A senior cancer care nurse was unfairly dismissed from his job in the NHS, and unlawfully discriminated against because of disability, an employment tribunal (ET) has ruled.
An Aberdeen tribunal ruled Mr J Horn, who developed a depressive illness in 2016 after feeling stressed at work during a period of staffing shortages, was unfairly dismissed on health grounds after he began a phased return to work following a long period of sick leave.
The tribunal said his employer, the Grampian Health Board, dealt with the issue in an “insensitive and unreasonable” manner. It found it made no consideration of Horn’s disability status during the process of dismissing him, which the ET ruled amounted to discrimination on the grounds of disability.
Horn had worked for the Grampian Health Board since 1995, first as a haematology nurse and subsequently as a specialist cancer care nurse, also chairing the East Scotland Haematology Group.
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From 2012 onwards, the tribunal heard that Horn’s department suffered “a catalogue of staff shortages and staff changes”. After 2013, Horn claimed that he was left without a line manager. The respondent disputed this, claiming he was assigned a manager, but Horn said this individual had told him she was very busy with her workload, from which he understood that she was too busy to line manage him.
In 2014, the charge nurse at the haematology day unit retired and was replaced by an individual with minimal haematology experience, leaving Horn as the most qualified nurse in the department.
In 2016, two new specialist nurses were recruited, which added pressure on Horn as he had to train and support them having never line managed anyone before. This coincided with him developing a depressive illness, and the tribunal heard that he began to dread attending work.
On 11 August 2016, Horn was signed off as long-term sick due to “stress at work”. The health board’s attendance management policy stated that in these circumstances staff should be referred to occupational health, but Horn did not receive any consultation until 5 December, where he was referred to a ‘nurse manager’ rather than an occupational health specialist.
After three consultations, Horn was not offered any treatment and he continued to suffer with anxiety and stress related to his employment. He began to see a psychotherapist privately.
Horn began meeting with an occupational health physician. On 2 May 2017, he started discussing a phased return to work with his line manager and, after further discussion, eventually returned to work on 13 September 2017.
Horn felt positive about his return to work, reporting that he “began to feel more part of the team”. But on 29 September, an anonymous complaint was lodged claiming Horn had been carrying out other paid work while signed off sick and citing “inappropriate behaviour outside of work”.
An investigation by HR found Horn had not committed any wrongdoing, but the complaint and investigation process was greatly distressing to him. He told the tribunal that he was “back to rock bottom” and “struggling to cope”.
Horn took another period of annual leave, returning to work on 13 November. He emailed his line manager saying: “It isn’t working out for me. I am seeing occupational health on Thursday but I think the outcome will be that I have to resign.”
Notes from the subsequent occupational health meeting said options discussed with Horn included “redeployment and termination of contract on medical grounds”, but he was advised not to resign.
On 17 November, Horn was signed off from work again for 42 days due to stress. He was invited to a meeting on 21 December to discuss his options, but was not warned that the meeting was a formal one, or that termination of his contract was one of the options. This was only revealed to him in a letter dated 14 December, which he received on 18 December, three days before the meeting in question.
Horn attended the meeting with his line manager and the assistant HR manager, accompanied by his husband. The meeting lasted less than 10 minutes and no minutes were taken. He was informed that he was to be dismissed on the grounds of ill health. No other options were discussed.
Horn appealed this decision, claiming that he “was not given fair notice of, nor time to prepare for the meeting”, and argued that the decision to dismiss him was “premeditated”. He also argued that during his absence he had “next to no support from HR or NHS Grampian in general”. But his appeal was dismissed at a hearing on 7 March 2018.
The ET found that Horn’s dismissal was unfair, and that he had been discriminated against on grounds of disability, stating that “these were not the actions of a reasonable employer”.
It ruled that there was “no meaningful discussion” during the meeting in which Horn was dismissed, concluding that Horn had a “reasonable expectation” that other options would be discussed in the meeting. The tribunal also noted that while his employer accepted that the claimant was disabled, “it was not a factor [HR] had considered when [they] took the decision to dismiss”, amounting to discrimination.
The court gave the parties four weeks to agree compensation extra-judicially before it sets a remedy hearing.