The recent case of Muller v London Ambulance Service NHS Trust has emphasised the need for NHS trusts, as large, sophisticated employers with significant administrative resources, to take a more cautious approach and exhaust every other option before dismissing an employee by reason of capability. Mr Muller’s dismissal was found to be unfair and discriminatory, despite the fact that he had been absent from work for a year and had no predicted return-to-work date at the time he was dismissed.

Facts

Mr Muller was employed by the London Ambulance Service NHS Trust as a paramedic. In March 2016 he sustained injuries to his knee and shoulder by falling out of the back of an ambulance. His knee injury recovered but his shoulder injury did not heal.

Mr Muller was unable to work on the front-line as a paramedic with an injured shoulder and remained off work until he was dismissed by reason of capability in February 2017. The shoulder injury caused Mr Muller to experience disturbed sleep as well as pain and difficulty with lifting and managing stairs. The dismissing manager was unaware that this amounted to a disability under section 6 of the Equality Act 2010 but it was accepted by the trust during the course of the claim that they should have known, and therefore had constructive knowledge of disability.

Two sickness absence review meetings took place before Mr Muller was referred for a formal Capability Hearing. At the first meeting in May 2016 it was noted that Mr Muller had undergone extensive physiotherapy but with little benefit. This was also documented in a report from Occupational Health three months later, which stated that an ultrasound had not revealed what the problem was so Mr Muller was due to undergo an MRI scan. The report also stated that he should be able to provide reliable attendance following diagnosis and treatment, although it was not possible to predict a date for this at that time.

At the second sickness absence review meeting in September 2016, Mr Muller explained that he still had no diagnosis and was awaiting a report from a specialist. He was then informed that he would be referred for a formal Capability Hearing, which could result in his dismissal, on the basis that he had no accurate diagnosis and therefore could not give an indication of when or if he would be fit to return to his role.

There was some discussion at this stage about the possibility of temporary redeployment, but Mr Muller was told that this was only possible if he had a definite return to work date within the following four weeks. This was not in line with the Trust’s Managing Attendance Policy, which required specialist advice to be sought, temporary redeployment to be trialled for up to three months, and then options for permanent redeployment to be exhausted before dismissal on the grounds of capability was considered.

Occupational Health were extremely supportive of Mr Muller undertaking temporary redeployment, and also stated in October 2016 that they were “certain” he would be fit to resume his front-line duties, but the timeframe for this would be dependent on his assessment by a new specialist, obtaining a diagnosis and undergoing treatment.

The Trust had a practice of routinely redeploying pregnant paramedics into Clinical Hub placements, which involved providing telephone support rather than undertaking front-line duties. Mr Muller requested temporary redeployment into a Clinical Hub role in line with this practice, but his request was declined on the basis that the vacancy in the Clinical Hub required two days’ per month front-line duties (a requirement that was routinely dispensed with for pregnant employees).

Mr Muller saw a shoulder specialist in November 2016 and was diagnosed with a tear in the cartilage around his shoulder joint. That led to a steroid injection, which did not resolve the issue, following which he underwent surgery in July 2017. He was fit to undertake full duties as a paramedic again from November 2017.

However, a formal Capability Hearing took place in February 2017, at which time there was no foreseeable return-to-work date because whilst Mr Muller had received a diagnosis, treatment options were still being considered. It was noted that surgery had been arranged for July 2017, but there was no assurance that it would resolve the problem.

As such, Mr Muller was dismissed on the basis that he had been absent from work for 11 months, there was no return to work date and alternative duties had been considered but not deemed suitable.

Employment Tribunal Findings

The Employment Tribunal found that the Trust had not followed its absence management policy and it had failed to make reasonable adjustments by waiving the 4-week unwritten rule for temporary redeployments and dispensing with the need for Mr Muller to undertake two days’ front-line duties per month in the Clinical Hub role (in line with the treatment of pregnant paramedics).

Mr Muller’s dismissal amounted to unfavourable treatment because of his absence, which was something “arising from” his disability under section 15 of the Equality Act 2010, and the Trust could not justify his dismissal as a proportionate means of achieving a legitimate aim because there were less discriminatory measures it could have taken (i.e. by implementing reasonable adjustments).

The Employment Tribunal found that no reasonable employer of the same size and with the same administrative resources and policies would have dismissed Mr Muller in the circumstances. It found that he should have been redeployed into another role and the Trust should have waited longer in the circumstances. Had they done this, he would have been able to keep his job as a paramedic.

Comment

The Employment Tribunal paid significant regard to the fact that the Trust had comprehensive policies and standard practices relating to absence management processes and the redeployment of pregnant staff, which had not been fully complied with in this case. It also commented that an organisation such as an NHS trust with significant resources could not easily demonstrate a seriously detrimental impact from Mr Muller’s ongoing absence. It was not impressed by references to Mr Muller’s 11 months’ absence being “sufficient” to dismiss him because this indicated a backward rather than forward looking approach, which was contrary to the exercise it should have been carrying out.

Although this was a case in the Employment Tribunal (and therefore the decision is not binding on future cases), it serves as a timely reminder to all employers, but particularly to NHS Trusts, that capability dismissals will always carry significant risk. This is so even where an employee has been absent for a year and there is no immediate prospect of a return to work. Unless internal policies have been followed to the letter and all other options (including options which would require reasonable adjustments to be made) have been thoroughly explored and exhausted, there will be an inherent risk of the dismissal being unfair and potentially discriminatory, given that many employees with significant periods of long-term absence will be deemed to have a disability.