A disabled care worker was constructively dismissed and discriminated against by her employer after she sought a phased return to work, a tribunal has ruled.
The Aberdeen tribunal heard that Lesley Bristow had been required to take time off work after having carpal tunnel surgery on both her wrists.
Following an extended period of time off work following the surgery, Bristow requested a phased return to work on the orders of her doctor, to which a senior member of staff responded: “Don’t think you can just swan in here when you feel like it and say you’re coming back to work. It doesn’t work like that, we don’t have light duties.”
The judge determined that Bristow was disabled in respect of carpal tunnel syndrome, and so her complaints of unlawful disability discrimination and a failure to make reasonable adjustments were well founded. Her employer was consequently ordered to pay her £29,218.88.
Bristow began working as a night duty care assistant for Craigard Care on 22 November 2018, until her resignation on 31 March 2022. The tribunal noted that she came across as “entirely credible and reliable” during the case.
In 2013, Bristow was diagnosed with carpal tunnel syndrome in both her wrists, which causes weakness and numbing sensations in the hands.
After more than two years into her employment, Bristow underwent surgery to treat her wrists in January 2021, followed by further surgery in April. As a result of complications from the procedures, she suffered pins and needles in her hands, and was consequently absent from work for a total of 14 months.
In February 2022, Bristow met with her line manager, Fiona Mackenzie, to discuss a return to work, where she expressed her desire to have a phased return to manage her symptoms. Her doctor had recommended that she begin with “light duties” starting with two-three hour shifts.
Janene Whyte, Mackenzie’s manager, was present for the meeting, to which, according to the tribunal, she replied to Bristow’s request with “words to the effect of”: “Don’t think you can just swan in here when you feel like it and say you’re coming back to work. It doesn’t work like that, we don’t have light duties. If you can’t do a full shift, there’s no job here for you. If you think you’re going to work with the girls going home knackered and you leaving fresh as a daisy, that’s not going to happen.”
The tribunal heard that Whyte was “aggressive and dismissive” towards the claimant and “Mackenzie was unable to answer or interject”, according to the tribunal.
Bristow said she was left upset by the comments, and “in a state of shock”. She said that at least two other employees had come back to work following absences on “light duties”. She had hoped to return to work as part of the night shift on 10 February as she was familiar with the nurse and staff who were working that night. However, when she contacted the nurse, the nurse said she had been told that Bristow no longer had a job.
On 25 February, Mackenzie called Bristow to arrange a meeting for 3 March, in which Bristow said she was aware of other workers who were offered a phased return and shorter shifts. However, she claimed Mackenzie was not prepared to discuss this.
On 2 March, the day before the meeting was due to take place, Bristow began experiencing symptoms of stress, and noted that she was “scared” Whyte would be at the meeting again and would treat her in the same way she had previously. She claimed she was unable to sleep that evening, and was vomiting from stress. She phoned Craigard Care and told them she would be unable to attend the meeting the next day.
She went to see her doctor on 4 March, where she told them about how she had been treated, and told them of her intention to resign. Her doctor gave her a sick note to cover her notice period, and later that day Bristow handed in her resignation letter and sick note to her employer.
Employment judge Hosie said the way Bristow was treated at the meeting in February 2022 was “a clear breach” of her employer’s duties towards her. They noted: “It was not surprising that the claimant became nervous at the thought of returning to her workplace and eventually decided that she could not do so. It was clear that she was constructively dismissed.
“Further, and in any event, we also found that this conduct was discriminatory and this also entitled the claimant to resign.”
Bristow was awarded a basic fee of £957.78, followed by an award for financial loss of £17,316.44. She was then awarded £10,000 in respect to injury to feelings. An interest rate of 8 per cent was then applied to the sums for a period of 431 days from the effective date of termination to the date of hearing, amounting to £944.66.
Consequently, her former employer was ordered to pay her a total of £29,218.88 following the incident.
Daniel Smith, legal manager at Primed, told People Management “the particularly interesting thing about this case” is that it “demonstrates the interplay between a dismissal and discriminatory conduct, and this is often overlooked”.
“The risks of discrimination claims to employers cannot be understated,” he continued. “Employees are more aware of their employment rights than they have ever been and, with the removal of employment tribunal fees in the last few years, the cost of submitting a claim to the tribunal is negligible and potentially zero – especially when you consider that many people do not engage legal assistance and choose to represent themselves.”
Employers should also consider that they are, generally speaking, “liable for the actions of their employees: as Craigard Care learned when the clearly inappropriate actions and inactions of one of their managers landed them with a £30,000 bill”, Smith said.
Yvonne Gallagher, partner at Harbottle & Lewis, added that “it is perhaps surprising”, as “a phased return to work would appear to be a very obvious reasonable adjustment” for carpal tunnel syndrome, which is a long-term disability.
“In addition to liability for failing to make reasonable adjustment, the comments allegedly made clearly leave the employer open to liability for harassment related to the disability,” Gallagher told People Management. “Such behaviour is likely to give rise to an award of compensation for injury to feelings, in addition to compensation for any losses arising from the employer’s conduct.”