L. Marshall v East & North Hertfordshire NHS Trust

The Employment Appeal Tribunal considered two grounds of appeal from a reserved Employment Tribunal judgment dismissing multiple complaints including discrimination arising from disability under section 15 of the Equality Act 2010 and an unfair dismissal complaint arising from redundancy under section 98 of the Employment Rights Act 1996. The appellant argued that the tribunal failed to consider one element of the section 15 complaint relating to being sent home on 21 September 2019, and that it erred in finding that two Infection Protection and Control (IPC) vacancies in June and August 2020 were not suitable alternative employment.

The EAT found that the tribunal had not addressed the specific question whether the conduct on 21 September 2019 arose from the appellant’s disability and accordingly had not ruled on whether the decision to send her home amounted to unfavourable treatment or was justified. That omission was an error and that part of the decision was set aside and remitted to the same tribunal for determination.

By contrast, the EAT held that the tribunal did not err in its assessment of the redundancy process or the suitability of the IPC vacancies. The tribunal had made findings that the IPC roles involved materially different, ward-based duties, and that the appellant had communicated she did not want ward-based work during the pandemic; in those circumstances the tribunal’s conclusion that the employer’s decision not to offer the IPC vacancies lay within the range of reasonable responses was not flawed.

Background and procedural posture. The appellant was employed from 1999 and by 2014 held the role of Surgical Site Surveillance Nurse. She was dismissed for redundancy in January 2021. She presented multiple ET1 claims alleging disability discrimination (Equality Act 2010: sections 13, 15, 20, 21), harassment (section 26), victimisation (section 27), detriment and automatically unfair dismissal for protected disclosures (Employment Rights Act 1996: sections 47B and 103A) and ordinary unfair dismissal (ERA sections 94, 98 and 111). The tribunal identified around 80 issues. After a 7-day hearing in June 2022 and three further days of deliberation in October 2022, the Employment Tribunal (Watford) dismissed all complaints by reserved judgment dated 12 January 2023. The appellant appealed to the Employment Appeal Tribunal.

Nature of the appeal and issues framed. The appellant advanced two grounds: (i) that the tribunal failed to consider an element of the section 15 discrimination arising from disability claim concerning being sent home on 21 September 2019 when her manager instructed her to take sick leave; and (ii) that the tribunal erred in finding the dismissal for redundancy fair because it did not redeploy her into one of two IPC nurse vacancies in June and August 2020.

Court’s analysis and reasoning. On the first ground the EAT concluded the tribunal had omitted to address the specific question whether the appellant’s conduct on 21 September 2019 arose from her disability, and so had not considered whether the instruction to go home was unfavourable treatment or justified as a proportionate means of achieving a legitimate aim. That omission was an error of law. The EAT remitted that single aspect of the section 15 complaint to the same tribunal to decide.
On the second ground the EAT reviewed the tribunal’s factual findings that the IPC roles were materially different and more ward-based, that the roles were advertised and not applied for, and that the appellant had communicated she did not wish to undertake ward-based duties during the Covid pandemic. The EAT explained that under section 98(4) ERA the tribunal must assess reasonableness by reference to what the employer knew at the time and that evidence the appellant had made clear she was not interested in ward-based roles was a proper basis for concluding the employer’s decision fell within the band of reasonable responses. The EAT therefore dismissed the second ground.

Disposal. The first ground succeeded and that part of the tribunal’s decision was set aside and remitted for determination by the same tribunal. The second ground was dismissed.

Appeal allowed in part. The EAT held that the Employment Tribunal had erred by failing to consider whether the appellant's conduct on 21 September 2019 arose from her disability and therefore failed to rule on whether the instruction to go home amounted to unfavourable treatment or was justified; that part of the judgment was set aside and remitted to the same tribunal. The EAT rejected the complaint that the tribunal erred in relation to redundancy and suitable alternative employment, holding the tribunal had properly assessed suitability and reasonableness under section 98(4) ERA in light of its factual findings.

Appeal from a reserved judgment of the Employment Tribunal, Watford dated 12 January 2023 (reserved judgment dismissing all complaints). This judgment is the Employment Appeal Tribunal decision in Marshall v East & North Hertfordshire NHS Trust [2025] EAT 46.