5th March, 2018

Paul Gilroy QC and Ed Morgan overturn findings of liability in 7 figure disability discrimination claim by trainee hospital consultant

The EAT (HH Judge Shanks presiding) has handed down judgment in Health Education England and County Durham and Darlington NHS Foundation Trust v Jackson Appeal Nos. UKEAT/0068/17/DA;UKEAT/0069/17/DA, a case which demonstrates the importance of establishing, in a multiple respondent discrimination case, clear lines of liability in the case of each respondent. This is a matter of particular importance in cases involving different agencies of the NHS.

The Claimant was training to be a Consultant Anaesthetist. In common with all trainee doctors aspiring to be consultants, essentially by acquiring the Certificate of Completion of Training, or "CCT", her training was the responsibility of Health Education England, "HEE", and she was employed by a "Lead Employer Trust" in her region (in this case County Durham and Darlington NHS Foundation Trust, "the Trust").

The Claimant developed a latex allergy, a condition amounting to a disability within the meaning of the Equality Act 2010. After meetings and enquiries, HEE informed her that she would not be able to continue with her training because of her condition and she subsequently resigned from her employment with the Trust and claimed that both HEE and the Trust had failed in their duty to make "reasonable adjustments" to enable her to continue to work and train. She also pursued a claim of constructive unfair dismissal against the Trust (based on the Trust’s alleged failure to make reasonable adjustments), and a claim of discrimination arising from disability against HEE.

The ET upheld the claims on the basis that it ought to have been possible somehow to continue her NHS training and the Appellants had not done enough to investigate matters.

The EAT held that in so doing the ET had treated the NHS as a single entity and failed to have proper regard to the specific legal functions and powers of the two Appellants, and that, as a result, the ET had (a) imposed liability on both of them indiscriminately without any separate consideration of their respective positions, (b) decided that it would have been a reasonable adjustment on the part of both of them to provide training and work in a latex free hospital when HEE had no control over any hospital and the Trust had no control over those of other Trusts and no control over where HEE required the Claimant to carry out her training, and (c) apparently decided that they should both make adjustments in relation to exams or other speciality training requirements over which neither Appellant had any control. This was an error of law. The decision could not stand.

The matter was remitted to the EAT for, amongst other things, reconsideration as to the extent to which, if at all, each Appellant could be held liable in respect of the claim for failure to make reasonable adjustments, having regard to their respective statutory responsibilities.

Paul Gilroy QC, instructed by Hill Dickinson, represented Health Education England. Ed Morgan, instructed by Capsticks, represented the Trust.

Click here to read the full judgment.

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