory reasons.  The post had previously been held on a part-time basis and this did not work in practice due to breakdowns of communication.  In Ms Briers’ judgment the post required to be held by a full-time worker.  Simply put, the claimant did not fulfil the eligibility requirements of the post and the reasons why she did not do so were for
non-discriminatory reasons.  Consequently, we find that the claimant has not discharged her burden of proving such facts from which an inference of discrimination could be drawn.  Consequently, the burden of proof does not pass to the respondent.  However, if we had decided that it did so pass, we would have found that the respondent discharged it in full by showing that the failure to redeploy the claimant was for proper operational and non-discriminatory reasons.

 

 

THE REASONABLE ADJUSTMENTS CLAIM

 

72.       The basic facts that we find in relation to this claim are as follows:-

 

            (1)       The claimant was employed to work 18.75 hours per week, rostered two days one week, three days the next week.

 

            (2)       The claimant had depression and was diagnosed with haemochromatosis/liver disease in December 2009.

 

            (3)       In relation to the depression the claimant told her manager, Ms Hanna, that she needed to keep working.  No particular special arrangements were made but she was given over time when the opportunity arose.

 

(4)        The claimant was indignant that her manager had raised her mental health with Occupational Health.

 

(5)        The claimant worked bank shifts for the Rapid Response Team up to 30 hours per week, which was the recommended maximum by Occupational Health.

 

(6)        When the claimant was having Venesections carried out, her off-duty was adjusted to allow her to attend hospital and clinic appointments on a regular ongoing basis.  After a Venesection the claimant was required to rest for half an hour.  The claimant agreed this with Ms Hanna.  No issue arose.  Between 2009 and 2010, the claimant attended 65 appointments and a quarter of these were attended in her working time.

 

(7)        The claimant was also allowed an adjustment in relation to her daughter in that she was allowed to start work at 8.30 am rather than 9.00 am and finish at 4.30 pm rather than 5.00 pm to fit in with her daughter’s school hours.  She was also allowed time off to attend hospital appointments with her daughter or to attend her daughter’s school.

 

(8)        There was some admitted and perceived irritation from those who worked with the claimant.  We are satisfied that this arose because the claimant often had to attend her appointments at short notice and during Ms Hanna’s absence was not entirely helpful towards the rest of the team in trying to cover the requirements of the service.

 

(9)        On 20 February 2013, Dr Poots recommended a phased return to work part-time.  As a result of interim recommendations from the enquiry into the claimant’s conduct and clinical practice, the claimant was not to work unsupervised until the issues regarding her professional practice and conduct were resolved.  To enable the claimant to return to work (and to presumably start earning once more) a position was proposed for her in Lisburn Health Centre Treatment Room which would fit the requirement of her not working unsupervised and, as she was surplus to requirements, would allow her the necessary breaks.  The claimant did not accept this as a reasonable adjustment and to the date of hearing in the tribunal had not returned to work.

 

73.       In relation to the removal of her access to Belfast Link Labs the claimant did not suggest to the respondent that it would be a reasonable adjustment for her condition to allow her to access her own blood results, contrary to the established rules.

 

74.       The claimant also contended that the failure to facilitate her redeployment to the Rapid Response Team was also a failure to allow a reasonable adjustment.  She said that the hours of the post could have been redesigned to suit her and (presumably but did not explicitly state to the tribunal) considered that it would have been a reasonable adjustment to allow her to do the job without having Belfast Link Labs access.

 

75.       In respect of the claimant’s general working conditions within the Respiratory Team we consider that the ample and very reasonable adjustments set out at the start of this section were made to stop her being placed at a substantial disadvantage in comparison with those not disabled.

 

76.       We consider that there was some understandable frustration or irritation in other members of the Respiratory Team with the claimant’s needs to go to these appointments.  We do not consider that this was anything other than a natural anxiety expressed by line management at various levels whether it be Elaine Jackson or Barbara Hanna or Gail McKeown, for example to have the service that they were employed to provide properly covered.  Had the claimant been more prepared to discuss her condition with line management it is possible that this would not even have arisen.  For example, Ms Hanna became irritated that the claimant went to dental hygiene appointments on short and sometimes no notice.  She was not made aware by the claimant that this was part of her condition.  At the bottom of this situation lies a tension between the need to have this service covered and the need for the claimant to attend her appointments.  Certainly, allowing a person time off for appointments is a classic reasonable adjustment.  When the claimant only worked two days one week and three days the next week it is unsurprising that she was being asked to try to be flexible in respect of her appointments.  In summary, we consider that the respondent made substantial reasonable adjustments in favour of the claimant to allow her to work despite her disability and we do not consider in all the circumstances of this case that it was unreasonable for the claimant to be asked to be a little more flexible (during the time of Ms Hanna’s sickness absence).

