An NHS administrator whose brain haemorrhage left permanent impairments has been awarded more than £27,000 after the Trust she worked for failed to make reasonable adjustments.
The administrator sustained a brain haemorrhage that left her with noise and light sensitivity, won the damages after her employer took more than a year to act on recommendations made in a series of occupational health reports. The employment tribunal found that the Trust had failed to make reasonable adjustments after the reports documented how the brain bleed had left her with an impairment that reduced her ability to concentrate in noisy environments. Employment judge David Harris disagreed with the respondent’s case that it had taken reasonable steps throughout the period that the employee had complained about the difficulties she was encountering in the office. She, however, was not successful in further claims of disability discrimination under section 15 of the Equality Act 2010 and constructive unfair dismissal.
The tribunal heard how she was left with a range of permanent impairments, including memory and concentration problems, and a sensitivity to noise and light, after she sustained a massive subarachnoid brain haemorrhage in February 2001. More than 10 years later, on 3 March 2014, the claimant started to work for the Trust’s predecessor organisation, 2gether NHS Foundation Trust. Employed as a part-time administrator in the Service Experience Department, she was contracted to work 18.5 hours a week in a quiet office alongside two other staff members. The tribunal heard, however, that shortly after her first work review in June 2014, a patient advice and liaison officer joined the office and the noise level increased significantly. This was because the person had to speak to patients over the phone. Noticing she was having difficulties concentrating on work tasks, she reported her problems to her then line manager, who moved her to a quieter office and referred the claimant to her first occupational health assessment.
Although the claimant’s working conditions had improved by the time a second, follow-up, assessment was undertaken that November, the report concluded that further reasonable adjustments might be needed in the future and periodic reviews were recommended to determine what adjustments might be required. In August 2015, she moved back to her original office, which was now staffed by five people hot-desking. The claimant experienced problems with the noise levels and although she was advised to wear ear defenders, her request to work in a different office was refused.
The report from her third occupational health assessment in January 2016 concluded that ear defenders did not offer a long-term solution and that she could cope with her workload provided she had ‘a degree of control over noise and traffic through her work environment’. The tribunal heard that a few months after an office move that March, ‘it was clear that the modest adjustments that had been made for the benefit of the claimant were producing little beneficial effect’.
A fourth occupational health assessment on 19 July recommended two options: either a move to ‘her own quiet and guarded workspace’ or ‘redeployment within the trust to a more suitable work environment for her’. However, the tribunal heard that her employers were ‘resistant to the idea of her being relocated into a separate office’ and consequently ‘no offer of redeployment was made’.
When a sixth occupational health assessment was undertaken on 12 January 2017, she informed the occupational physician that the office environment was less noisy and consequently no further assessments were arranged.
However, in June 2018, another patient advice and liaison officer joined the team in her office, which resulted in a significant increase in noise. At the time, she informed her new line manager that she was struggling to concentrate on work duties. Consequently, she requested a move to what she considered the quietest corner of the office. However, she became frustrated when the line manager was ‘slow to report back’ on the request which had to be agreed by clinical manager. According to the claimant, on 5 July, the line manager ‘bluntly stated’ that her request had not been agreed because ‘a new staff member would have to go on that desk because it was near his desk and she would need to sit near him’. After the conversation, she emailed her line manager and explained how she felt ‘extremely let down’. She added she did not feel able to come into work the next day. The claimant was subsequently absent from work for a week; the reason given being work-related stress.
On her return on 12 July, the claimant talked to the clinical manager who suggested she move to another desk, but still in the noisy office. When the claimant suggested she wear ear defenders as she had done in the past, the CM informed her ‘that would not be appropriate’ because she would need to ‘hear the telephone and other colleagues.’ The tribunal noted the occupational health report from the seventh assessment on 16 August had been ‘very clear’ that reasonable adjustments were needed so she could ‘function well in her work role’. Despite this advice, the CM did not put any ‘concrete proposals’ forward. In addition, she was told, ‘in clear terms… that there were no further adjustments that could be made to the working conditions in [her] current office environment’.
About seven weeks after the occupational health report’s recommendation had been made, the respondent undertook a display screen equipment (DSE) assessment in her office. Commenting on the decision to undertake the DSE assessment, the tribunal noted: ‘No satisfactory explanation was given… for arranging that assessment… From what the tribunal could tell, it appeared to be a largely pointless exercise.’ The tribunal noted that when the line manager undertook the DSE assessment, he was required to respond to a question that asked: ‘are levels of noise comfortable?’ Although he ticked ‘no’, he did not add anything to the column headed ‘Action to take’. In its ruling, the tribunal said the line managers action ‘fell far short of what might reasonably be expected as a genuine attempt at conducting a DSE workplace assessment’, adding that it ‘was of no assistance whatsoever in identifying any adjustments that were needed to the claimant’s workplace’.
