Truth Legal represented a paramedic who had badly injured his right shoulder in an accident at work. His employers dismissed him nearly a year later on the grounds that he was unable to do his job.
He made a claim for unfair dismissal and disability discrimination, which ended up being heard in the Employment Tribunal. With Truth Legal’s help, and despite determined opposition to his claim, he succeeded at the hearing and was awarded over £71,000 in compensation.
A lengthy recovery
Our client, Gareth,* was injured during the course of his duties as a paramedic. He was stepping down from the back of his ambulance when he tripped on part of the rear step, which hadn’t retracted properly. He fell heavily to the ground, injuring his left knee and right shoulder.
He was signed off work. Little did he know at that the time he would never return to his old job – a job he had held for 17 years.
In the months that followed, Gareth’s knee injury resolved but his right shoulder continued to prevent him from working. He underwent physiotherapy but this did not improve his symptoms.
In September – six months after the accident – Gareth’s employers held an absence review meeting with him. His employers informed him that they would begin the formal procedure for assessing whether he was capable of carrying out his role as a paramedic and that this could result in his dismissal.
The month after, Gareth had an Occupational Health assessment with a doctor. The doctor was optimistic about Gareth’s prospects of returning to work. Although he could not give a date on when this would be, the doctor said it was ‘certain that he will be fit to resume his role as a front line paramedic’ and added that it was not a question of ‘if’ but more ‘when’.
Searching for an alternative role
The doctor’s report recommended that Gareth should try to undertake an alternative role during his recovery. It mentioned the Clinical Hub, which was a department that other paramedics had been sent to when they were unfit for frontline work. Pregnant paramedics were commonly posted to the Clinical Hub before they went on maternity leave.
Gareth wanted to return to work. His employers had discussed a temporary alternative position with him, but he was largely left to his own devices to find it.
In December, he applied for a position in the hospital archives but withdrew when he discovered it was a permanent position. A vacancy then appeared in the Clinical Hub, which he applied for immediately, but he was rejected on the basis that he could not fulfil the necessary 2 days of frontline work which the role required.
Gareth had finally been able to see a shoulder specialist in December, 9 months after the accident. A diagnosis was made on the specific nature of his shoulder injury and, as a result, he had a steroid injection in January. Unfortunately, this did not resolve his symptoms so a surgical appointment was then set for March.
However, in February, the capability assessment hearing with Gareth’s employers took place.
The managers involved made much of the fact that there was no date fixed for when Gareth could return to work. The capability report, upon which the hearing was based, had been written by a manager in November and had not been updated since; it did not take into account Gareth’s diagnosis in December, his surgical appointment set for March, or another very positive Occupational Health report which had been made earlier in February.
The delays in Gareth’s recovery had been due to NHS waiting times but, even so, following the hearing, his employers decided to dismiss him.
Gareth naturally felt angry and upset by what his employers had done. He had worked with them for 18 years, he had had no performance issues in the past, and his managers had accepted that the accident and his delayed recovery had been through no fault of his own.
Truth Legal is instructed
Gareth contacted Truth Legal for advice on what his employers had done.
Navya Shekhar, Head of Employment Law at Truth Legal, immediately identified that Gareth’s employers had failed to recognise his status as disabled whilst he was dealing with the symptoms of his shoulder injury, and they had failed to make reasonable adjustments to accommodate this.
Gareth instructed Truth Legal to help him and a claim was submitted to the Employment Tribunal for unfair dismissal and disability discrimination.
The claim was contested by Gareth’s employers, and they fought the case so strenuously that it had to go to a Tribunal hearing to be decided – something which is rarely seen in this kind of claim.
The Employment Tribunal’s decision
At the hearing, the Tribunal decided that:
- Gareth’s dismissal amounted to unfavourable treatment arising from his disability and his employers had been unable to justify this
- His employers had not made reasonable adjustments to accommodate his disability
- His dismissal had been unfair
- There had not, however, been any ‘direct discrimination’ on the grounds of his disability
How the Tribunal came to these conclusions is explored below.
Unfavourable treatment arising from his disability
The Tribunal held that Gareth’s dismissal was clearly unfavourable treatment, and that this arose as a consequence of his disability. His shoulder injury had stopped him from working in his role as a paramedic, and his employers had dismissed him as a result.
