Introduction
On 15 February 2024, the Employment Tribunal gave judgment in the case of Lietor v Barts Health NHS Trust, dismissing the Claimant’s claims for discrimination arising from disability (section 15 Equality Act 2010) and breach of the duty to make reasonable adjustments (sections 20 and 21 Equality Act 2010). The claims were brought by an Emergency Department Nurse who was unable to work night shifts due to a disability.
It is an interesting example of balancing the rights of a disabled employee with the needs of the department she worked in, and the resulting limits on the duty to make reasonable adjustments and what amounts to discrimination arising from disability.
Rosalie Snocken of Old Square Chambers successfully appeared for the Respondent, instructed by Helena Morrissey of Bevan Brittan LLP.
Background
The Claimant was employed as an Emergency Staff Nurse at the Respondent’s Royal London Hospital, a major trauma centre. This was a permanent and full-time post, and the job description stated: “Need to work flexible hours to meet service need. Shift rotation between days and nights.”
Throughout her employment the Claimant had a need to be permanently exempted from working night shifts because of her Fixed Body Clock condition (admitted for the purposes of these proceedings to be a disability). Several options were explored by the Respondent; however, each was met with difficulty. Ultimately, having explored all they could to find a suitable solution, the Respondent’s firm and consistent position was that it was not possible to permanently exempt the Claimant from night shifts whilst she worked in the Emergency Department.
The Claimant submitted a flexible working request (“FWR”) at the Respondent’s suggestion. The Respondent agreed to reduce the Claimant’s weekly hours from 37.5 to 24 for 6 months, but not to permanently exclude her from night shifts. This was upheld on appeal.
Judgment
The Claimant’s claim for discrimination arising from disability (section 15 Equality Act 2010)
The Claimant relied upon two alleged incidences of unfavourable treatment: (1) not being paid for night shifts that she did not attend; and (2) having to complete a FWR in order for the Respondent to consider making reasonable adjustments.
In deciding that the first incidence of unfavourable treatment was not because of something arising from the Claimant’s disability, the Tribunal found that:
In deciding the claim for the second alleged incidence, the Tribunal found it was factually incorrect and found force in Ms Snocken’s argument that it was not unfavourable treatment nor caused disadvantage.
The Claimant’s claim for breach of the duty to make reasonable adjustments (sections 20 and 21 Equality Act 2010)
The Claimant relied upon two practices: (1) refusing to exempt the Claimant and ED staff from working nights; and (2) rejecting FWRs requesting no night working.
After considering the extent to which the two alleged PCPs were in fact applied (and finding the second alleged PCP was not evidenced beyond the Claimant’s individual FWR), the Tribunal went on to focus on the reasonableness of the adjustment contended for by the Claimant, namely permanent exclusion from working nights whilst remaining a nurse in the Emergency Department.
In assessing the reasonableness of permanently excluding the Claimant from night shifts, the Tribunal found that the “most compelling reason” for refusing the adjustment was the “adverse impact on the [ED]’s ability to deliver patient care and maintain the safety of patients and staff alike” [131]. The Tribunal was persuaded by the Respondent on a number of factors supporting that conclusion. Having found they could place weight on the professional views from the Respondent’s witnesses, who either held senior positions and/or had extensive relevant experience, describing relevant parts of their evidence as compelling, detailed, consistent and/or cogent, the Tribunal found that granting the desired adjustment, “would constitute a threat to patient safety and undermine the effectiveness of the services provided by the Emergency Department” [134] and thus the Tribunal concluded that the adjustment was not reasonable.
Comment
Firstly, this case demonstrates the limits of the duty to make reasonable adjustments in the face of compelling evidence of the detrimental effects of an adjustment. The Tribunal found that the adjustment would lead to a reduction in patient safety because the Respondent would need to rely on cover staff without specialist ED training. Further, the adjustment would place higher demands on existing teams and impact their health and wellbeing.
Secondly, the Tribunal placed weight on the comprehensive accounts from the Respondent’s witnesses about the operation of their cover system and the impact of the adjustment on the department.
Thirdly, this case illustrates the importance of employers exploring alternative adjustments, including temporary solutions, when employees seek adjustments that are not operationally feasible.
Finally, this is a helpful reminder that such principles apply no matter the size of the employer. Despite the Respondent being a large organisation with considerable resources, which the Claimant sought to rely upon to say the requested adjustment must be provided, it was still able to demonstrate the adverse effects that couldn’t be accommodated in the particular department (though it could in other departments which the Claimant was resistant to). Whilst resources are of course a relevant consideration, it still comes down to reasonableness of the particular adjustment assessed in light of the evidence presented.
Click here to read the full judgment.
This case summary was written by Elena Margetts, pupil of Old Square Chambers.