Later that same year, on 31 October, the clinical manager reviewed the claimant’s timesheets and noticed that she had worked late on 19 October. She subsequently discovered the reason for this: she was struggling with the noise in the office and consequently ‘was having to stay on late to complete her work after others had left to go home’. The tribunal referred to an email the CM sent to her in which she appeared to assume that the claimant was taking longer to complete her work than might be expected and therefore she suggested reviewing her workload.
Judge Harris said the clinical manager’s assumption ‘was missing the point’. What’s more, the tribunal was surprised that the CM had not considered the difficult working conditions she had encountered, especially as the clinical manager would have been aware of the seventh occupational health report back in August.
Then, on 1 November, the claimant emailed the CM informing her that she would not be coming into work that day or the next, as she had been having ‘headaches and nausea’. ‘I will phone you […] after my annual leave, to discuss somewhere else to work as I do not feel able to work in the current work environment anymore due to the level of noise,’ she added.
As I have explained many times, noise greatly affects my ability to concentrate – the earphones are not enough!’ The tribunal heard that 31 October was her final day at work; she never returned.
However, on 23 November, she attended a meeting with the CM, another colleague and her union representative, to discuss the seventh occupational health assessment. During this meeting, the clinical manager said that ‘reasonable adjustments had been offered’ and she was ‘finding it difficult to know what further adjustments might be offered’. Commenting on the November meeting, the tribunal noted: ‘It was understandable that the claimant would have left [this] meeting… believing that no further adjustments would be carried out to her work or her workplace. The clear message from the respondent was that they had done all that they reasonably could and that they could not think of anything else to do.’ The prospect of redeployment was also mentioned, but no offers were made.
The tribunal heard that in January 2019, she applied for the post of audio typist/admin assistant at the Trust. The CM said she would be happy to provide a reference and that she thought the job would be perfect for her. Later that month, the claimant was informed she had been successful in her application, albeit subject to references. However, the clinical manager’s reference noted her sickness absence and this resulted in the claimant being informed that her application had been unsuccessful. Blaming the clinical manager for the loss of the job opportunity, she submitted a formal grievance in late February 2019 that outlined her allegations of disability discrimination.
An informal grievance meeting, held on 29 April, proposed several adjustments, the tribunal heard. To start with, she would be moved to a quieter desk in the office and supplied with noise-cancelling headphones. In addition, her work phone would be configured so that a flashing light signalled incoming calls when she was donning her headphones. As a further adjustment, partition screens would be installed around her desk to reduce noise levels and distractions. The claimant wanted these adjustments made quickly so she could return to work. The tribunal found, however, that from this point until her resignation on 24 October 2019, Rose ‘put up unnecessary barriers to her return to work’. Although she wanted to be satisfied the agreed adjustments had been made before she returned, the tribunal concluded that ‘there was no reasonable grounds for [her] to doubt that the respondent would implement [them before her return].’ On 23 October, the day before she resigned, she sent an email to her employer that stated: ‘Most of the correspondence I have received from my employer has a negative tone where I have felt attacked and ignored. The amount of time and effort for a small request is astonishing and exhausting. I have previously felt and currently feel there is no genuine case or concern to help me return to work […].’ On 4 November, her employer requested a meeting ‘to discuss options other than your resignation’. The claimant, however, insisted her decision was final.
In the ruling, Judge Harris concluded the respondent had breached its duty to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010 between 1 July 2018 (when the new patient advice and liaison officer joined) and 8 July 2019 (when agreement was finally reached to make required adjustments).
It also found the respondent had failed to make reasonable adjustments between 1 September 2015 and March 2017. However, her claim had not been made in time. The remedies hearing, held on 5 April 2024, awarded the claimant £18,000 for injury to feelings, plus £8,454 interest on that award. She was also awarded £612 for loss of earnings plus £141 interest on that award.
The tribunal judged that this was ‘a case that involved… serious conduct on the part of the respondent over a 13-month period’. However, it did not agree, as she claimed, that the case amounted to a ‘campaign of harassment or discrimination’.
SOURCE – IOSH
