Following a fair process – A case study
A recent Employment Tribunal case has highlighted the importance of being open and transparent with employees regarding advice from Occupational Health and following a fair process when terminating employment.
In March 2023, a Tribunal ruled that a factory packer who suffered multiple seizures at work was unfairly dismissed and was a victim of disability discrimination. The claimant was awarded a total sum of £15,269.63 for unfair dismissal and disability discrimination as a result.
The tribunal heard that the claimant, Mr Gill, was appointed by Aeroplas, (which predominantly creates plant pots and trays out of recycled plastic), as a pot department packer on 1 June 2010, and his duties involved lifting the moulded plastic pots off a belt and placing them on wooden pallets.
On 20 February 2014, Gill suffered a stroke while at work and was subsequently diagnosed with epilepsy. Between 2014 and 2020, Gill suffered multiple seizures and as such, his ability to predict when a seizure was likely to happen had “improved significantly”, in that he was able to identify when one was about to occur approximately “10-20 minutes” beforehand.
Following a seizure at work in October 2020, Gill did not return to work.
In November 2020, a risk assessment was carried out and, in January 2021, Gill was invited by his manager to attend an Occupational Health (OH) appointment.
The OH report concluded that Gill “should be considered as unfit for work” because of his risk of further seizures at work, and Gill gave permission for OH to contact his GP for a report.
On 12 May 2021, Gill’s GP reported that his epilepsy would need “long-term treatment and that there was a possibility of relapses and further seizures”, concluding that Gill should not be working in an environment with “dangerous machinery and moving vehicles”.
The OH report therefore concluded that he “needed to work in an environment that is safe should he have a seizure while at work”.
The tribunal has since found that the number of seizures stated by Gill’s GP and OH were incorrect, and they also misreported that he experienced diabetes.
Aeroplas also arranged for its independent health and safety adviser to revisit the risk assessment for Gill’s role, which said it was likely he would have further seizures, and that Aeroplas “couldn’t ensure his safety in the workplace”. However, it also found that if certain “steps were taken” as recommended in the report – such as employing more staff to take over some of his responsibilities – the likelihood score could be “substantially reduced”.
The OH report said there were no “suitable alternative” roles available for Gill, and that Aeroplas had no choice but to terminate his employment on 17 May 2021.
The tribunal found that Aeroplas’ dismissal of Gill – who does not speak English – was “procedurally unfair” as it did not provide him with a written invitation “spelling out” what the consequences could be for him, following receipt of the OH report which has concluded he was “unfit for work” as a result of his epilepsy.
It also found that while Aeroplas’ aim to protect the health and safety of the workforce was legitimate, it failed to show Gill’s dismissal was “necessary”, as OH and GP reports wrongly alleged his seizures were more frequent than they were.
There was a dispute between Aeroplas and Gill as to whether he was given any warning that the report could bring his employment to an end, and the tribunal found Gill was not given “formal” written warnings, and this amounted to his unfair dismissal.
The lack of written invitation “spelling out” what the consequences could be to Gill, meant that “potential errors” in both the OH and GP reports on the frequency of his seizures were unable to be corrected.
Employers should take heed of the key learning from this case which is summarised below: –
- Formal written invite letters to meetings are crucial so that employees are made aware of the purpose of meetings and any potential outcomes. If employees are aware of the scope of the meeting, and are provided with copies of documentation to be relied upon in the meeting, they can adequately prepare and ensure they seek advice in advance if necessary;
- Ensure employees have the opportunity to reflect and provide feedback on any advice provided by OH and other experts, both to clarify the ‘facts’ presented and to understand the potential implications of the advice;
- Ensure that any meetings relating to absence discussions take place on whether information provided is factual and up to date;
- If adjustments recommended by OH or Health and Safety experts cannot be implemented, employers should document their reasoning for this in order to demonstrate the advice has been reasonably considered and the justifications for making such decisions;
- In reaching a decision to dismiss, employers must follow a fair process in accordance with the applicable Acas code of practice. In this case, the award was uplifted by 25% due to the failure to follow a fair process;
- Notes of meetings must be made and shared with the employee.
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