Princess Alexandra Hospital “directly discriminated” against employee due to their disability
Health / Tue 3rd Oct 2023 at 07:12am
A HARLOW hospital directly discriminated against an employee due to their disability a tribunal has found. However claims of failure to make reasonable adjustments and harassment related to disability, are not well-founded, the tribunal between a former employee of Princess Alexandra Hospital and the trust concluded reports the Local Democracy Reporter.
The claimant who suffers from Scheuermann’s disease, severe fibromyalgia and Pars Defect, successfully applied for a full-time position as an A&E clerical coordinator at the hospital in October 2021 – a step up from the band 2 position he had been in. While he was waiting for a start date he opted to work in bank – temporary contracted shifts through NHS Professionals (NHSP) – which he started on October 28.
However on October 24 – after three long shifts which aggravated his fibromyalgia – he asked for a part-time role instead of the full-time position he had successfully applied for. The trust replied 13 minutes later explaining “it would not suit the needs of the business for a part-time position”.
A senior manager added: “In regards to just working on NHSP, this would not be something I would want to commit to being as you struggle at times with your health problems and no disrespect to you, but I really need to know that shifts would not be cancelled at short notice.”
A judgement from employment judge Stephen Bedeau said that the response from the senior staff member, almost immediately, was that she was unable to offer him bank work – a decision which would have been different for someone without his disabilities.
The judgement from Judge Bedeau added: “Her statement to the claimant indicates that his disabilities significantly influenced her decision not to commit herself to him working on Bank. The impact on him was that he felt it was an unjustifiable attack on his commitment to work and created an uncertain future for him. He went on sick leave two days later. In view of our findings above, we have come to the conclusion that this claim is wellfounded.”
On November 26 the claimant lodged a grievance with the trust alleging that the respondent had failed to consider reasonable adjustments and that he had been discriminated against because of his disability as he requested part-time work, but the responses were unsupportive. There followed emails between him and the trust in which he challenged the refusal to allow him to work part-time. The trust repeated that it was due to the business needs of the A&E department.
But an email to him dated November 29, seized on by the claimant, said: “Unfortunately, your disability was not taken into consideration in the advice below and you will receive further communication around this.” The judgement added the trust had acknowledged that the claimant’s disability was not taken into account in the decision to refuse to allow him to work part-time.
It said: “On the face of it, this failure to take his disability into account was discriminatory. It was less favourable treatment because we conclude that the particular circumstances of the comparator, for example, with caring responsibilities, would have been set out when seeking advice from human resources.
“The claimant’s circumstances were simply omitted when seeking advice from HR. We, therefore, conclude that this was direct disability discrimination.”
It adds: “In our judgement, we concluded that only two of the direct disability discrimination claims, are well-founded. The claims of failure to make reasonable adjustments and harassment related to disability, are not well-founded.”
The case is listed for a Remedy Hearing on October 20 2023, if not settled. Princess Alexandra Hospital Trust said they would not be making comment at this time, as there will be a further hearing.
What disgraceful conduct by PAH senior management. All PAH managers should understand that human resources policies and practices should be in accordance with employment law and the Equality Act in particular. PAH CEO Lance McCarthy should discipline the manager in question. I hope Unison and the staff side representative (a Harlow Labour councillor for Toddbrook ward) will be making strong representations to senior management.
The NHS is supposed to be a caring profession. Clearly, CEO Lance McCarthy needs a refresher course.
David, have you made a harsh assessment? This guy was offered a full time position which was a promotion, so no discrimination there. I am confused on the next bit, was he working on bank for 3 long shifts or was he working in his pre bank role? He knew he had health problems so why did he allow himself to work too many hours that were good for him, something which then affected his ability to do the job he had been offered. Does he not have responsibility to manage his own circumstances. I agree the hospital were careless with their words although it seems they were stating the position, especially as he then went off sick. I don't agree with discrimination but I do believe that people have to manage their lives. Having been an employer, I know how hard it is when people can't do the job they are paid to do.
Having cleaned up the mess the HR Manager/Head of HR made with a previous organisation's HR department, this does not surprise me at all. Yes it is fair to say the employee's Senior Manager appeared to show little consideration to the employee's request to work part-time, but it is apalling that an HR Department in an organisation of this size and stature failed to adequately advise the employee's manager of the need to consider the employee's health issues when made a request to work part-time and properly consider the request and potential options if the request could not be accommodated. Shame on you Princess Alexandra Hospital for employing such inept HR staff
There are always two sides to a story and this one couldn’t be further from the truth. Don’t always believe what you read people!
Well done PAH, why o why would a one legged man sign up for the arse kicking team, it was never going to work
If he had "severe Fibromyalgia" as well as other medical conditions, it was all credit to him he was managing to work at all, so the request of part-time in this case makes absolute sense, and I'd recommend a cap on 16 hours. Even this would be a challenge for many with even mild to moderate Fibromyalgia. I know I couldn't possibly manage a job like this. I really admire him for even trying. The Trust are being obstructive, particularly if this person is a good employee.
Somethings not right about this. With the conditions mentioned above a lot of fibro pts would have trouble with one long 12 hour shift and would be left for days in recovery..at least 3 days recovery, however, back to back shifts would rapidly caused such a deterioration they'd be off work for 2 weeks and that's if they're on top of their condition. I think that the medication of such a condition makes you feel invincible that you work at lightning speed and not have it impact your body and it does affect the ability for decision making, pacing your activities etc. I don't think the guy thought it through and for that part they shouldn't be blamed. Additionally, there is such a massive push by the DWP to get more disabled people in work, they don't consider the costs to the employee and employer, they're people with zero medical training enforcing targets of the government without actually costing it up across areas of sustaining the persons health and finances. The response though is ignorant and in an age of information, as long as the NHS stood, is not acceptable. For that their needs to be an acknowledgement and reparations given. At the end of the day our health is not guaranteed in this life anyone can become disabled or terminally ill.
In response to Voteforme Just because he knew he had a disability he would not know that it would necessarily put him in a flare or be in such pain after 3 long shifts. I can only imagine you don't have any of these conditions nor are you medically trained or you would not say such nonsense. I sadly do have one of the same conditions this man has. So I can talk from experience. And he will have just had a can do attitude at the time as we all live in hope and push ourselves to much. Then the realisation kicks in. There is no excuses to how he was treated and how he was made to feel. I just hope they learn from this. I'm so glad he won.