L. Marshall v East & North Hertfordshire NHS Trust

Where a complaint under section 15 of the Equality Act 2010 identifies conduct as the matter arising from disability, a tribunal must determine that pleaded issue. It must not dismiss the complaint by addressing only a different alleged matter arising from disability.

In a redundancy case, the reasonableness of an employer’s failure to offer alternative employment is assessed under section 98(4) of the Employment Rights Act 1996 by reference to information known at the material time. A reasonable belief that an employee would not accept a post may make an offer futile. Information obtained only after dismissal may be relevant to Polkey compensation, but not to the fairness of the dismissal.

The appellant, a Surgical Site Surveillance Nurse, was dismissed for redundancy in January 2021. The Employment Tribunal at Watford dismissed her complaints, including disability discrimination and unfair dismissal, following a lengthy hearing.

On appeal, she contended that the tribunal had failed to determine a section 15 complaint concerning her being sent home and instructed to take sick leave on 21 September 2019. She also challenged the fairness of her redundancy dismissal because two Infection Protection and Control Nurse vacancies had not been offered or drawn to her attention in summer 2020.

The central issues were whether the tribunal had overlooked a pleaded disability-discrimination issue and whether its approach to suitable alternative employment under section 98(4) was legally erroneous.

1. The appeal was allowed in part. The tribunal had identified the allegation that the appellant was sent home on 21 September 2019 as a section 15 complaint. Her case was that her agitated and upset behaviour arose from anxiety and depression, and that the decision to send her home was because of that behaviour.

2. The tribunal’s findings recorded the appellant’s behaviour and the manager’s response, but its reasons did not determine whether that behaviour arose from disability. It consequently did not decide, insofar as necessary, whether the response was unfavourable treatment or whether it was justified. The omission was an error of law despite the unusually large number of issues before the tribunal.

3. That discrete section 15 complaint was set aside and remitted to the same tribunal. In light of Sinclair Roche and Temperley v Heard, the EAT saw no reason why the original tribunal could not determine the outstanding issues.

4. The redundancy ground failed. Under section 98(4) of the Employment Rights Act 1996, the question was whether the employer’s actions fell within the range of responses open to a reasonable employer, assessed on information available at the time. A contemporaneously known indication that an employee would not accept a role can properly bear on whether it was reasonable not to offer it.

5. The tribunal had found that the appellant had communicated that she did not want a ward-based role during the Covid pandemic, and that the IPC posts involved substantial ward-based work and were materially different from her existing role. It had therefore implicitly, though not ideally expressly, concluded that not offering those vacancies was reasonable. The dismissal of the unfair-dismissal complaint was upheld.

• Employment Appeal Tribunal — allowed the appeal only as to the unresolved section 15 complaint, set aside that part of the tribunal’s dismissal, and remitted it to the same tribunal. The redundancy ground was dismissed: [2025] EAT 46.
• Employment Tribunal (Watford) — by reserved judgment dated 12 January 2023, dismissed all of the appellant’s complaints.