A farm worker with 41 years of service who injured his back after slipping on ice while working, but refused to let his employer access his medical records, was unfairly dismissed and a victim of disability discrimination, a tribunal has ruled.
The Teeside tribunal found that Mr A Daniel – who required spinal surgery and was left with a long-term nerve issue – provided fit notes for a year, but would not let his employer view his medical records.
The judge ruled that despite the owners of Spence and Sons farm showing a “legitimate aim” of ensuring the long-term running of the business when trying to establish Daniel’s ability to work, they were given the option to have Daniel evaluated by the farm’s own occupational expert, but they did not take up this opportunity. If this evaluation had been carried out, it would have determined that Daniel’s “physical impairment had a substantial effect” on his day-to-day activities, the judge added.
Background
The tribunal heard that Daniel – who was initially employed as a farm worker by Mr C Spence’s (CS) grandfather in 1981 – ran the farm with CS and then later his son, Mr A Spence (AS), until his dismissal on 5 April 2022.
On 7 January 2021, Daniel slipped and fell on ice, but continued to work “while in pain”, taking painkillers prescribed by his GP. His injury eventually resulted in Daniel being admitted to hospital on 4 February for spinal surgery, leaving him with a physical impairment called cauda equina – which is broadly described as a nerve root dysfunction.
Daniel was on annual leave when this surgery happened and, while he informed CS of his hospitalisation, he also warned he would not be returning to work once his leave ended on 8 February. He was initially signed off until 1 April, but provided regular fit notes up to 16 April.
The notes explained that Daniel’s condition caused “symptoms of sciatica on both sides of the back, weakness or numbness in the legs, difficulties in urination and defecation”.
On 1 April, CS wrote to Daniel asking for sight of his medical records to “determine” if he could continue to undertake agricultural work, but, on 12 April, Daniel refused as he considered it was “too early” to discuss a return to work as he was awaiting physiotherapy.
The tribunal noted that CS asked on a “number of occasions” for consent to view the medical records, all of which were refused. Daniel told the tribunal he believed this to be harassment and an attempt to “engineer his dismissal”, but the tribunal determined CS was “genuinely seeking” information on whether he was likely to return to work. At this point, AS was running the farm alone.
On 17 August, Daniel was awarded a personal independence payment to help with extra living costs. At this point, CS contacted the National Farmers’ Union (NFU). According to the tribunal, notes were made of the call to the effect of: “NFU say no further need to pay the employee, give him a seven-day notice to appeal and then if he doesn’t contact he can be terminated.”
On 17 September, CS again asked via letter to see Daniel’s medical records, stating he was “anxious” to know when he could return to work, how he could be supported and if any reasonable adjustments could be made. The letter also said if the records were not provided a “meeting would be held to make a decision on the matter of employability”.
The tribunal noted that Daniel “reasonably concluded” that they were actively considering his termination.
On 22 September, Daniel “indicated” he would be prepared to attend a medical consultation – with a view to obtaining an occupational health report at the cost of the farm – and that he planned to return to work. However, he also said his father had just died, and asked for “this week” to recover from his loss.
The tribunal said CS “did nothing” during this period. He told the tribunal he was waiting for Daniel to contact him, but the tribunal did not accept that explanation as Daniel explicitly wrote that it would be a week before he contacted.
The tribunal said although at this point Daniel was content to be examined so CS could “obtain a prognosis on his condition, the matter was not further pursued”.
Daniel continued to send fit notes until 5 April 2022, when he received a P45 in the post with a backdated termination date of 17 September 2021. At this point, Daniel was paid his outstanding holiday pay.
On 27 May 2022, Spence and Sons’ accountants wrote to Daniel to explain the P45 was sent in error and Daniel was in fact still on the payroll. The farm owners then made various attempts to engage Daniel in sickness/welfare review meetings, all of which Daniel refused to attend on the basis, he contended, his employment had already ended.
Daniel was awarded £26,811.12.
Judge’s comments
Employment judge TR Smith said the “hallmark of a fair capability dismissal is obtaining up-to-date medical advice, a meeting with the employee and an appeal process”.
“None of this occurred,” they added.
Smith also said that Daniel had made it clear he was happy to be evaluated by an occupational health professional, but that Spence and Sons had not followed the matter and had not scheduled a meeting with him before his termination. This then rendered the dismissal unfair.
Additionally, the tribunal determined that the dismissal was “unambiguous” as “any employee sent a P45 with their name on it would take that as notice of dismissal particularly, as here, the document was clearly addressed to [Daniel] with the date of dismissal endorsed on it”.
The judge did not accept Spence and Sons’ defence that the sending of the P45 was an “innocent mistake”. This, along with the lack of communication with Daniel and the payment of accrued holiday pay upon request, would all “reasonably” lead Daniel to believe he was fired, the tribunal added.
Employment lawyer reaction
Dawn Dickson, employment partner at Anderson Strathern, said this case was a “salutary lesson” for HR practitioners and employers that mistakes will not be a defence and unfair dismissal liability will follow should critical documents such as P45s be sent to employees without any prior process.
Dickson also said that the case was a reminder that employers are required to provide workers and employers with a document outlining their primary terms of employment when they begin working, known as ‘the principal statement’, with the option to submit a more comprehensive written statement within two months of employment.
“Where employers fail in the obligation above the tribunal must make an award of the minimum amount two weeks’ pay unless there are exceptional circumstances which would make such an award unjust or inequitable,” she said.
Spence and Sons could not be reached for comment.