Mechanic who had heart attack after altercation at work was unfairly dismissed, tribunal rules

11 Feb 2019 By Maggie Baska

NHS ambulance trust took ‘mechanistic approach’ over employee’s return to work after sick leave 

A mechanic who suffered a heart attack after an altercation at work was unfairly dismissed following a dispute about his return to work, a tribunal has ruled. 

Gordon Flemming worked as a motor vehicle technician for the East of England Ambulance Services NHS Trust from April 2009 until his dismissal on 23 November 2015.

He was dismissed for gross misconduct after failing to attend meetings with an operational health (OH) specialist following his sick leave after the heart attack. However, the employment tribunal ruled Flemming was unfairly dismissed because his employer failed to “take a holistic view of the workplace difficulties experienced by the claimant”.

On 30 April 2012, Flemming had difficulty locating his line manager, A Meiszner, to obtain instructions regarding allocation of work. The ET heard Flemming was a disabled person due to an anxiety-depression disorder, although this “did not impede him carrying out his duties”

The tribunal heard there was “some kind of altercation”, but there were no specific details given as to what was said or by whom. 

Flemming became very upset and experienced “chest pains and shortness of breath” following the altercation. He called for help, and paramedics attended and took him to hospital. He was diagnosed as having suffered a heart attack and was kept in hospital for three days. He was discharged on 2 May, prescribed medication and signed off work.

In a letter dated 4 July, an occupational health specialist wrote to Flemming and considered him well enough to return to work on a phased basis. The specialist recommended “the gradual increase in days’ work a week… increasing as he feels able”.

A mediation session was arranged between Flemming and Meiszner on 6 August. But Flemming claimed the working environment was “very hostile” and he became “extremely distressed”, with the symptoms of his heart attack returning. He said he was given an ultimatum that he would “have to shake his [unnamed] accuser’s hand before he was permitted to return to work”. 

Flemming was admitted to hospital again, his perception being his mental illness “started to manifest itself as he could not come to terms” with his treatment.

In September, an OH report concluded Flemming had experienced “psychological symptoms”, but did not consider a phased return to work would be detrimental to his health. However, a November 2013 report found Flemming was bitter towards the trust and concluded “a successful return may not be feasible, although he does not want his employment terminated”.

In March 2015, following the appointment of a new director of HR, Flemming was contacted on a number of occasions to arrange meetings with OH and to ask for fit notes to be submitted, however he declined to do either. In June 2015, John Hole, head of fleet, wrote to Flemming to formally request he attend an appointment with OH. He advised failure to do so “could result in him taking formal action and/or stopping his pay”. 

Richard Ashford, deputy director of operations, wrote to Flemming informing him he was to attend a formal disciplinary hearing on 13 August. He said Flemming’s actions by “refusing to follow a reasonable management instruction” to attend meetings with OH and the Trust “rendered it impracticable to continue his employment”. 

The decision was made to adjourn to seek further advice from OH, but Flemming did not attend an OH meeting. The disciplinary hearing was reconvened on 16 November, but Flemming was not able to attend. 

Ashford concluded Flemming was guilty of gross misconduct for failing to attend the OH meetings and dismissed him. Flemming appealed against the decision but was unsuccessful. 

The tribunal ruled Flemming was unfairly dismissed, and his claim of discrimination arising from disability succeeded. Judge Cassel recognised Flemming was “difficult to manage” at times and “on occasion simply would not cooperate [with] genuine efforts to resolve his employment difficulties”. But he found there was a “mechanistic approach” to the issues Flemming raised, and the trust failed to take a holistic view of the workplace difficulties he experienced. 

Andrew Willis, head of legal at HR-inform, said it was important for employers to remember standard policies on disability and ill health may not be appropriate for every occasion and a bigger picture view should be taken. “A physical disability such as cancer will place individuals under different strains compared to a mental health disability,” Willis said. 

He advised managers to read internal policies alongside medical advice and OH reports and consider whether adaptations needed to be made. Willis also said employers should ensure they consider other measures to avoid placing the employee at a disadvantage or potentially worsening their condition.

A spokesperson for the trust said it has noted the tribunal’s judgment and was giving it close consideration. Flemming could not be reached for comment. A remedy hearing took place last week (4 February), but details were not yet available.

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