A GP receptionist whose medical conditions – which are classed as a disability under the Equality Act – placed her in the high-risk group during the pandemic was discriminated against when she was not allowed to work from home, a tribunal has ruled.
The tribunal found that Staines Road Surgery (SRS) put Tracy Keown, who experienced microvascular angina, at a “substantial disadvantage'' when it did not provide her with a laptop or acquire funding for a new phone system as the practice manager did not think it was “practical” for her to work from home.
The surgery’s argument that Keown couldn’t work from home because she was required to perform “certain tasks” was thrown out by the judge, who found in cross examination that she never had to perform those tasks.
A further claim of unauthorised deduction of wages was not upheld.
The London South Emplouyment Tribunal heard that Keown was employed at the Twickenham-based GP surgery as a receptionist from 11 November 2019, until her resignation on 23 February 2021. Her tasks included general reception duties, alongside opening and closing the surgery, opening the mail, chaperoning patients and performing CPR when necessary.
On 17 March 2020, Keown texted practice manager Ms Butler to say she was seeking advice on whether she needed to self-isolate because of her heart condition, and “clearly informed” her that she had a microvascular heart disease. Butler also confirmed to the tribunal she was aware that Keown had been “investigated for a heart condition”.
Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter
The tribunal heard that Keown was eventually diagnosed with microvascular angina, which placed her into the high-risk group for Covid. While this wasn’t confirmed by her GP until May 2020, the tribunal said that SRS knew she had a heart condition, would be considered high risk during the Covid pandemic and was therefore disabled. She had also sent them guidance from The British Heart Foundation to similar effect.
The Guidance to General Practitioners issued on 6 April 2020 recommended that employers should carry out a risk assessment for disabled employees to ascertain any reasonable adjustments they may need, but the tribunal heard that no risk assessment was done for Keown.
The tribunal accepted that the failure to carry out a risk assessment didn’t amount to a failure to make reasonable adjustments, but it rejected evidence that the practice didn’t need to carry out an assessment because SRS was a “professional GP [that] had already taken measures to protect staff” and that “no such assessment was necessary”.
It also found evidence to suggest that SRS did “immediately consider home working” and emails were exchanged between Butler and Keown outlining the possibility of her working from home.
On 23 March 2020, the NHS Richmond Clinical Commissioning Group sent an email making recommendations that high-risk employees should work from home “by default” and that it would prioritise installing a tool to facilitate home working if that was the case. It also detailed how to get electronic prescribing and telephone systems up to enable forwarding calls, “allowing receptionists to work from home”. The tribunal said: “We repeat: by this date [Staines Road Surgery] knew [Keown] was at high risk”.
The email also said each practice would receive two laptops for home working and, on 18 March, Butler emailed about the provision of a laptop for a member of staff with a “health condition” they would like to set up. She emailed again on 23 March, saying the practice had a “member of staff they are eager to set up”, then on 26 and 27 March Butler chased up the laptops. The tribunal said it was “clear” the laptop was intended for Keown.
However, it noted that there was no evidence to suggest that the laptops were provided to the practice, which claims they received two laptops in “late April” but added: “We of course know that no laptop was given to [Keown],” and that there was no evidence as to why a laptop was not provided to her and “why she could therefore not have worked from home”.
On 25 March 2020, an email was sent explaining that funding would be applied for to get a new phone system to allow practices to redirect phone lines to staff working from home. Again, the tribunal said there was “no evidence” as to why a phone line was not provided to Keown, and why “telephone calls were not and could not have been diverted to her, thus enabling her to have worked from home” and that there was work available that she could have performed at home.
The tribunal said SRS claimed Keown couldn’t work from home because she was “required to perform certain tasks”, such as opening and closing the surgery, opening post, chaperoning patients and CPR. The tribunal found that none of those reasons applied, as Keown never had to chaperone, if CPR was required “other members of staff” would carry it out, and Butler told the tribunal in cross examination that they “didn’t require” two receptionists to open and close.
Judge Apted said that SRS initiated some steps to facilitate home working but none of them were completed: “We find that [SRS] could reasonably have provided [Keown] with a laptop, that they could reasonably have diverted a telephone line to her home, and additionally and for completeness, we find that [SRS] could reasonably have reallocated work among other reception staff in order that the claimant could have worked from home.”
The tribunal ruled that SRS put Keown at a “substantial disadvantage in comparison with persons who are not disabled”, and that a “reasonable step” would have been to allow her to work from home. It also rejected Butler’s evidence that it was “not practical for a receptionist to work from home”.
The tribunal ordered SRS to pay Keown £45,000 for failure to make a reasonable adjustment, discrimination arising from disability, health and safety detriment and unpaid holiday pay.
Kiersten Lucas, employment partner at Stephenson Harwood, said the case demonstrated the lengths to which employers needed to go to make reasonable adjustments, adding that it could be a “sign of things to come”.
“The pandemic led to a seismic shift in the uptake of remote working and employers may find it increasingly difficult to refuse reasonable adjustments of this nature where there are no cogent grounds for insisting on office-based working,” said Lucas.
SRS has been contacted for comment. Keown could not be reached.