 

77.       In respect of the failure to adjust the requirements of the Rapid Response Team post to render the claimant eligible, we consider that it would not have been reasonable in all the circumstances of the case for these to have been adjusted to suit the claimant’s very specific needs.   For the proper running of the service Ms Briers had identified that a full-time employee was needed.  The claimant was not able to work more than 30 hours per week.  The claimant did not have Link Labs access and although she contended that there was no reason to believe that this was permanent, a possible outcome to her situation could have been that the claimant was to be disciplined for her second abuse of the system.  Finally she was on sick leave and it was only in the later part of February 2013 that she was declared fit for work.  The need for recruitment to this post was urgent and the respondent did not feel able to wait until the claimant was declared fit for work, even had the other requirements been adjusted to suit her.  In conclusion, applying the hypothetical comparator to the reasonable adjustment situation aspect of the redeployment withdrawal, we do not consider that a person with the characteristics of the hypothetical comparator would have been treated any differently.

 

 

THE HARASSMENT CLAIM

 

78.       The case of Richmond Pharmacology  v  Dhaliwal [2009] IRLR EAT proposes a three-stage test to elucidate whether the elements for liability for harassment are present and these are as follows:-

 

            (1)       Did the respondent engage in unwanted conduct?

 

            (2)       Did the conduct in question have the purpose or effect of either:-

 

                        1.         violating the employee’s dignity; or

 

                        2.         creating an adverse environment for the employee; and

 

                        3.         was the conduct on a prohibited ground.

 

            (3)       Liability is also the subject of a proviso in Section 3B(2):-

 

                                    “Conduct shall be regarded as having the effect referred to... only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.”

 

79.       After approximately one year in the job, the claimant suddenly started to act adversely towards Ms Hanna, in general but most specifically during their supervisory sessions.  It was the job of Ms Hanna to supervise the claimant’s work and during her absence this passed to Ms Jackson and Ms McKeown.  Together with Dr Jan McDowell, if they came across instances where the claimant’s conduct and clinical practice caused them concern they raised them with her.  They wanted to point out her mistakes so that she would learn from them and not repeat them.  Sadly, the claimant was unable to accept this form of correction.  This led the claimant to pursue grudges against Ms Jackson and Ms McKeown to the point of making veiled threats to them and also to raising a grievance about them.  The claimant complained bitterly to Mr Moore and Mr O’Toole about Ms Hanna and when they tried to discourage her from taking what they perceived to be a dangerous step, she read this as being, in general, that they were not prepared to take her seriously or to listen to her versions of events and, in particular, that they were bullying her by referring to the disciplinary provisions.

 

80.       The tribunal accepts that it was the rule in the Rapid Response team that each nurse had to have her own appropriate Belfast Link Labs access account and it was not acceptable for colleagues (including a Band 3 nurse) to be putting through the claimant’s requests while her access had been removed.   The evidence of Ms Briers was particularly strong on this point and we prefer it to the claimant’s as Ms Briers is the Lead nurse of this service, experienced and well qualified in what she does.  She was the equivalent of a Band 7 nurse and as such the tribunal prefers her evidence to that of the claimant who was a Band 5 nurse working bank shifts, all be it a considerable number of them.  Applying the tests in the Dhaliwal case to this situation, we find as follows:-

 

            1.         Did the respondent engage in unwanted conduct?

 

                        From the claimant’s point of view undoubtedly.  The claimant did not want to be criticised at all.  She wished to have the right to challenge those above her in line management, but was not prepared to listen to their suggestions to her.  The claimant’s perception was that Mr Moore and Mr O’Toole were not interested in her side of the story.  We do not accept from the evidence that this was the case.  Far from accepting that Ms Hanna was in the right unconditionally, Mr Moore sent her on various management courses to assist her in how to deal with difficult people such as the claimant.  We do not accept the claimant’s perceptions.

 

            2.         Did the conduct in question have the purpose or effect of either:-

 

                        (1)       Violating the employee’s dignity; or

 

                        (2)       Creating an adverse environment for the employee.

