A senior nurse practitioner who returned to work after suffering a brain haemorrhage was successful in his tribunal claim after a judge ruled the Mersey Care NHS Foundation Trust did not take the necessary steps to provide him with recommended support equipment on his return to work.
The Liverpool tribunal heard that Mr A McGuinness had been told he was entitled to auxiliary aids to help him perform his role, but he did not receive this equipment until months after returning to work.
Consequently, the judge said that McGuinness felt “pressurised” into performing certain duties and “became overwhelmed”. The tribunal ruled that the Trust did not take the necessary steps to support him, and left him disadvantaged in his duties as a result.
McGuinness was a senior nurse practitioner at the Mersey Care NHS Foundation Trust working in the Central Community Team.
In December 2016, he suffered a brain haemorrhage and was told in 2019 that he was suffering from memory loss and impaired cognitive functioning. He had initially returned to work following this, but by October 2019 he was absent from work again, and did not return until February 2020.
Before returning to work, he completed an Access to Work form – a government scheme intended to support those with disability back into work.
Access to Work recommended the Trust make reasonable adjustments by providing and funding him a dictaphone, digital note equipment and software with appropriate training and noise-cancelling headphones. These were recommended to negate the disadvantage of his memory loss when in meetings, and to act as a memory aid.
On his return to work in February, he was placed in the Intermediate Care Hub with a reduced caseload. The hub had been created in response to the pandemic, and the tribunal heard he was able to deal with a caseload in a more stable environment as opposed to in the community.
The Trust had a policy called HR27, which was there to support staff with mental and physical disabilities. Ms Billington, a coordinator at the Trust and McGuinness's manager, did not complete and sign off the HR27 document until 5 May.
Following the Access to Work report, an administrator requested the supply of the recommended equipment, which was not, however, approved by Billington until 24 April when she asked the procurement department to process the order.
After not receiving the equipment, McGuinness was tasked with chasing it himself on 10 July, and on 11 August he finally received the headphones and dictaphone. However, he did not receive the digital note equipment or software, and did not receive any dates for his promised coping strategy training or technical training for the equipment.
On 19 August, Billington emailed McGuinness to ask how he was getting on. He responded by telling her that he felt he was not being supported in the hub. He complained that he was left alone with patients and felt unsafe at work.
McGuinness and Billington had a meeting on 18 September where it was discussed that the goal was to move him back to the community, but this would not take place until there was a new team leader on the central team, after the previous one left.
On 5 November, McGuinness was told by Billington’s manager, Ms Baxter, that he would be returning to community nursing, as it was deemed he was needed to support this team under the managerial element to his role.
On 4 December 2020 the claimant had a one-to-one supervision meeting with the new team leader, Ms Baskeyfield, in which she recorded that he was not to perform any more senior duties – known as ‘caseload holder’ duties – which included running the shift, holding the phone and allocating patients. Baskeyfield subsequently sent an email to relevant team leaders and coordinators informing them of the decision made.
By 29 January 2021, McGuinness finally received the digital note equipment after having to chase for it again. He had started the coping strategy training, but the technical training was still outstanding.
On 11 April, McGuinness was asked to perform the role of caseload holder in the absence of a colleague who had taken emergency childcare leave. He was asked to see how he got on and he agreed. However, the tribunal heard he was “unable to cope”.
After notifying his difficulties to coordinator Mr McNulty – who had been a recipient of the email sent on 4 December stating McGuiness would not perform caseholder duties – he reported sick and did not return to work before his ill-health retirement in February 2023.
The claimant submitted a grievance on 30 June 2021 complaining of being asked to carry out and the lack of provision of auxiliary aids.
The tribunal noted that it took months for McGuinness to receive the equipment that Access to Work requested his employer provide, and that he never received the technical training to use the equipment and software.
Consequently, the tribunal determined that the respondent did not take the necessary steps to provide the auxiliary aids.
It was noted that Baskeyfield and Billington thought the equipment and training were necessary, but they did not take action to chase it. Therefore, when McGuiness was asked to do the caseload handling role he struggled to do so, leading to his ill health and his inability to return to work.
Additionally, it was deemed the respondent did not take the necessary steps to avoid McGuinness being disadvantaged when performing the caseload holder duties.
“The tribunal has already determined that the respondent failed in its duty to [provide the necessary equipment] and, therefore, it did not take steps it was reasonable to take to avoid this disadvantage,” the judge said.
“Unfortunately, what happened was that the claimant felt pressurised into doing the caseload holder duties, and became overwhelmed.”
Rachel Phillips, employment solicitor at JMW Solicitors, said: “The employee in this case had an obvious need for reasonable adjustments [because of] their impaired cognitive ability, which their employer had been made aware of with clear recommendations for auxiliary aids to assist with performing their role.
“The employer was well equipped to deal with these requests for reasonable adjustments, and had clear policies in place for supporting staff with mental and physical disabilities. [As a result of] the employer’s knowledge and resources, and the entirely reasonable nature of the adjustments requested, these should have been implemented without delay upon the employee’s return to work.”
She said the case demonstrates that a failure to make reasonable adjustments for an employee suffering with a disability can constitute discrimination. “Where a tribunal makes a finding of a failure to make reasonable adjustments, an employer can be liable for an unlimited sum of damages as there is no cap on how much a tribunal can award in cases of discrimination. It is therefore imperative that employers understand when their duty to make reasonable adjustments arises, and that they deal with these scenarios proactively to ensure the necessary support is available,” Phillips said.