A paramedic who fell out of the back of an ambulance and sustained a long-term injury was unfairly dismissed by his employer, Croydon Employment Tribunal has ruled.
Anthony Muller was employed by London Ambulance Service NHS Trust when he was injured falling out of an ambulance in 2016. He did not return to work after the accident because his injury was slow to heal, and was dismissed 11 months later, on 28 February 2017 following a capability hearing.
Muller’s injured shoulder was slow to improve after his accident in March 2016. In an occupational health review three months later, the trust concluded it would be difficult to predict a date for his permanent return to work, but that he should be able to regularly attend work following a proper diagnosis and treatment.
At a second health review in September 2016, Muller was told he would have to attend a capability hearing with a director, with a potential risk of dismissal. Sandra Roberts, who was the group station manager at the time, said the reasons for this step were a lack of clear diagnosis, and the fact that Muller’s shoulder had not improved despite prolonged treatment.
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According to the trust’s official ‘managing attendance’ policy, managers should meet with staff following an occupational health report to discuss their condition, potentially seek further specialist advice, and consider temporary or permanent redeployment for the staff member.
The policy adds the organisation should consider a possible dismissal only when “there is little likelihood of the member of staff being able to return to work in any capacity within the trust and other options have been exhausted.”
Roberts and Muller discussed a temporary change of duties; Muller enquired about alternative work opportunities, but was told these could only be available if he was going to be off work for less than four weeks, and had a clear return date. The tribunal found that in ruling out a temporary reassignment at the early stage of this meeting and referring Muller for dismissal, the trust failed to follow an important aspect of their policy.
“It does not seem [...] that the respondent can excuse its failure to consider a temporary reassignment on that basis, since Mr Muller was asking for that and their own occupational health report recommended it as an excellent idea,” Employment Judge Fowell said.
Muller and members of the trust entered into a dialogue regarding temporary or permanent redeployment; the latter of which was not deemed appropriate, as it was always Muller’s ultimate goal to return to the front line. Instead, Muller sought to take advantage of a trust policy that temporarily reassigns pregnant paramedics to the station’s Clinical Hub while they are unable to fulfil their front-line job.
A vacancy became available in December 2016 in the Clinical Hub which Muller applied for, but was not shortlisted for. The trust argued he did not meet one of the essential criteria to work in the role, as he could not carry out two days of work on the front line each week, making no adjustment for his prolonged injury, which at this point was considered a disability.
Muller attended a capability hearing in February 2017, where representatives of the trust repeated that the lack of a return date continued to prevent his reassignment. The tribunal further found that Graham Norton, assistant director of operations at the trust, did not approach this hearing as though Muller had a disability. Muller was sent a dismissal letter on 10 May 2017, which dismissed him on notice.
The tribunal found Muller had been unfairly dismissed due to a failure of his employer to make reasonable adjustments, stating it seemed “self-evident” that if the trust’s managers should have known about the disability, they should also have recognised this placed him at a substantial disadvantage, and adjusted their approach accordingly.
As the managing attendance policy applies to all employees regardless of disability, a reasonable employer would have reassigned him to another role, waited longer to act on a dismissal, and taken the policies into regard, they argued.
“In practical terms, had he been reassigned to the Clinical Hub and treatment options explored, he would have been able to keep his job as a paramedic,” Judge Fowell said.
“Given his 17 years’ service, and given that the overwhelming predominance of the NHS as an employer in the health sector in the UK, he would in our view almost inevitably have remained in their employment today.”
A remedy hearing has been listed for 16 May 2019.
London Ambulance Service NHS Trust has been approached for comment.