A care home manager was subjected to disability-related harassment and was unfairly dismissed after an HR representative asked her GP about her mental health without her consent, a tribunal has ruled.
A remote tribunal ruled that Every Sensation Care’s questions to Ms A Searle’s GP did not entirely reflect those she had agreed to, and it amounted to harassment.
Employment judge Wade said the care home’s handling of the request “beggars belief” and that Ms Kauser’s – the HR representative – conduct was “high handed, arrogant and disingenuous”, as she “assumed” Searle would not see the change in approved questions. This amounted to disability-related harassment.
Searle’s claim for constructive unfair dismissal and disability harassment succeeded, but additional claims under the Equality Act were dismissed.
Searle was employed as a care home manager on 29 May 2017 at a branch of Every Sensation Care, which provides nursing and social care for older adults.
The tribunal discovered that, in 2008, Searle was diagnosed with idiopathic intracranial hypertension (IIH), a neurological condition marked by an increase in cerebrospinal fluid in the brain.
Signs and symptoms of IIH include headache, pain and other symptoms that get worse or may be brought on by stress.
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The tribunal heard that, as a result of the changes in her life brought on by IIH, she began to experience “significant episodes” of depression and anxiety, and that the pandemic caused her to work additional hours, which was “very taxing”.
Following an outbreak of Covid at the care home in January 2021, Searle informed her line manager and director, Mr Younas, that she was experiencing a flare up of her IIH, which was exacerbated by stress.
After hearing about her symptoms and medication, Younas immediately granted her a week off, with another manager covering for her. Later in February, she took an additional week off.
The tribunal heard that Searle began to feel mentally ill in March, April and May. Her personal routine, sleep and household chores all suffered, but she managed to go to work and function as “best she could”.
Younas was unaware that Searle was ill between March and May, but, by the end of May, she could not concentrate or complete a small rota task that would normally have been easy for her. She told the tribunal that she had a “nervous breakdown” at work, was in “tears, upset, and realised she was sick” at that point.
She went home and texted Younas to explain the situation, and that she was seeking mental health help through her GP and the community mental health team, named IAPT.
Following this, Searle told him that she would begin taking antidepressants around 11 June, that she would use holiday until 21 June, and that she “should be back” on 28 June, as per her doctor’s advice.
On 21 June, after a break of about three weeks, Younas contacted Searle by text to inquire who had prescribed her antidepressants, how long she had been taking them and what her “prescription history” was.
He also asked if she could sign a form giving consent for a medical report to be obtained to determine when she would be able to return to work, as he needed to ascertain if she would be able to perform day-to-day tasks.
Searle said she would be “happy to comply” with any request as long as it involved her health. She added, however, that since she was on "holiday" and had not been invited to any "wellbeing meetings", she could not be expected to make an appearance.
Searle also told him that her nurse practitioner had said that, as she had only started treatment 10 days ago, asking for a medical report “so soon” was “pointless” as she needed to give the tablets and therapy a “chance to work”.
On 23 June, Younas sent a consent form to Searle containing the proposed questions for her GP.
Despite being informed of Searle’s mental health nurse’s opinion that the report was “premature”, he maintained that he needed to be able to provide a likely return date on the CQC form – as an absence of a registered manager for more than 28 days needed to be reported – and that he wanted advice on this.
On 1 July, Searle filed a grievance, as she was initially “troubled” by the process of getting a medical report so quickly and by how her illness was handled in comparison to any other employee. But the tribunal accepted the explanation that Younas gave her in relation to his duty of care to the residents and CQC regulation as the reason to seek early advice, and that that was “reasonable and proper cause.”
She told the tribunal that one question – ‘Did she do a self referral to mental health on 1 June? – was particularly troubling to her, as it seemed to “cast doubt on her integrity”.
On 13 July, Searle was provided with the GP report and her consent was attached, but it “immediately became apparent” the questions asked of her doctor by Kauser did not exactly match those she had agreed to.
The tribunal learned that the following two questions were “purposefully omitted” by Kauser:
When is [Searle] likely to return to work?
Will the business have to make any reasonable adjustments?
Instead, she asked:
Has [Searle] discussed what caused this?
[Searle’s] doctor's note stated that she is depressed and stressed; would you also advise us, as an employer, to get in touch with NMC regarding fit to practise?
The tribunal said it “beggars belief” that the reasonable adjustment and likely return questions were “completely omitted” by Kauser and that additional questions on the cause of ill health and a referral to the NMC on fitness to practise were added in.
As the GP did not advise – because he was not asked – on reasonable adjustments or likely return date, the tribunal said the purpose of the report and the completion of a CQC form was “not fulfilled”.
The tribunal found that Kauser’s actions put “trust and confidence” in jeopardy with conduct that was “incompetent and careless”. It said Kauser “did not care” to have the original consent letter in front of her when she drafted the letter to the GP.
It also said trust and confidence was damaged by “conduct which is high handed, arrogant and disingenuous”, as Kauser “assumed” the letter would not be seen by Searle, and that it “strikes at the heart” of the confidence an employee should have in their employer when dealing with “private health matters”.
On 24 July, Kauser wrote a letter dismissing Searle’s grievance and asserting that “nothing improper” had occurred. She argued that Searle had consented to a letter and then “withdrew consent”, and claimed that she asked the same questions, “but they were just worded differently”.
But the tribunal ruled the dismissal of Searle’s grievance was “disingenuous” and “without reasonable and proper cause”. It also said it was likely to “destroy or seriously damage trust and confidence”.
On 25 July, Searle wrote a letter of appeal pointing out that there had been deceit in the GP questions issue and a breach of data protection principles, and that she had not been provided with the meeting minutes.
She asked for the minutes within two days, which would have been 10 days or so after the grievance meeting. Younas invited her to an appeal meeting to take place on 5 August, but could not, with that invitation, provide the minutes.
Searle resigned on 4 August 2021, after receiving meeting notes that she felt were insufficient and did not accurately reflect the meeting.
Judge Wade said Every Sensation Care most likely would have learned about the negative impact on day-to-day activities and the disadvantages Searle faced, including anxiety from general and work-related communications, if it had held a welfare meeting.
He said Searle had insight into her condition and thought she needed a break; she had discussed this with her employer in an open and honest manner, and she had a plan to recover, return to work with their support, and then search for a new position.
However, “the violation we uncovered did not do this”, rather, it "stigmatised her mental health condition" and questioned her status as a registered nurse, all without consulting anyone about supportive measures. It was "extremely hostile to her career and exacerbated her anxiety" in this way.
The tribunal further found that Younas’s mental illness prejudice was evident in the various strategies, whether it was "conscious or unconscious", and that in Searle's mental health circumstances there was a clear need to protect the company, whereas there had been none in her long-standing IIH.
The judge ruled that Searle’s claim of disability-related harassment regarding questions that were asked of her doctor without her consent was successful, and awarded her £17,000 in damages for emotional distress and psychiatric injury, and £1,856.92 in interest.
Employment lawyer’s reaction
Andrew Willis, associate director of legal at Croner, said this case served as a “crucial reminder to implement and follow an effective absence management policy”.
Willis added that instead of jumping straight into a medical report from her GP, the employer might have prevented the situation from escalating as it did if it had taken the time to conduct a welfare meeting, show empathy and support, and discuss what reasonable adjustment might benefit the employee. “A welfare meeting should always be the first step when an employee goes off sick, or when they remain in work but raise concerns about their physical, mental or emotional health, and providing training to managers on how to conduct these meetings effectively can ensure they are positive and useful for both sides,” said Willis.
Every Sensation Care has been contacted for comment. Searle could not be reached.