Employee wins stress case against NHS for discrimination and unfair dismissal

An Employment Appeal Tribunal has sided with a former NHS employee dismissed after becoming disabled with stress caused by his line manager.

Mr Foster worked for Leeds Teaching Hospital NHS Trust for many years, ending up as a senior security inspector in the Security Department.

In October 2006 he stopped working due to workplace stress and in February 2009 he was dismissed by the Trust on grounds of capability due to ill health under the Employment Rights Act.

Shortly after going on sick leave, Mr Foster raised a grievance alleging bullying and harassment by his line manager. He then went to see an Occupational Health doctor, who confirmed that his stress was the result of problems at work, and that his return to work would not be possible until those problems had been resolved. It was accepted by the Trust that during this whole period Mr Foster was disabled within the meaning of the Disability Discrimination Act (now the Equality Act).

After nearly a year of investigating – during which time Mr Foster was on sick leave - the Trust dismissed the grievance, refusing to consider the Occupational Health report as a part of the investigation. In fact, at no point were the reasons for Mr Foster’s absence from work considered by the Trust.

Mr Foster was then given a choice - either return to his old job, or another one in the Security Department, both of which put him under his old line manager. Redeployment elsewhere in the Trust was not an option.

Mr Foster refused. Even though the allegations against his line manager had been dismissed, that was not how he saw it. The doctor advised the Trust that he would not be able to return to work until he was redeployed outside the Security Department, but that he was ready and fit for such work elsewhere in the Trust’s 15,000 strong workforce. There was a standoff, as a result of which management recommended that Mr Foster be dismissed.

At first this recommendation was refused. The Trust put him on the redeployment register, but when a job came up he was by then too ill to take it. He had by this time been on sick leave for nearly two years.

Then, shortly after, Mr Foster’s line manager left the Trust, and a return to the Security Department became feasible. Mr Foster requested a meeting with the Trust’s management to discuss some issues relating to his health, but this was refused. He was told he would have to consent to a whole new grievance procedure if he wanted to discuss his return to work.

Mr Foster then went back to his doctor, who now advised that his prospect of returning to any work at the Trust was not foreseeable. Mr Foster had lost all faith in the Trust. As a result the Trust dismissed him.

The Tribunal found that the Trust had a duty to make reasonable adjustments to prevent Mr Foster from being at a substantial disadvantage under the Equality Act. It said:

‘people who were not disabled as a result of stress were not under the disadvantage of having to work in a department which caused them stress.’

It found that an adjustment was reasonable if it involved a prospect that Mr Foster could have been redeployed. The fact the Trust employed such a large workforce, and that later – when it was too late – a job had come up, showed there was a prospect of redeployment.

The Tribunal also found that Mr Foster had been unfairly dismissed because it had not considered any alternative arrangements for him. No reasonable employer would do that. When it did eventually consider redeployment and return to work, it was too little and too late.

The fatal flaw of the Trust was a lack of flexibility in addressing Mr Foster's concerns. When he appealed to the Trust against his dismissal, it was found there was evidence he had been harassed. However, even without this evidence, the Trust should have paid heed to the Occupational Health report and considered ways to help Mr Foster return to work. Had Mr Foster been the victim of a physical injury, perhaps the Trust might have behaved differently?

For further reading, try this resource for groundbreaking cases on mental health at work.