14th February 2019

Tribunal Tale – Flemming v East of England Ambulance Services NHS Trust


Most reasonable employers will (at least initially) take a sympathetic view in relation to genuine absence, attempt to support the employee and take steps to facilitate their return to work. Of course, in the case of prolonged absence where there is little or no likelihood of a return to work, dismissal may eventually have to be considered. In any event, the employee is generally expected to engage and consult with their employer in relation to their absence.

It is however not uncommon for an employer to be faced with a situation where the employee refuses to participate in discussions, attend medical examinations or otherwise engage in any absence or capability process. In those circumstances, when it seems that a return to work isn’t feasible, the employer may feel that they are left with little option but to dismiss the employee based on the limited information that they have.

However, a dismissal can be risky even when faced with the most intransigent employee, as the NHS Trust discovered in this case.

Facts of the case

Mr Flemming joined the Trust in April 2009 as a vehicle technician, and worked there until he was dismissed on 23 November 2015. Mr Flemming was a disabled person due to mental health issues, albeit it was noted that his condition did not affect his ability to perform his role.

In April 2012, Mr Flemming had an argument with his line manager, Mr Meiszner. As a result of this, Mr Flemming experienced chest pains and shortness of breath, and was taken to hospital. It later became evident that he had had a heart attack.

In July 2012 an occupational health (OH) practitioner declared him fit for a phased return to work. Mr Flemming considered the issue with Mr Meiszner to be unresolved, and the two engaged in mediation, but Mr Flemming stated during that meeting that the working environment was hostile. He again became distressed and experienced further cardiac symptoms. He was again admitted to hospital as a result.

An OH report in September 2012 stated that Mr Flemming should be able to return to his role, but a subsequent report in November 2013 stated that a return to work was unlikely given Mr Flemming’s feelings towards the Trust.

The Trust appointed a new HR Director in March 2015 and attempts were made to arrange OH appointments for Mr Flemming, who was also asked to submit fit notes.

Following repeated failures to attend the OH appointments, the Trust invited Mr Flemming to a disciplinary hearing for refusing to follow reasonable management instructions. The hearing was adjourned pending another OH review, but Mr Flemming did not attend the appointment.

The hearing was then reconvened, but Mr Flemming couldn’t attend. A decision was made in his absence to dismiss him for gross misconduct, and his appeal was unsuccessful. Mr Flemming then claimed unfair dismissal and disability discrimination.

The ET’s decision

The Employment Tribunal (ET) acknowledged that Mr Flemming had been ‘difficult to manage’ and that he ‘would not co-operate in genuine attempts to resolve his employment difficulties’.

However, the ET disapproved of a number of issues, including:

  1. the possibility of external mediation not being pursued;
  2. the Trust’s failure to take a ‘holistic view’ of Mr Flemming’s workplace difficulties;
  3. the ‘mechanistic approach’ to the issues raised by Mr Flemming;
  4. the Trust repeatedly arranging OH appointments when a previous report had stated that the issue should be resolved via management intervention and negotiation;
  5. an inappropriate response given by the Trust to an email in which Mr Flemming referred to suicidal thoughts;
  6. the Trust failing to investigate options in relation to ill-health retirement, or assist Mr Flemming with an application for ill-health retirement;
  7. the lack of evidence that decision-makers had been trained in equality issues;
  8. the lack of impartiality on the part of the dismissing manager;
  9. the fact that the Trust switched from a capability procedure to a disciplinary one when it was obvious that Mr Flemming’s mental health was deteriorating; and
  10. the Trust’s failure to follow the wording of its own policies.

The ET was further scathing of the Trust in relation to the above as it had a large HR team. It found overall that the disciplinary and dismissal process had not been a fair one, and upheld the claims of unfair dismissal and discrimination arising from a disability.

What does this mean?

On the face of it this decision may look as though the employer was found liable even though it was faced with an employee who refused to participate in any discussions or attend OH appointments. However, a deeper look at the circumstances suggests that, towards the end, the Trust lost patience with Mr Flemming and sought to bring the long-running issue to an end.

The ET pointed to at least two potential alternatives to the route taken, i.e. external mediation and ill-health retirement, and the Trust was unable to satisfactorily explain why those options hadn’t been investigated further. The ET unsurprisingly held that against the Trust.

This case is a reminder that the mental state of the employee will have to be considered alongside a refusal (or inability) to participate in discussions, and that treating such behaviour as misconduct may not be viewed as reasonable in the ET.

In addition, the case highlights (as is always the case) the need to pursue all available options before proceeding with a dismissal.  The ET acknowledged the Trust was not bound to provide support to assist Mr Flemming with an application for ill-health retirement, but still took a dim view of them not doing so.

Overall therefore it is worth bearing in mind that the key word in such cases is ‘reasonableness’, and that a lack of obligation to do something doesn’t necessarily mean that you shouldn’t at least consider it.

The hardest issue to deal with in similar circumstances will most likely be the feeling that the employee is simply making things difficult on purpose, and in a lengthy saga like this one managers could be forgiven for losing patience. However, trying to cut corners to bring matters to an end will likely be more costly in the long-run.

If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.

14th February 2019