Claimant v North East Ambulance NHS Foundation Trust
Outcome
Individual claims
The tribunal found the respondent had a potentially fair reason (capability due to long-term absence), followed a fair procedure throughout, consulted extensively with the claimant and occupational health, offered alternative duties, and that by September 2022 the stage had been reached where the respondent could not reasonably be expected to wait any longer for the claimant to return to work. The dismissal fell within the range of reasonable responses.
The tribunal accepted the dismissal was unfavourable treatment because of something (long-term absence) arising in consequence of the claimant's disability (anxiety and depression exacerbated by COVID-19 concerns). However, the tribunal found the dismissal was a proportionate means of achieving a legitimate aim (effective workforce management). The respondent had properly balanced the needs of the employer against the impact on the claimant, and the continued absence had a significant impact on service delivery.
The tribunal found that whilst the respondent applied a PCP (FFP3 masks only for staff performing AGPs) and the claimant was a disabled person, the provision of an FFP3 mask would not have had a real prospect of removing the disadvantage. The claimant remained equivocal about whether and when he could return even if given an FFP3 mask. The tribunal accepted the respondent's evidence that FFP3 would not provide the protection the claimant demanded, that national guidance supported FFP2 for his role, and that the claimant was offered reasonable alternatives including non-patient-facing work in stores and a phased return.
Facts
The claimant, an ambulance care assistant with long-standing depression, developed heightened anxiety during the COVID-19 pandemic about contracting the virus. After being asked to transport a COVID-positive patient in May 2021, he suffered a panic attack and went on sick leave. He insisted that being provided with an FFP3 face mask (rather than the FFP2 surgical mask provided under national guidance for his non-AGP role) would alleviate his anxiety and enable him to return to work. The respondent refused, following national guidance that FFP3 was only for staff exposed to aerosol-generating procedures. The claimant remained off work for 16 months, consistently equivocal about when or if he could return even if given FFP3. He was dismissed in September 2022 for long-term absence after the respondent exhausted alternatives including offers of non-patient-facing work.
Decision
The tribunal found the claimant was disabled from May 2021 due to anxiety and depression exacerbated by COVID concerns. However, all claims failed. The dismissal was fair because the respondent followed a thorough procedure, the claimant could not say when he would return even with FFP3, and the stage had been reached where the employer could not wait longer. The failure to provide FFP3 was not a breach of the duty to make reasonable adjustments because it would not have had a real prospect of enabling the claimant's return to work. The dismissal, though unfavourable treatment arising from disability, was a proportionate means of achieving the legitimate aim of effective workforce management.
Practical note
An employer defending a long-term sickness dismissal of a disabled employee must show both that the dismissal was within the range of reasonable responses and that it was a proportionate means of achieving a legitimate aim; however, an alleged reasonable adjustment need not be made if it would not have a real prospect of removing the disadvantage, even where the employee subjectively believes it would help.
Legal authorities cited
Statutes
Case details
- Case number
- 2500323/2022
- Decision date
- 22 January 2024
- Hearing type
- full merits
- Hearing days
- 5
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Ambulance care assistant
- Service
- 9 years
Claimant representation
- Represented
- Yes
- Rep type
- barrister