NHS Worker Who Reported Suicidal Thoughts Was Unfairly Dismissed
Mr Flemming, who was employed by the East of England Ambulance Services NHS Trust, lost his job in 2015 after he failed to comply with requests to attend meetings and appointments with the organisations’ occupational health function after mental and physical health conditions prevented him from working for a significant period of time.
In April 2012 Flemming suffered a heart attack following an “altercation” with his line manager, which left him feeling upset and stressed.
He claimed that nobody from the organisation had contacted him to ask about his health and wellbeing following his illness. He told the tribunal this lack of contact had contributed to the manifestation of his mental ill-health as he had been unable to come to terms with how he had been treated by his manager.
An occupational health assessment identified some psychological concerns, but ultimately found that he was fit to return to work on a phased basis. However, due to continuing health issues, he did not return until November 2012.
Around two weeks after his return there was a further incident with his manager and from this date Flemming did not return to work.
He was diagnosed with panic disorder and, later, depression and mixed anxiety-depressive disorder.
In April 2013, Flemming was invited to a sickness absence review meeting where he was presented with several options – including dismissal on grounds of capability and returning to work with reasonable adjustments.
However, it appears no decision was made and in December 2013, a further occupational health report suggested thatFlemming showed “bitterness towards the Trust which he feels will never resolve no matter what intervention is put in place”.
The OH practitioner said it had become clear that the clinical descriptions of his condition had been inadequate, and she was of the opinion that he had post trau matic embitterment disorder, which she said can result in “chronic” disability in “almost all areas of life”.
Several further occupational health meetings were scheduled throughout 2014 and 2015, many of which were not attended by Flemming, and he was told that if he did not attend, formal action would be taken, or his sick pay would be stopped.
In June 2015 he sent an email to the Trust’s interim HR director suggesting that the organisation was trying to “push him over the edge” and accusing it of “corporate bullying” on such a scale that made him consider “ending it all”.
In response, the HR director sent him an email stating: “I appreciate you may have mental health problems, but this letter is not acceptable. In future do not write to anyone else in the Trust except me. If you continue to write such letters, we will refer them to our solicitors.”
Several staff involved in investigations and the disciplinary process were also sent diagrams Flemming drew of himself that appeared to show a “demon-like” figure on his back.
Flemming was eventually dismissed from the organisation in November 2015 because of his continued failure to attend occupational health appointments, disciplinary hearings and for a lack of cooperation during the disciplinary process.
The tribunal found that the interim HR director’s response to Flemming’s email “demonstrated no insight at all into the likely impact on a person contemplating suicide”.
In its judgment, Judge Richard Cassel said: “In our combined 60 years’ judicial experience we have not before seen such an appalling response.”
The tribunal also found that Flemming’s disability had effectively caused his anger and conduct.
A hearing to discuss compensation was set for earlier this month, but a decision has not yet been published.
Cleaner Unfairly Dismissed For Topshop Pay Protest
A cleaner at Topshop’s flagship London store has won up to £75,000 after an employment tribunal found she had been automatically unfairly dismissed for trade union activity.
In 2016, Mrs Benavides, a mother of three, helped organise a 200-people protest outside the retailer’s Oxford Street store, demanding better pay from the store’s outsourced cleaning company Britannia Services Group.
Benavides, an active member of the United Voices of the World union (UVW), and her colleagues were demanding the London Living Wage, rather than the then minimum wage rate of £6.75 per hour.
Having worked for Britannia, and its predecessor, since 2009, the claimant had been involved in various group grievances against the employer, which included disputes about holiday pay, uniforms and favouritism among management.
In February 2016, UVW wrote a letter to Britannia entitled “The London Living Wage and disparity of terms and conditions between outsourced and in-house staff”. The letter noted Topshop’s parent company Arcadia’s recent rise in profits, and that many of the respondent’s employees lived in poverty.
The letter stated that “a large demonstration will take place on 12 March in the event that a resolution has not been reached by 11 March”. It then gave a link to a Facebook site for the protest.
The respondent, Britannia, did not reply. The demonstration went ahead, which resulted in Topshop closing for 15 minutes. The judgment said that Mr Shaw, Britannia’s owner and managing director, “was thoroughly irked and annoyed by the protest taking place” and that he went as far as saying that after the 12 March protest he thought that the claimant should be dismissed.
But Britannia denied that the claimant was dismissed due to her trade union membership or any legitimate trade union acts, instead saying that she was dismissed on grounds of gross misconduct relating to her activities on social media and for breaching the company’s social media policy.
However, the tribunal judge differed, agreeing there is nothing unusual or unreasonable about a union seeking to place pressure on an end-user, which is not the formal employer, in order to secure improvements in terms or conditions.
The respondent’s legal team argued that a union’s “typical activities” cannot include “large scale public direct-action protests,” but the tribunal said they can and rejected the arguments that the reason for dismissal was gross misconduct.
“The entire process,” read the judgment, “we conclude, was designed to ensure that the Claimant was dismissed as a result of the various union activities she had been engaged in. The dismissal was substantively unfair.”
Judge Pearl told the tribunal: “No reasonable employer would have been acting reasonably in dismissing Mrs Benavides in the circumstances.”
Compensation will be decided at a later date but could be up to £75,000. Britannia has indicated that it will appeal.
Third Of Mums Using Toilets To Express Milk At Work
Fifty-six per cent said they have had to express milk in unsuitable places, including the staff room (18%), their car (14%) and at their desk (11%), which has put them at risk of embarrassment, infection and issues with milk supply.
The survey of 2,000 breastfeeding mothers by law firm Slater and Gordon found that in seven in 10 cases employers never raised the issue before the mother’s return to work and 29% of staff were too embarrassed to do so themselves.
Half said their employer either did not know what to offer them when they returned to work, did not have any suitable facilities or felt embarrassed if the subject was brought up.
Although there is no legal requirement for an employer to grant paid breaks for a breastfeeding mother to feed their child or express milk for storage, they must be provided with a suitable place to rest.
One breastfeeding mother said she was offered no specific room to express milk at work, so had to find an empty office or conference room to do so – both of which did not have a lockable door.
Many women also experienced “embarrassing” consequences from not being able to express milk as and when they needed to, including leaks (22%), exclusion from conversations (13%) and having to miss important meetings (11%).
One in 10 had developed mastitis, an infection caused by a build-up of milk, while a third claimed a lack of facilities to express milk made them feel anxious or stressed.