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Unfairly dismissed NHS worker awarded £92K

The case of a former ambulance technician who was ruled to have been unfairly dismissed and discriminated against as a result of his anxiety related disability has helped to raise awareness of mental health in the workplace and the seriousness with which it should be regarded in terms of disability.

In February this year the Employment Tribunal ruled in the case of Mr Gordon Flemming v East of England Ambulance Services NHS Trust 2019 that Mr Flemming had been unfairly dismissed, and discriminated against, as a result of his disability.

The worker lost his job after failing to attend occupational health meetings to discuss his physical and mental health and has now been awarded £92K in compensation.

Background

Mr Flemming was employed by the East of England Ambulance Services NHS Trust between 2009 and 2015. He was classed as disabled due to his mixed anxiety and depression disorder. In April 2012, Mr Flemming was admitted to hospital with a heart attack following an argument with his line manager. In July, an occupational health assessment considered him fit enough for a phased return to work. In September, a further assessment noted that further psychological symptoms had developed since his last evaluation and workplace mediation was recommended.

Another incident between Mr Flemming and his line manager occurred in December 2012, after which Mr Flemming did not return to work. Occupational health recorded a diagnosis of panic disorder made worse by waiting for issues to be resolved at work. In February 2013 Mr Flemming’s GP recorded that he was unfit for work because of depression and in May he was invited to a sickness review meeting where he was given the option to resign, return to work with reasonable adjustments or return in an alternative role.

Mr Flemming was then diagnosed with Post Traumatic Embitterment Disorder following the ongoing conflict with his line manager. Following the appointment of a new HR Diector at the Trust in March 2015, attempts were made to arrange occupational health appointments which Mr Flemming repeatedly failed to attend. The Trust invited Mr Flemming to a disciplinary hearing, which was adjourned to allow for another occupational health review. The hearing was then reconvened, but Mr Flemming couldn’t attend. A decision was made in his absence to dismiss him for gross misconduct, and his appeal was unsuccessful. Mr Flemming then claimed unfair dismissal and disability discrimination. In the event, he never returned to work and was dismissed in November 2015.

The tribunal found that the option of mediation was not explored and that the Trust had failed to follow the recommendations made in occupational health reports. Furthermore, it found that Mr Flemming had been put under pressure and threatened by his employer.

In his ruling, Judge Richard Cassel said: “In our combined 60 years’ judicial experience we have not before seen such an appalling response… An employee having indicated that he was seriously contemplating suicide was told not to write accordingly otherwise such letters would be referred to the Trust’s solicitors. The claimant in giving evidence said that he felt that he had been cut adrift and that he had no access to human resources.”

Comment

The fact that Mr Flemming was threatened with legal action by his employer when he was feeling suicidal, had an impact on the tribunal. The lack of consideration of the employee’s mental health, which was in this case considered to be a disability under the Equality Act, attracted a significant compensation award of £92K.

Employers must take care when dealing with employees who are absent from work because of their disability. The outcome of this case – and the level of compensation awarded – highlights the seriousness with which employers are expected to regard mental health at work and represents an important ruling on mental health and disability discrimination.