Disabled receptionist ‘petrified’ of working with public who was denied back office role wins unfair dismissal claim

Judge rules NHS trust failed to make reasonable adjustments for claimant’s anxiety  after lack of support in offering suitable redeployment opportunities 

A NHS receptionist who developed a phobia of working with the public and was refused work in the back office by her manager was unfairly dismissed, a tribunal has ruled.

Mrs D’Silva was awarded more than £56,000 after Croydon Health Services NHS Trust (CHS) dismissed her from her role as a receptionist when she told occupational health (OH) that she was “petrified” of the general public.

Judge Corrigan ruled that the trust contravened the Equality Act when it failed to make reasonable adjustments for D’Silva, and that D’Silva was unfairly dismissed.

“It was the respondent that had the duty to make reasonable adjustments or, in unfair dismissal terms, to take reasonable steps to investigate alternative work and consider redeployment. The respondent did not do so,” she said.

Corrigan added that, if there had been more support with redeployment, D’Silva would have “returned to work much earlier”.

Further claims of victimisation and disability-related harassment were dismissed.

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The tribunal heard that D’Silva, who has stress and anxiety, worked at CHS as a receptionist for 18 years until her dismissal in November 2018.

Following a period of long-term absence for a stress-related problem, D’Silva returned to work in February 2017 to find there had been a restructure. Her new role as patient pathway support in the chest clinic, which had over 100 patients a day, included both administration and reception work.

Following a stress risk assessment with OH, D’Silva agreed with her new manager and the team leader of the cardio-respiratory department that she should have a phased return to work. The tribunal noted there was no discussion about duties she could not perform at this time.

D’Silva told her manager, Tara Terry, she was “not ready” to work at the front desk and it was agreed that she would complete a task called “marking up” which did not require her to work on the front desk, although Terry later told OH the nature of D’Silva’s work “dictates she will need to spend some time on the desk”.

On 5 June 2017, an OH assessment concluded D’Silva was fit to work but not on the front desk.

Following a period of sickness absence, in June D’Silva was referred by Terry to OH again. Terry told OH that D’Silva was unable to complete duties and was not engaging with her manager and colleagues. Terry also asked why D’Silva couldn’t complete work “within her role [on the reception desk]”.

OH told her that D’Silva was fit to work in the back office, “but does not feel mentally able to work elsewhere”.

D’Silva was then absent for 20 days between July and August with shingles, which prompted a sickness absence review on 1 November where she was issued with a stage one warning. The tribunal noted that this was “very onerous” considering she has two disabilities.

On the same day, in another meeting with an HR advisor, D’Silva was told her current role was temporary until she was deemed fit to do reception work. D’Silva said she was not aware of this, nor was she able to work with patients, and asked for them to clarify with OH.

The tribunal heard that after this meeting D’Silva became very sick and went to A&E. She was signed off work until 30 November for chest pains and stress at work.

D’Silva then had another conversation with OH, which said she would be “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.

On 10 January 2018, in a stage two long-term sickness review meeting, D’Silva was told her current back office role was unsustainable and redeployment was the “only option”. She started receiving a general bulletin with redeployment vacancies, but the tribunal said no attempt was made to identify suitable roles specifically for her.

After several failed attempts to find a new role, D’Silva was signed off sick from 29 June until 31 August 2018.

While still signed off sick, on 10 July, she saw OH which reported she remained “strongly of the view” that she wanted to return to work but was “absolutely petrified” of working in a patient-facing role.

On her return to work, from September to November 2018, several meetings were held between D’Silva, the HR advisor and OH to discuss redeployment, but a resolution was found.

During that period, on 27 November, D’Silva attended a stage three long-term sickness absence where she was told there was “no evidence” she had applied for any jobs. On 4 December, OH once again suggested, as a reasonable adjustment, that D’Silva not be given patient-facing duties and be redeployed to a non-patient-facing role.

However, the stage three long-term sickness absence review concluded there was “no outlook” for D’Silva returning, and that prior to this her levels of sickness had been “unreasonably high”.

D’Silva was dismissed with notice on grounds of capability due to ill-health, but was told any opportunities of redeployment would be considered. D’Silva appealed the decision but was unsuccessful.

A spokesperson for Croydon Health Services NHS Trust told People Management it would learn from the findings and reflect on how it can improve on its processes now and in the future. "We are committed to providing an equal and inclusive working environment for every employee and are working with the Trust’s Equality, Diversity and Inclusion leads, as well as dedicated staff networks, to further improve the support available to our teams.” 

The tribunal awarded her £6,780.54 compensation for unfair dismissal and £49,904 in compensation for contravention of the Equality Act 2010.

Andrew Crudge, associate in employment and immigration at Trethowans, said in this case, the employer’s failure to proactively offer suitable redeployment roles amounted to a failure to make reasonable adjustments.

“This highlights the fact that it is the employer’s duty to make any reasonable adjustments, and it is not the employee’s responsibility to come up with suggestions for such adjustments,” said Crudge, adding that the NHS trust was a larger employer with “significant scope” for redeployment opportunities but a smaller employer could argue to the contrary.

Sophie Vanhegan, partner at GQ Littler, added that this case highlighted the importance of communicating that roles given as part of a phased return may be temporary. “The longer [an individual does] the adjusted hours or role, the more difficult it may become to be able to require them to go back onto their original hours and/or full duties,” she said.

D’Silva could not be reached for comment.