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Admin worker prevented from returning to work after sick leave was unfairly dismissed, says judge

8 Feb 2018 By Marianne Calnan

Breakdown in communication left NHS trust 'in breach of implied trust and confidence'

An administrator prevented from returning to work after six months’ sick leave when she was judged fit by occupational health was unfairly dismissed, a tribunal has ruled. 

Watford Employment Tribunal heard on 22 and 23 May 2017 that Alison Stack was an administrator for the Barnet, Enfield and Haringey Mental Health NHS Trust from 6 June 2005 until her resignation on 29 July 2016.

In a judgment published on 5 February 2018, the judge allowed Stack’s claim for unfair dismissal, finding that the trust breached its implied duty of trust and confidence after it prevented her from returning to work when she potentially could have done so.

Stack claimed that issues arose after she and then-administrative manager Joanne Barnes informally agreed that Stack was expected to work a midday until 8pm shift one week in every three. When Anna Mbachu became Stack’s manager in 2015, she was not told of this agreement by HR until early 2016.

After an operation for carpal tunnel syndrome, Stack took sick leave for six months from July 2015 to December 2015. Her recovery was then delayed by a series of falls.

Admin manager Ms Quidley wrote to Stack to inform her that she was being referred to the occupational health department on 23 September 2015, noting that she had been unable to contact Stack on her mobile phone for several weeks. 

Stack missed the date of her first assessment by occupational health, but had a subsequent assessment on 13 December 2015 with Dr Miah, who reported noting the history of Stack’s carpal tunnel syndrome, including that she had some swelling that was expected to settle.

Miah confirmed that Stack could to return to work on a phased basis before resuming regular working hours from her second week, and suggested the trust carry out a risk assessment to ensure Stack would be able to manage tasks. 

Stack’s GP, Dr Beale, agreed that she was well enough to return on a phased basis, and signed a statement of fitness on 16 December 2015.

As she was expecting to return on 21 December, Stack attempted to contact Mbachu from 16-18 December, but said she received no response. Stack claimed that that although Mbachu was busy arranging staff inductions at this time, Mbachu was aware of Stack’s attempts to contact her.

Mbachu delegated speaking to Stack to senior administrator Robert Noyland. When Stack asked Noyland for a headset to help answer calls, he suggested she pick up the telephone with her left hand, despite her being right-handed.

Noyland emailed Mbachu stating that Stack had confirmed she would be returning from the week commencing 21 December, and said he was left with the impression that Stack was unable to use her left hand.

Stack phoned Mbachu on 18 December; however, according to Stack, Mbachu did not want to take the call. 

Stack returned to work on 21 December, but the trust contended that she had refused to discuss her return to work in Mbachu’s office, and Mbachu was obliged to inform Stack while at her desk that she needed to leave the office, allegedly asking her to leave “right now”. 

The trust said Stack had refused a reasonable management instruction not to attend work on 21 December and refused a reasonable request to go into Mbachu’s office to discuss why she should not be at work.

Stack asked her to put the instruction in writing and explain her reasons. Mbachu then said she had already done so, and Stack requested that she print the email in question. Mbachu later had to escort Stack from the premises.

Stack received a letter informing her that she was on special leave from 21 to 24 December, and was then absent until 12 January 2016, when she returned for a risk assessment, which found it was safe for her to return.

However, Stack visited her GP on 1 February 2016, who confirmed she was unfit to work for two months because of work-related stress. 

She lodged a grievance on 25 February 2016, and by 25 March said she received no response nor acknowledgement. She chased the trust and Trevor Payne, senior HR adviser, said it had been sent to senior management. 

There were then delays while the trust arranged internal enquiries into the grievance, which the trust said were out of its control and of which it had informed the claimant. 

Stack’s GP signed a statement of fitness on 24 June 2016, and she returned to work on 27 June. She asked the trust’s grievance investigations officer, Kerby Francis, for an update two days later, but he informed her that none had been made. Stack described this as the ‘final straw’ and resigned via a letter. Although the grievance investigation was completed on 22 December, this came after Stack’s resignation.

Allowing Stack’s claim for constructive unfair dismissal, Judge Heal said the trust was in repudiatory breach of the implied term of trust and confidence when it prevented Stack from returning to work. 

Although she admitted there was a lack of clarity, “the situation called for communication between [Stack] and a manager prepared to make appropriate enquiries about [Stack’s] point of view, and what practical steps the trust could take to enable her to come back”, she said.

Heal also found that the trust did not deal with Stack’s grievance in a timely manner, and was not active in making sure she knew what was going on. 

Rachel Reeves, counsel in Allen and Overy’s employment group, told People Management that this case was a “stark reminder for employers about the importance of clear communications and timely and precise procedures to handle sickness absences utilised consistently”.

Anna McCaffrey, senior counsel in Taylor Wessing’s employment, pensions and mobility group, said the “breakdown in communication” was the main issue. 

“Conversations around preparations for employees returning from sickness absences need thorough planning so employers and employees have the same expectations,” she said. “If the trust had any concerns about whether Stack was well enough to return, it should have spoken to her about any adjustments she may have needed, rather than make assumptions.”

Barnet, Enfield and Haringey Mental Health NHS Trust had not responded to People Management’s request for comment at the time of going to press.

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