The Aberdeen tribunal found that a disabled care worker who had taken time off for carpel tunnel surgery on both wrists was constructively dismissed and discriminated against after she requested a phased return to work.
The care worker had been employed as a night duty care assistant since November 2018 and in January 2021 she had surgery on her wrists followed by further surgery in April of that year. She was absent from work in total for 14 months.
In February 2022 the care worker met with her line manager to discuss her return to work of which she requested a phased return. As recommended by her doctor, she asked for light duties starting with 2 x 3 hour shifts.
The manager’s manager was also present for the meeting, however on the care worker’s request, the senior manager replied with words to the effect of: ‘Don’t think you can just swan in here when you feel like it and say you’re coming back to work. It doesn’t work like that; we don’t have light duties. If you can’t do a full shift, there’s no job here for you. If you think you’re going to work with the girls going home knackered and you leaving fresh as a daisy, that’s not going to happen.’
The care worker stated that the senior manager was aggressive and dismissive towards her, that she was unable to ‘answer or interject’, that she left upset by the comments and ‘in a state of shock’.
The care worker had hoped to return to work on a specific shift in February 2022 as she was familiar with the staff who were working that night, however when she contacted the nurse on duty that night, she was told by her that the care worker no longer had a job.
In February 2022 the care worker asked for a meeting with her manager for 3rd March 2022, however the day before the meeting, the care worker started to experience symptoms of stress, where she couldn’t sleep and was vomiting. She also stated that she was scared that the senior manager would be there and treat her in the same way again.
She subsequently cancelled the meeting and went to see her doctor where she explained how she had been treated and that she was intending to resign. Her doctor issued her with a fit note to cover her notice period and later that day, the care worker resigned and provided her employer with her fit note.
The employment judge said that the way the care worker had been treated at the meeting with her manager and senior manager was ‘a clear breach of her employer’s duties towards her’. They also stated ‘it was not surprising that the claimant became nervous at the thought of returning to her workplace and eventually decided that she could not do so. It was clear that she was constructively dismissed. Further and in any event, we also find that this conduct was discriminatory, and this also entitled the claimant to resign’.
As a result the care worker was awarded the following:
Basic fee of £957.78
Financial loss of £17,316.44
Injury to feelings £10,000
An interest rate of 8% was then applied to the sums for a period of 431 days from the date of termination to the date of the hearing, totalling £944.66
Her former employer was ordered to pay the care worker £29,218.88.
Caroline Wood, Managing Director of alphr says in a case such as this, and where the care workers’ carpel tunnel syndrome amounted to a disability, on return from a period of sick leave it was surprising that the employee wasn’t offered a phased return to work, especially given that other employees had been offered the same in the past.
It is especially shocking the senior manager’s attitude towards the employee and the lack of awareness around the impact of her actions. As a result her employer is now required to pay almost £30,000 to their former employee.
Employers are required to make reasonable adjustments where they can to accommodate an employees’ disability – and placing the employee on a phased return I would consider to be a reasonable request, especially where a precedent has already been set with employees in the past.
It is vital in situations like this that the employer looks at all the facts of the case before outright refusing to make any reasonable adjustments – the consequences of poor knowledge and management of a situation have been demonstrated in this case, not only in monetary terms but employer reputation not only with the existing staff but now in the public domain.
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