Disabled hospital secretary unfairly dismissed for repeatedly checking her own medical record, tribunal rules

Employee was not ‘culpable or blameworthy’ because her actions were the result of her depression, anxiety and fibromyalgia, says judge

A hospital clerical officer has been awarded £269,114 after she was unfairly dismissed and discriminated against for repeatedly checking her own medical files while at work.

The Leeds employment tribunal found Miss S J Austin, who had worked for Leeds Teaching Hospitals NHS Trust for 25 years before her dismissal in May 2017, was unfairly dismissed and suffered disability discrimination because the trust did not take into account the fact that Austin’s behaviours arose from her disability. 

The tribunal heard Austin suffers from depression, anxiety and chronic pain condition fibromyalgia, which interfered with her ability to work. These conditions, particularly her anxiety and fibromyalgia, caused her to repeatedly check her own medical record and that of her mother on three occasions.

After becoming aware that Austin was checking these records, the trust commenced an investigation, which the tribunal heard caused Austin further anxiety.

Because of her anxiety, she “pestered” her line manager for information about the investigation and was suspended as a result. She was then dismissed two years later.

Austin brought claims of breach of contract, disability discrimination and unfair dismissal to the Leeds tribunal on 3 August 2017.

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The tribunal found Austin had been unfairly dismissed and subjected to disability discrimination because the trust did not take into account the fact that Austin’s behaviour – accessing medical records and pestering her manager – arose from her disability, and those behaviours were the cause of her suspension and dismissal.

The tribunal also found Austin’s dismissal was in breach of her contractual right to notice, and that the trust had not shown that her suspension or dismissal were a proportionate response in the circumstances. 

In her ruling, employment judge Hannah Bright said Austin could not be found "culpable or blameworthy" because her conduct was the result of "long-standing, pre-existing physical and psychological conditions".

When determining an award, the tribunal factored in the fact that Austin had attempted to find another job since her dismissal and the tribunal proceedings. Austin had applied for "around 50 jobs over the course of two years" and attended a number of interviews but was repeatedly unsuccessful. 

The tribunal heard testimony from Austin that her "performance at interview was poor". It also found that the "inaccurate and misleading reference" that Leeds Teaching Hospitals NHS Trust provided to prospective employers "no doubt impeded" her ability to find a new job.

The tribunal ordered Leeds Teaching Hospitals NHS Trust to pay Austin £265,719 as compensation for disability discrimination, including interest of £6,962, and a further £3,395 as damages for breach of contract in respect of notice. 

Carl Atkinson, partner at gunnercooke, said that while cases such as this were fact-sensitive, and the judgment did not provide a “get out of jail” card for disabled employees acting in breach of a disciplinary policy, it emphasised the importance of managers understanding why employees had acted in a particular way.

“Employers must expect to be challenged on what steps they undertook to understand the link between the employee's disability and the behaviour that is the subject of the disciplinary process,” Atkinson said. “If there is a causal link, as there was in this case, and the employer has not understood this, they will run the risk that the tribunal will decide that the disciplinary sanction was a detriment imposed owing to, or caused by, the disability.”

In a statement before the tribunal, Austin said the experience had left her feeling paranoid about who she could trust. She said: “I have lost my job, my career, everything that 25 years’ service has built up. I’ve lost my confidence, my daily routine and my structure. I have lost relationships and friends. I have lost the ability to make or maintain either. I’ve lost the person I used to be.”

Jenny Lewis, director of HR and organisational development at Leeds Teaching Hospitals NHS Trust, said the trust was disappointed but accepted the tribunal's ruling.

"We respect the findings of the tribunal and have subsequently made a number of changes to our policies, procedures and training to ensure all staff are clear in relation to their responsibilities with regard to accessing a patient's medical record, including their own record and the records of members of their family," Lewis said.

"We have also taken learning from this case in relation to reasonable adjustments for our disabled colleagues.”