However, this kind of treatment will not be discriminatory if an employer can show that it was done as ‘a proportionate means of achieving a legitimate aim’.
In Gareth’s case, this meant the Tribunal had to consider whether the decision to dismiss him was justifiable in the circumstances, and also that it was not the equivalent of ‘using a sledgehammer to crack a nut’.
The Tribunal found that the decision to dismiss had been disproportionate, irrespective of any legitimate aim it had been intended to accomplish. It was held that Gareth’s employers had overlooked or disregarded key parts of their own management policy and implicit in that policy was the principle that dismissing an employee should be a last resort. Because the Tribunal also found that Gareth’s employers had not done enough to accommodate his disability, this principle had clearly not been applied.
Failing to make reasonable adjustments
Employers are under a duty to make ‘reasonable adjustments’ to accommodate disabled employees. You can find out more about this duty in our blog on reasonable adjustments.
In Gareth’s case, the Tribunal found his employers had not done enough in this respect, failing to place him on lighter duties or help him to find an alternative position whilst his injury healed.
The Tribunal rejected the employers’ argument that they were freed from their duty because there had been no fixed date for Gareth’s return to work, noting that the Occupational Health report considered his eventual return to be a certainty.
As mentioned above, the Tribunal criticised the employers for failing to follow its own management policy – and pressing on with a capability hearing instead of looking further into arranging an alternative post. The Clinical Hub, in particular, could have provided Gareth with a temporary role whilst he recovered. But the Tribunal found that Gareth had faced additional obstacles in his application to a Clinical Hub role – most significantly, the required capability for 2 days of frontline work, a requirement which had been waived for a pregnant paramedic who was used for comparison.
Tribunals must take a particular approach when judging claims of unfair dismissal. When assessing the employer’s decision to dismiss, it does not matter if the Tribunal would have come to a different decision. Instead, the question for the Tribunal is whether the employer’s decision could fall within the ‘range of reasonable responses’ that an employer might take in the circumstances.
In Gareth’s case, the Tribunal made several findings which led them to conclude his employer’s response had not been a reasonable one. Again, the fact that the employers had departed from their own management policies was significant for the Tribunal – particularly in not treating dismissal as a last resort.
The Tribunal also noted that:
- Gareth had 17 years of service with no performance concerns during that time
- The Occupational Health reports were positive, and consistent in their assessment that Gareth would be able to return to full duties at some point in the future
- Gareth’s employers had the resources to reallocate him to other duties
The lack of ‘direct discrimination’
The Tribunal held that Gareth had not been subjected to direct discrimination over his disability. This would require him to be treated less favourably than a comparative employee because of his disabled status – as opposed to unfavourable treatment arising from his disability.
Gareth’s capability issues and long-term absence (which were the basis for his dismissal) arose from his disability (his shoulder injury) – and the Tribunal found that he was treated unfavourably as a result. But he had not been treated less favourably because of his disability. In fact, the Tribunal found that the key decision-makers for Gareth’s employers were unaware that he should even be classed as disabled (though it was pointed out that they ought to have been). As such, it was impossible to say that they had directly discriminated against him on the grounds of his disabled status.
This might seem like a subtle difference but it is an important one legally. To find out more about this distinction, read our blog on why direct discrimination for disability is so rarely found.
Gareth was awarded just over £44,000 in compensation for his unfair dismissal claim and over £22,000 for the discrimination part of his claim. The Tribunal then applied an uplift to account for tax on these awards, bringing the total to over £71,000.
One of the key parts of Gareth’s claim was
There was also good news for Gareth’s recovery. His shoulder surgery in March went well and led to great improvement in his symptoms. Nearly a year after his dismissal, he was back carrying out frontline paramedic duties, having secured a new job elsewhere a few months earlier.
Truth Legal’s Navya Shekhar had this to say on the case:
“We were pleased to have taken this matter on and supported Gareth in his fight for justice. His success was well deserved and we are proud to have played a part in his success, particularly when his trade union failed to support him at such a crucial time.”
Have you been dismissed or suffered discrimination at work?
If you think you may have suffered discrimination at work, or you might have been dismissed unfairly, get in touch with us to discuss your situation.
*All names have been changed to maintain the confidentiality of our client