Agency nurse with HIV refused ICU work during pandemic: disability claims dismissed
An agency nurse over 60 with HIV lost her disability discrimination claims after refusing to work in ICU during COVID-19. The tribunal found the NHS Trust did not know about her HIV and acted reasonably in the pandemic context.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was an agency nurse supplied by RMR Recruitment to the respondent NHS Trust from May 2017 to April 2020.
- The claimant had HIV, which was accepted as a disability by the respondent.
- On 21 April 2020, the claimant's shifts were cancelled after she refused to work in ICU due to COVID-19 concerns.
- On 28 April 2020, the claimant was permanently barred from working for the respondent due to conduct issues and refusal to work flexibly.
- The respondent did not have actual knowledge of the claimant's HIV and was found not to have constructive knowledge given the pandemic context.
- All disability discrimination claims were dismissed as not well founded.
Timeline
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Claimant started supplying services to respondent
The claimant, a Band 5 nurse, began working at Weston General Hospital via RMR Recruitment agency.
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Incident on Waterside ward
A nursing assistant raised concerns about the claimant's behaviour, leading to a complaint and investigation.
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Fit note issued
The claimant obtained a fit note stating she was in a high-risk group for COVID-19 and needed to work in a low-risk area.
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Fit note sent to respondent
The claimant's fit note was sent to Catherine Williams of the respondent, who noted there were no low-risk areas.
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Claimant refused to work in ICU
The claimant refused to work as a runner in ICU, citing concerns about COVID-19 risk due to her health condition.
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Shifts cancelled
The respondent cancelled the claimant's rostered shifts, citing her refusal to work flexibly.
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Claimant permanently barred
The respondent decided the claimant would no longer be offered shifts, based on conduct issues and refusal to work flexibly.
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First claim presented
The claimant presented claim 1404827/2020 for unfair dismissal.
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Second claim presented
The claimant presented claim 1404937/2020 for unfair dismissal, age and disability discrimination.
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Preliminary hearing
Employment Judge Cadney dismissed unfair dismissal and age discrimination claims but allowed disability discrimination claims to proceed.
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Final hearing (day 1)
The tribunal heard evidence and submissions on the disability discrimination claims.
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Judgment issued
The tribunal dismissed all disability discrimination claims as not well founded.
The legal issue
The tribunal had to decide whether the NHS Trust discriminated against an agency nurse by cancelling her shifts and barring her from work after she refused to work in ICU due to COVID-19 concerns, given her HIV status.
The outcome
The tribunal dismissed all disability discrimination claims against University Hospitals Bristol and Weston NHS Foundation Trust.
The key reasons were:
- The Trust did not know the nurse had HIV, and in the chaotic early pandemic context, it was not reasonable to expect them to know.
- Without knowledge of her disability, the duty to make reasonable adjustments did not arise.
- The Trust's decisions were based on conduct issues and refusal to work flexibly, not on her HIV.
No compensation was awarded as the claims failed.
Lessons & takeaways
- Employers must have actual or constructive knowledge of a disability before a duty to make reasonable adjustments arises.
- During a crisis like a pandemic, tribunals may accept that employers cannot be expected to know about hidden disabilities if the employee has not disclosed them.
- Refusing to work in a high-risk area without following proper procedures can justify an employer's decision to remove shifts, even if the employee has a health condition.
- Agency workers should disclose any disabilities to the end-user employer if they want protection under the Equality Act, as the agency may not pass on that information.
This case shows the limits of disability discrimination protection when an employer is unaware of the disability, especially during an emergency.
What happened
The claimant, an agency nurse in her 60s with HIV, had worked at Weston General Hospital for three years. In April 2020, at the height of the first COVID-19 wave, she was asked to work as a runner in ICU. She refused, citing her fit note that said she was in a high-risk group and should work in a low-risk area. The Trust cancelled her shifts and later permanently barred her, citing conduct issues and refusal to work flexibly.
The nurse did not tell the Trust she had HIV. She argued they should have known because she had mentioned a 'health condition' and provided a fit note. But the tribunal found that in the pandemic chaos, the Trust could not reasonably be expected to piece together that she had a disability.
What the Trust could have done differently
The Trust could have asked more questions when the nurse raised concerns about her health. A simple inquiry might have revealed her HIV status. However, the tribunal accepted that the Trust was dealing with an unprecedented crisis and that its focus was on staffing ICU.
Why this matters
This case is a reminder that the duty to make reasonable adjustments only kicks in when the employer knows, or ought to know, about the disability. Employees who want protection should disclose their condition clearly. For employers, the case offers some reassurance that in a genuine emergency, a lack of knowledge can be a complete defence.
The nurse also faced a separate problem: as an agency worker, she was not an employee of the Trust, so her unfair dismissal claim was dismissed as out of time. This highlights the precarious position of agency staff, who may have fewer rights than direct employees.
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