Paramedic who fell out of back of ambulance unfairly dismissed and discriminated against.

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.

Can a long-term sickness employee become practically unsackable?

The Employment Appeal Tribunal (EAT) have recently held an employee to hold ‘an implied right not to be dismissed’ when on long-term sick leave.

Naturally, this has caused many employees great concern
because long-term sickness absence, in itself, is usually fair reason to
consider dismissal.  Whilst there can be
various factors at play, including any potential disability of the employee,
the principle of an individual having to be present at work to fulfil their job
role (and employment) remains.

So what happened in the recent case of ICTS (UK) Limited v Mr A Visram to cause such concern?

Well, let’s set the scene briefly, Mr Visram was
contractually entitled to sickness benefit payments (termed ‘Long Term
Disability Benefits’) during any period of continuous sickness absence from
employment whilst he remained an employee. 
But, for various reasons, the insurer and employer didn’t wish to pay
them and, in doing so, Mr Visram was dismissed on grounds of sickness absence
and so ended his entitlement to contractual Long Term Disability Benefits payments
by the insurer (as the policy required his continued employment).

88 Year old’s Employment Tribunal Success

You are never old to have fun, to learn a new skill or to see new places, and Mrs Eileen Jolly has shown that one of those new places could be the inside of an Employment Tribunal after she demonstrated this month that you are never too old to bring a successful age discrimination claim against your employer.

Mrs Jolly, born in 1930 was employed in 1991 by the East Berkshire college of Nursing and Midwifery, which later become Royal Berkshire NHS Foundation Trust. Now, aged 88 she has successfully brought a claim against her employer for unfair dismissal as well as discrimination on the grounds of age and disability; and breach of contract.

Mrs Jolly was held to be disabled within the meaning of s.6 Equality Act 2010 by reason of her heart condition and arthritis. Despite this, Mrs Jolly had not taken a day off work in the past ten years, and even returned after suffering a cardiac arrest at work in 2004, where she was resuscitated by a surgeon.

Mrs Jolly’s complaints stem from her dismissal in January 2017, which the Trust maintains had nothing to do with her age, and rather was based solely on the grounds of culpability for her failure to adequately maintain a database of patients awaiting reconstructive surgery.

Legal professional privilege can be lost if what is being discussed is “iniquitous”

Most people are familiar with the idea that legal advice is “privileged” from disclosure, i.e. that is remains private between the client and his or her legal advisers. In the United States that has become a hot issue concerning President Trump and those around him, not least his longstanding personal attorney and recent convict, Michael Cohen.

Nearer to home, the issue has been considered by the Employment Appeal Tribunal in the case of X v Y Limited.

“X” was employed by “Y” as a lawyer from January 1990 until his dismissal on 31 January 2017. X suffers from type 2 diabetes and obstructive sleep apnoea. Records showed that there were concerns about X’s performance at work from 2011. X complained that measures taken by his employer amounted to disability discrimination and/or failure to make reasonable adjustments. He raised a grievance in March 2016 and an outcome letter was issued in June 2016.

In the meantime Y announced a voluntary redundancy process. Having been unsuccessful in applying for certain roles, X was placed in a “redundancy consultation process”.

At his employment tribunal hearing the employment judge accepted that, in May 2016, X overheard a conversation at the Old Bank of England pub in Fleet Street. The conversation was the subject of a claim of legal professional privilege. X said that a group of professionally dressed people including two women in their 30s or 40s came into the pub. One mentioned a disability discrimination complaint by a senior lawyer at Y. She said that there was a good opportunity to manage X out by severance or redundancy because there was a big reorganisation under way.

In his claim X relied on the conversation to interpret an email that he was sent anonymously in late October 2016. The email had been sent by “A”, a senior lawyer, to “B”, a lawyer who had been assigned to Y. The content of the email was not read out in court at the initial tribunal hearing. X maintained that the email contained advice on how to commit unlawful victimisation by using the redundancy/restructuring programme “as a cloak to dismiss” X. Y maintained that the email was legally professionally privileged.

Y terminated the employment of X, ostensibly by reason of redundancy, by three months’ notice ending on 31 January 2017.

In the employment tribunal, Employment Judge Tsamados decided that the email “did not disclose a strong prima facie case of iniquity”. Legal professional privilege can be lost if what is being discussed in “iniquitous”, i.e. (according to the Employment Appeal Tribunal);

“…beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy.”

On appeal Mrs Justice Slade noted that Judge Tsamados did not take into account the conversation in the pub. She concluded that it was right not to do so because it was not authorised by Y and could not therefore assist in determining its position and because there was no contemporaneous note taken.

However, as far as the email was concerned, there were relevant background factors to be taken into account.

Can you discriminate against a ‘non-disabled’ employee on grounds of disability?

 So, here we are: January. Christmas has come and gone and the warm lights of December have been replaced with the wind and rain of January. Sigh. But anyway, how was your Christmas? I hope it was a time of rest and good health.

My Christmas? As usual, it was filled with random discussions around the Christmas dinner table including, as ever, conversations about weird and wonderful Employment Law cases. In particular, some of my family members were shocked to hear that a non-disabled employee can suffer disability-related discrimination. One even suggested that I make the subject into a blog when I returned to work and, me being me, I couldn’t resist such an invitation…

So what am I talking about? Well, this was the case of Chief Constable of Norfolk v Coffey which concerned a female police officer who applied for a job in another police force. The police officer had a progressive hearing condition with tinnitus which, going forward, would continue to worsen. When originally recruited for her current police force, she failed the meet the usual criteria for police recruitment due to her low level of hearing but, after the police force arranged a practical functionality test, she was passed for duty and assigned for front-line duties. There were no concerns over her performance during her time in the role.

The issues started in 2013 when she applied to transfer to a new police force. As was standard, she attended a pre-employment health assessment. The medical practitioner concluded that, whilst her hearing level was technically just outside the usual police force parameters, she performed her current role with no difficulties and a practical functionality test was recommended. However, the new police force refused to follow this recommendation and, instead, declined her request to transfer due to her hearing below the recognised standard and, rather importantly, commented that it would not be appropriate to accept a candidate outside of the recognised standard of hearing because of the risk of increasing the pool of police officers placed on restricted duties.

Providing information about sickness absence in a reference ruled as discriminatory

Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services…

Disability Discrimination: Adjustments for candidate with Asperger’s Syndrome

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination. Background The facts of the case were that the Government Legal…

EAT Judgment: There can be no disability-related harassment claim without first establishing the disability

In the recent case of Peninsula Business Service Ltd v Baker, the Claimant had advised his manager that he had dyslexia and had also provided a psychologist’s report confirming the diagnosis. The Employer’s occupational health provider prepared a report confirming that the Claimant was likely to be considered disabled and recommended reasonable adjustments, however the Claimant’s…