Ms K Green v Harrogate and District NHS Foundation Trust — 2022

Ms Green worked as an administration assistant in the Trust's 0-19 service. The respondent accepted that she was disabled by sleep apnoea, anxiety and depression, and COPD, and accepted knowledge of sleep apnoea and anxiety and depression. The tribunal found that from September 2020 she was experiencing extreme tiredness, lack of energy and problems with memory, understanding and judgement, and that those symptoms were at least partly due to sleep apnoea. The Trust used sickness absence, capability and disciplinary policies, with occupational health referrals, risk assessments, an action plan and a phased return to work.

On the section 15 complaints, the tribunal found that Mrs Havelock did not reprimand or tell Ms Green off for falling asleep, and that the supervision meetings and performance discussions were conducted supportively. It held that the management steps were not unfavourable treatment. In any event, the sickness and capability measures were found to pursue legitimate aims, including managing attendance, performance and service-user safety, and to be proportionate. The same reasoning applied to the sickness absence review meetings held after the September 2020 absence and again after the July 2021 absence.

On reasonable adjustments, the tribunal applied the Griffiths approach and held that the broad sickness absence, capability and disciplinary policies themselves did not put Ms Green at a substantial disadvantage. It accepted that a requirement to maintain satisfactory attendance and performance could disadvantage a disabled employee whose disability caused more absence or underperformance, but it held that it was not reasonable to require the Trust to ignore disability-related absences or performance issues. The policies already contained safeguards, including occupational health input, reasonable-adjustment considerations and staged reviews, and the Trust was entitled to monitor whether adjustments were working.

On dismissal, the tribunal found that the respondent had reasonable and proper cause for the actions relied on as breaches of trust and confidence, including monitoring performance, placing Ms Green on an action plan, referring her to occupational health, and contacting the DVLA and police after she continued driving against occupational health advice. It accepted that the failure to provide Access to Work equipment was an oversight and that a 14 May 2021 email suggested falling asleep would be treated as conduct, but held that these matters did not, alone or together, destroy the employment relationship. Ms Green resigned on 18 August 2021, but the tribunal held that she had not been constructively dismissed, so the unfair dismissal, wrongful dismissal and discriminatory dismissal claims also failed. No monetary award was made.