View source for 150722 CEO NHSD Letter to Dr Tyerman.pdf

www.digital.nhs.uk

enquiries@nhsdigital.nhs.uk

15 February 2022

Dear Dr Tyerman,

Your email of 10 June 2022 has been passed to me as CEO within NHS Digital. Thank you for taking the time to put your concerns in writing. I have now had an opportunity to look into the situation and I am in a position of being able to respond to you.

I am aware that in an employment related claim, in which there is an allegation of disability discrimination, it is necessary to establish whether the particular definition of 'disability' within the Equality Act 2010 has been met. This depends on an assessment by the Employment Tribunal of the available evidence. The opinion of a medical professional is relevant to the assessment but not determinative, as the Employment Tribunal must be satisfied that the particular legal test that applies to such claims has been established.

I understand that in your son's case the question of whether his condition meets the legal test of 'disability' has not been conceded as a result of a number of concerns regarding the nature of the information and documentation that has been made available to date. Details of the decision reached on the part of NHS Digital and the reasons for that decision have been shared with you. At a subsequent Employment Tribunal hearing the Employment Judge ordered that an additional joint medical report should be obtained after considering representations on behalf of both parties.

As I understand the position, there are in effect two reasons why an additional medical report was considered to be required:

1. Firstly it was considered to be necessary to assist the Tribunal to not only consider the question of whether your son meets the legal test of disability for the purposes of the Equality Act 2010, but also to consider the question of the nature and extent of the duty, and actions, on the part of NHS Digital to make reasonable adjustments in order to accommodate your son's condition as part of two recruitment processes, in the event that he is found to be disabled.

2. The second reason why it is necessary to obtain a further report is so that consideration can be given to the nature and extent of any adjustments that may need to be applied in respect of the final hearing of the case. As I understand the position your son in seeking some significant adjustments to the way in which the hearing would normally be conducted, and the Employment Tribunal will need to carefully consider your son's request. It will need to understand his condition to be able to assess whether the requested adjustments would be reasonable. I appreciate that there will be other considerations that the Tribunal will need to take into consideration, but it will need expert assistance to understand your son's condition in the very particular context of your son's application for the hearing to be handled in a way that is very different from the way in which hearings are usually handled.

I do not accept that by refusing to agree to your son's position regarding his condition NHS Digital is creating or causing the situation you describe. The current situation is a consequence of the need for informed decisions to be reached in respect of a number of complex considerations arising in your son's case in order for the case to be addressed appropriately.

I also do not accept that following the necessary process to ensure that the issues arising in the case are properly determined involves NHS Digital as the Respondent in the proceedings acting in a discriminatory manner.

Whilst I entirely agree with you that autism is a condition that can qualify as a disability under the Equality Act 2010, it is also clear that each case needs to be considered separately and I am satisfied that there are particular features of your son's case on which additional expert evidence is needed in order for the Employment Tribunal to be able to makes the decisions it needs to make.

Your son's case is reviewed on a regular basis and undoubtedly a further review of the position will take place on receipt of the additional documentation you are currently collating. I can assure you that NHS Digital takes into consideration its status as a public sector employer in the decisions it takes in connection with the case and will continue to do so.

Yours sincerely,

Simon Bolton,

CEO,

NHS Digital