Employment Tribunal awards over £90,000 after finding that employee had been subjected to disability discrimination (Flemming v East of England Ambulance Services NHS Trust – ET/3400184/2016)

In the case of Mr Flemming v East of England Ambulance Services NHS Trust (3400184/2016) the Employment Tribunal awarded the Claimant over £90,000 after finding that he had been subjected to disability discrimination and unfairly dismissed.

The factual background in Flemming v East of England Ambulance Services NHS Trust

Mr Flemming (the ‘Claimant’) was employed by East of England Ambulance Services NHS Trust (the ‘Respondent’) from April 2009 to November 2015 as a vehicle technician. He suffered from a mixed anxiety and depression disorder which counted as a disability under the Equality Act 2010.  Mr Flemming, however, was confident that his illness didn’t impact on his ability to carry out his duties for the Respondent.

In April 2012, the Claimant had an argument with his line manager after which he experienced chest pains and shortness of breath.  He was taken to hospital where it was discovered that he had suffered a heart attack.

In July 2012, a report prepared by an occupational health specialist stated that the Claimant was well enough for a phased return to work. Subsequent to that report internal work mediation was arranged between the Claimant’s line manager and the Claimant. However, at the mediation meeting he began to feel extremely distressed and symptoms of his heart attack returned. In September 2012, a further occupational health assessment was carried out on the Claimant and a subsequent report stated that further psychological symptoms had appeared since his last assessment.  The report recommended further workplace mediation between the Claimant and his line manager as soon as possible.

A further incident occurred in December 2012 after which the Claimant did not return to work. A further occupational health report stated that the Claimant had a panic disorder which had worsened by waiting for the issues at work to be resolved. In February 2013, the Claimant was signed off from work by his GP due to depression.

In May 2013 the Claimant was invited to a sickness review meeting and a letter was issued to him stating what his options were.  He was advised that he could (i) resign on the grounds that to return to his post was no longer tenable (ii) return to his role but with reasonable adjustments made where appropriate (iii) return to work in an alternative role (iv) take ill health retirement, or (v) his contract could be terminated on the grounds of capability.

The Claimant’s union representative asked the Respondent to supply a copy of the occupational health reports, which they failed to do. A further occupational health assessment was carried out which concluded that the Claimant had Post Traumatic Embitterment Disorder as a result of what had occurred with his line manager.

When the Claimant contacted the organisation’s interim HR director, he suggested he was considering “ending it all” and that the Respondent was trying to “push him over the edge”, to which he received the response: “I appreciate you may have mental health problems, but this letter is not acceptable. In future do not write to anyone else in the Trust except me. If you continue to write such letters, we will refer them to our solicitors.”

The Claimant was never deemed well enough to return to work and was dismissed on 23 November 2015 for gross misconduct for refusing to follow reasonable management instructions having failed to attend a disciplinary hearing. His appeal against his dismissal was unsuccessful, and he went on to make claims in the Employment Tribunal (the ‘ET’) for unfair dismissal and disability discrimination.

The decision of the Employment Tribunal (ET)

The Employment Tribunal (“ET”) ruled that the Claimant was unfairly dismissed and discriminated against as a result of his disability. The ET criticised the Respondent for not pursuing the possibility of external mediation to resolve the dispute, and heavily criticised them for responding inappropriately to an e-mail the Claimant sent referring to suicidal thoughts as well as failing to investigate the option of ill-health retirement for the Claimant.  The also held that the Respondent had failed to follow its own procedures and had had switched from a capability procedure to a disciplinary one when it was clear the Claimant’s mental health was deteriorating.

The ET ordered the Respondent to pay the Claimant £92,214 in compensation for disability discrimination, which included an award £10,000 for injury to feelings, £20,000 for psychiatric injury and £62,214 for loss of earnings. It also made an award of £4,275 for unfair dismissal.

Our solicitors’ views on the case of Mr Flemming v East of England Ambulance Services NHS Trust

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “This case illustrates the importance of considering the mental state of an employee before treating a refusal to participate in internal processes as misconduct. Employers must exercise caution when dealing with employees absent as a result of a disability, and carefully investigate and consider all available options before dismissing.”

The decision of the Employment Tribunal in Mr Flemming v East of England Ambulance Services NHS Trust (3400184/2016) can be found here.