Dealing with sickness absence is a persistent problem for many employers, particularly when dealing with the apparent dichotomy between potentially fair dismissal on the ground of extended sickness absence and discrimination based on disability. The issue reared its head once again in the recent case of Muller v London Ambulance Service NHS Trust.
Mr Muller, a paramedic, injured himself when falling out the back of an ambulance while on duty in March 2016. He never returned to work and was dismissed 11 months later. His main injury was to his right shoulder which did not heal during this time. By the time of his dismissal he had not had the required surgery, let alone sufficient time to recuperate thereafter. A contributory factor to the delay was that a tear in the cartilage around the shoulder joint was not diagnosed until November or December 2016. A steroid injection in January made little difference and an arthroscopy was scheduled for 14 March, just over two weeks after he was dismissed.
As well as claiming that his dismissal was premature, Mr Muller said that the Trust had a duty to make reasonable adjustments to accommodate his disability, e.g. by providing him with office based work. As it happened, the arthroscopy confirmed that there was a tear which was repaired by surgery in July 2017. In January 2018 Mr Muller returned to occasional front line duties with a private ambulance service.
The Trust had encouraged him to apply for other jobs. There was a redeployment scheme. Mr Muller applied for a job in the archive department but was unsuccessful. In any event, he did not want a permanent reassignment.
He submitted a claim to an Employment Tribunal, for unfair dismissal, direct sex discrimination (a female comparator had been provided with office based work), disability discrimination based on failure to make reasonable adjustments and discrimination in connection with his dismissal.
On the matter of unfair dismissal, the key question was whether a reasonable employer would have waited longer before implementing the dismissal. Further, as is usual in such cases, the Tribunal had to consider whether the action taken by this employer fell within the “range of reasonable responses” available to an employer.
Having noted that an occupational health report had been obtained and that the employer had implemented its managing attendance procedures, Employment Judge Fowell applied the relevant law to the facts.
As for the duty to make reasonable adjustments, the Trust contended that it did not arise in this case because the duty was not triggered without a return date (pursuant to Doran v DWP – 2014). However, the Tribunal took the view that this case was different because an adjustment such as providing him with office based work would have enabled him to return to work. Judge Fowell noted that the Trust’s approach to this aspect of the matter had “more ingenuity than force” and commented that it was surprising that an NHS Trust would attempt to put forward such an argument.
The Tribunal went on to consider the Trust’s procedures that had placed Mr Muller at a disadvantage by reason of his disability (commonly referred to as provisions, criteria or practices, or “PCPs”). Having done so it was clear that Mr Muller had been disadvanataged by their application to him, specifically:
- the requirement to maintain a certain level of attendance;
- the general rule that temporary reassignment was not permitted unless there was a return to work date within the next four weeks;
- the criterion of spending two days a month in the Clinical Hub on front line duties; and
- the need for there to be a vacancy in the Clinical Hub before staff could be reassigned.
It would have been reasonable for the Trust to have removed the substantial disadvantage in each case. Further, his dismissal was clearly an unfavourable treatment as a result of his absence. Failure to apply procedures correctly in this case made the decision to dismiss disproportionate and accordingly it was unjustified.
The claim for direct sex discrimination was, unsurprisingly, unsuccessful.
As for unfair dismissal it was determined that a reasonable employer would have reassigned to another role, would have waited longer and would have taken into account the factors indicative of disability discrimination before taking the decision to dismiss. No reasonable employer would have disregarded the relevant policies and their correct application so, even applying the range of reasonable responses test, the dismissal was unfair. In simple terms, had he been reassigned to the Clinical Hub then he would have been able to keep his job as a paramedic. Accordingly the case was adjourned for a remedy.
This decision acts as a reminder that, even if an employer rigidly applies well-intentioned policies and procedures, the outcome can still be unfair dismissal and discrimination. What was required in this case was some leeway in the application of the processes and procedures which, had it been applied appropriately, could have avoided the dismissal altogether, as well as the discrimination.
It can be very hard for employers to get these things right so whenever action based on sickness absence and/or capability is being considered, it is vital to obtain expert advice from the outset. This type of advice is available at all times to our subscribers and within the terms of their monthly subscription. If you would like similar protection, call us free on 08000 832 832 or email me at firstname.lastname@example.org.