This question was recently considered by the EAT in Betsi Cadwaladr University Health Board v Hughes & Ors. Mrs Hughes was a senior nurse with 31 years’ service. After contracting Parkinson’s disease she could no longer carry out her clinical role.
The hospital created a non-clinical role for her which also preserved her salary. However, over time (a period of six years), the meaningful aspects of that role were chipped away at, to the point that 'a grade 6 nursing sister [was] now being asked to look after cardboard boxes'.
The EAT upheld the tribunal’s decision that this ‘downgrading’ of her role amounted to harassment related to disability - it was unwanted conduct which had the effect of violating her dignity and creating a demeaning environment for her.
It seems to us that this is something of a leap for the tribunal to have made. Mrs Hughes could not perform her nursing role any more and her employer took steps to find alternative employment which preserved her salary for a very long period. To say that this downgrading amounted to harassment seems extraordinarily harsh on the employer. Looking at the detail of the case it is very possible that a little more sensitivity on the part of the employer (it was slightly heavy-handed in its dealing with her) may actually have avoided a complex claim in which it was defeated.
Although the employer lost in this case, some comfort can be gleaned for employers as the EAT reiterated that it is 'important not to encourage a culture of hypersensitivity' and that not every adverse comment will give rise to a claim, especially if it is transient, trivial and it was clear no offence was intended. Because of that, a number of complaints Mrs Hughes made in this case were dismissed.