The Employment Appeal Tribunal partially upheld an appeal concerning an overlooked disability discrimination complaint, whilst rejecting arguments that the respondent’s failure to offer ward-based roles during the pandemic constituted unfair dismissal.

Background

The Appellant commenced employment with the Respondent in 1999, working as a Surgical Site Surveillance Nurse from 2014 until her dismissal for redundancy in January 2021. She subsequently presented three separate claim forms, cumulatively asserting disability discrimination under the Equality Act 2010, harassment, victimisation, protected disclosure detriment, and both automatically unfair and ordinary unfair dismissal under the Employment Rights Act 1996. The Employment Tribunal (ET) identified approximately 80 distinct issues requiring determination.

Following an 18-day hearing, the ET dismissed all claims. The Appellant challenged this decision on two grounds: firstly, that the tribunal failed to address her section 15 complaint regarding an incident on 21 September 2019 when she was sent home after becoming “extremely agitated and upset”; and secondly, that the tribunal erred in concluding her dismissal was fair despite the Respondent’s failure to consider her for two Infection Protection and Control (IPC) roles that became available prior to her dismissal.

Judgment

 Lord Fairley, delivering the judgment, upheld the first ground of appeal, finding that despite making relevant factual determinations, the tribunal had manifestly failed to consider whether the Appellant’s agitated behaviour on 21 September 2019 arose from her disability and consequently whether the Respondent’s reaction constituted unfavourable treatment under section 15. The EAT remitted this singular issue to the same tribunal for proper determination.

Regarding the second ground, the appeal was dismissed. The EAT held that the tribunal had properly examined the material differences between the Appellant’s previous role and the IPC positions, validly concluding they were “entirely different”. Crucially, the tribunal had made specific findings that the Appellant had communicated to the Respondent her unwillingness to undertake ward-based activities during the pandemic due to COVID-19 concerns. Whilst the tribunal had not explicitly framed its analysis using the “band of reasonable responses” language, its reasoning sufficiently established that the Respondent’s decision not to offer these positions fell within the range of reasonable responses per section 98(4) ERA.

Endnote

This judgment illustrates the technical precision required when tribunals address multiple discrimination claims with varied causative mechanisms. The EAT’s approach demonstrates that whilst overlooking discrete issues constitutes an error of law, tribunal decisions will be upheld where their substantive reasoning addresses the material considerations, even without explicitly articulating the precise legal framework. The case also reinforces that contemporaneous evidence of an employee’s expressed preferences can be determinative in assessing the reasonableness of not offering particular alternative roles during redundancy.

Read the full decision of the Employment Appeal Tribunal: Marshall v East & North Hertfordshire NHS Trust [2025] EAT 46