Ms D’Silva worked as a receptionist for Croydon Health Services NHS Trust (CHS) from 2003 until her dismissal in 2018. Ms D’Silva was disabled under the Equality Act due to suffering with stress and anxiety. After a restructure, as part of her role she was required to work in a patient facing role on a front desk. Due to her illness, Ms D’Silva was “petrified” to work with the public. After years of occupational health assessments and sickness absence reviews, Ms D’Silva was dismissed on the grounds of capability due to ill health.
Was she unfairly dismissed?
D’Silva v Croydon Health Services NHS Trust (CHS)
Ms D’Silva worked as a receptionist for Croydon Health Services NHS Trust (CHS) from 2003 until her dismissal in 2018. Ms D’Silva was disabled under the Equality Act with stress and anxiety and had a long period of absence in 2016-2017 with sick notes referring to stress related problems. When Ms D’Silva returned to work in 2017, there had been a restructure and she was given a role as patient pathway support in the chest clinic team which included administration and receptionist work.
An Occupational Health assessment was conducted, and it was agreed that Ms D’Silva must complete a stress risk assessment and have a phased return to work on reduced hours. At the return to work meeting two options were discussed in relation to Ms D’Silva’s return. A back office role involving marking up of clinics, scanning and booking follow up appointments, opening post and sending out patient letters, or working on the reception desk, checking in patients and completing follow ups. Ms D’Silva selected the first option, although there was no indication from either Ms D’Silva or management that she would not be able to work on the reception desk at this stage.
At a review meeting, Ms D’Silva claimed that the back office role was a junior role, below her capabilities and “stressing her out”. Management explained that they did not want to overload her as she was on a phased return. A discussion was had about where Ms D’Silva might sit in the future and whether it would be at the front desk. Ms D’Silva said she was not ready to work at the front desk. Management agreed but set out that Ms D’Silva would be required to work at the front desk in the future in order to fulfil her job role.
A further occupational health assessment concluded that Ms D’Silva was fit to work but not at the front desk. Ms D’Silva was then absent with sciatica and again referred to occupational health. At this time, her manager told occupational health that Ms D’Silva was unable to complete her duties and was not engaging with her manager and colleagues. They also asked why Ms D’Silva couldn’t complete work “within her role on the reception desk”. Occupational health said that Ms D’Silva could work in the back office but was not mentally capable of working anywhere else.
Ms D’Silva was then off again for 20 days with shingles which triggered a sickness absence review at which she was issued with a stage one warning. On the same day, HR told Ms D’Silva that her current role was temporary until she felt able to work on the front desk. Ms D’Silva said she was not aware of this and asked if HR could clarify this with occupational health. After this meeting, Ms D’Silva was very ill and taken to A&E with chest pains and stress.
Another occupational health meeting followed which said that Ms D’Silva was “unfit” to engage in a patient-facing post. It added if she could not work in the back office her “only other option” would be redeployment to a non-patient facing role. She started receiving bulletins for redeployment roles. A suitable role was not found for Ms D’Silva and she was signed off with long-term sick from June – August 2018. Whilst signed off sick she had an occupation health meeting where she said that she wanted to return to work but was ‘absolutely petrified’ of a patient facing role.
On her return to work in September several meetings were held to discuss redeployment, but a role was not found for Ms D’Silva. Ms D’Silva was asked to attend a third stage sickness absence meeting where she was told there was “no evidence” she had applied for any jobs. Occupational health again suggested a non-patient facing role as a reasonable adjustment.
At the long-term absence review it was concluded that there was no way for Ms D’Silva to return to work and that she had ‘unreasonably high’ levels of sickness absence. She was dismissed on grounds of capability due to ill-health. Ms D’Silva appealed the decision but was unsuccessful.
Ms D’Silva brought claims of failure to make reasonable adjustments, unfair dismissal, disability-related harassment and victimisation.
The ET dismissed the claims for disability-related harassment and victimisation but found that Ms D’Silva had been unfairly dismissed and there had been a failure to make reasonable adjustments.
The tribunal found that that CHS did not go far enough in supporting Ms D’Silva to find a new position. It was not up to Ms D’Silva to find a new position by way of the vacancy bulletins. It was CHS’ duty to make reasonable adjustments or, in unfair dismissal terms, to take reasonable steps to investigate alternative work and consider redeployment.
This case highlights two important issues for employers.
First, that the temporary nature of phased return roles must be communicated properly and early to employees. By definition, they should also be temporary! The longer an employee is in a phased temporary role the harder it will be for employers to require employees to return to their full time role and/or hours.
Secondly, it is the duty of an employer to make reasonable adjustments and not the employee’s responsibility to suggest adjustments. Employers need to take a proactive role to try and identify any adjustments which would avoid the substantial disadvantage caused by the employee’s disability, in conjunction with any advice from occupational health. In some cases, this could include creating a role for an employee which makes use of their skills to avoid their dismissal, providing it is a valid role within the organisation.
If you have any queries about reasonable adjustments or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.
This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.