Employment Law Case Update: Flemming v East of England Ambulance Services NHS Trust

Mr Flemming was employed by East of England Ambulance Services NHS Trust from April 2009 to November 2015. He suffered from a mixed anxiety and depression disorder which classed him as disabled under the Equality Act 2010, however Mr Flemming was confident that his illness didn’t impede his ability to carry out his duties.

In April 2012, Mr Flemming had an argument with his line manager, Mr Meiszner and shortly after experienced chest pains and shortness of breath and was taken to hospital after suffering a heart attack.

In July 2012, a report prepared by an occupational health specialist stated that Mr Flemming was considered well enough for a phased return to work. In August 2012, internal work mediation was arranged between Mr Meiszner and Mr Flemming. At times the environment was hostile; Mr Flemming began to feel extremely distressed and symptoms of his heart attack returned. In September 2012, a further occupational health assessment stated that further psychological symptoms had appeared since his last assessment and recommended that issues needed to be resolved via workplace mediation as soon as possible.

A further incident with Mr Meiszner in December 2012 resulted in Mr Flemming not returning to work. An occupational health report stated that Mr Flemming had a panic disorder, worsened by waiting for the issues at work to be resolved. In February 2013, Mr Flemming was advised by his GP that he was unfit for work due to depression.

In May 2013, Mr Flemming was invited to a sickness review meeting and a letter was issued to him stating what his options were – to resign on the grounds that to return to his post was no longer tenable, to return to his role but with reasonable adjustments made where appropriate, to return to work in an alternative role, to take ill health retirement, or for his contract to be terminated on the grounds of capability.

Mr Flemming’s union representative then asked for the Trust to supply a copy of occupational health reports, which they failed to do. A further occupational health assessment was carried out, concluding that Mr Flemming had Post Traumatic Embitterment Disorder as a result of what had occurred with Mr Meiszner. Mr Flemming was never deemed well enough to return to work and was dismissed on 23 November 2015.

The Employment Tribunal  (ET) ruled that Mr Flemming was unfairly dismissed under the Employment Rights Act 1996 as a result of his disability. It also stated that Mr Flemming was discriminated against as a result of his disability under the Equality Act 2010.

The ET found the possibility of external mediation had not been explored, and may have been a key component to Mr Flemming’s return to work. Also that the Trust’s policies were looked at in isolation, and the Trust failed to take a holistic view towards Mr Flemming’s workplace difficulties. The ET found that although the Trust had been provided with nine occupational health reports, their recommendations were not sufficiently dealt with because the Trust insisted on further meetings between Mr Flemming and occupational health specialists, when previous reports suggested mediation.

The ET noted that an inadequate response was given to an email sent by Mr Flemming in January 2015 to the Trust stating that he had suicidal thoughts. Whilst the Trust had told Mr Flemming that one of his options was ill-health retirement, it had failed to investigate and assist Mr Flemming with an application for this.

This case illustrates the importance employers must take in exercising caution when dealing with employees absent as a result of a disability, and to carefully investigate and consider all available options before dismissing.

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ENDS

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