 

                        The purpose of the conduct towards the claimant within the team was not to violate her dignity or create an adverse environment for her.  Essentially they wanted the claimant to do her job properly and were trying to help her to do so.  It was her adverse reaction to this that created the adverse environment in the team.  We are unable to find that the members of the team gave the claimant anything other than what could be categorised as lawful instructions, and do not see how that could violate her dignity.  In relation to the claimant’s more minor allegations that she was excluded from the team by not being told about an award or various collections that were made, we find that the lack of communication was not a deliberate attempt to undermine the claimant.  Neither was the somewhat clumsy way in which the Human Resources Department handled the redeployment withdrawal from the claimant designed to violate her dignity.  However, we consider that these unfortunate actions may have inadvertently fed the claimant’s unreasonable perception that her dignity was being violated.

 

3.         Did it violate the claimant’s dignity or create an adverse environment for the claimant?

 

            4.         Was this conduct on a prohibited ground?

 

                        We do not consider that the claimant’s disability played any part in the minds of the Respiratory Team, Mr Moore or Mr O’Toole and the rest of the Human Resources Department.  Mr Moore and Mr O’Toole were trying to sort out the difficulty that occurred in the Respiratory Team.  The Human Resources witnesses Ms Kincade, Ms White and Ms Andrews were trying to facilitate the claimant’s redeployment.

 

                        Any irritation towards the claimant or questioning in relation to her appointments arose from the desire to have the Respiratory Service in which they were employed properly covered and not to violate the claimant’s dignity.

 

 

Reasonableness

 

                        Taken as a whole undoubtedly the claimant perceived her dignity to have been violated or an adverse environment to have been created, but for reasons which we have stated at earlier stages in the decision, we do not consider that it was reasonable for her to feel this way.  The claimant seemed to think it was unreasonable that she should be questioned at all about her appointments.  Implicit in this is an underlying suggestion on the part of the claimant that her appointments should take precedence over everything and if the needs of the Service were not covered, that was not really anything to do with her.  We cannot accept this position.  The claimant (who repeatedly stressed in the hearing that she was a health care professional) was not reasonable in expecting that if she was going to be off work on medical appointments in a small team, she should not be questioned and asked to facilitate the team where possible.  We are not able to find that by asking about the claimant’s condition when other people were present was an attempt to violate the dignity of the claimant or create an adverse environment for her.  There was nothing in the evidence to suggest that this type of complaint was an attack on the grounds of the claimant’s disability.  Furthermore, apologies were offered to the claimant, for example, when Ms Hanna perceived that offence had been taken.  This also happened when Ms Jackson was asking about hospital appointments on 21 May 2012.  The tribunal considers the very fact that Ms Hanna and Ms Jackson apologised at once shows that there was no intent to upset the claimant.  Ms McKeown summarised medical professional life by saying that if there is a difference of opinion you document it and move on.

 

 

 

THE GRIEVANCES

 

81.       The claimant’s first grievance which was principally to do with her being removed from the care of a male patient by Ms Gail McKeown was heard on 13 March 2012.  This was a grievance that was lodged out of time by the claimant but the respondent still eventually allowed it to go forward.  This was a grievance that was heard without reference to anyone other than the claimant.  Nonetheless the claimant’s complaints against Ms McKeown and Ms Jackson were not upheld.  Some recommendations were made but the principal one which was of importance to the claimant which was that mediation should be entered into by the Respiratory Team was not implemented.  For it to go forward, all the team members had to agree to it and they did not do so.  However, the other issue of singular importance which was that the claimant should not receive supervision any more from Ms Barbara Hanna was actually eventually dealt with.  Eventually after consideration of the practicalities, the Trust arranged for supervision by the Lead Nurse in the Down sector of the respondent’s organisation.  The claimant accepted this.

 

 

82.       The claimant’s second grievance about the withdrawal of the redeployment opportunity was heard and not upheld.  It also was not upheld by that appeal.  It was unclear whether it was part of the claimant’s case that she had been less favourably treated by way of a failure to deal properly with her grievances.  The tribunal found no evidence that this was the case.  The first grievance was allowed to proceed out of time.  If the recommendations were not fully implemented, the tribunal noted that even the claimant’s representative Mr McSherry expressed doubts about whether or not a mediation meeting was a good idea to resolve the claimant’s issues.  If we are wrong in holding that the claimant’s grievances were properly dealt with, we still consider that the reason for this was nothing to do with the claimant’s disability.  There was no evidence to back this up.

 

83.       For all of the above reasons we are dismissing the claimant’s various claims in full.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:       7-11 October, 14 October, 11-14 November, 25-29

                                                         November and 5 December 2013.

 

Date decision recorded in register and issued to parties: