An Employment Judge has strongly criticised an employer's response to an employee's disclosure that he was considering suicide, saying that in the Tribunal's "combined 60 years' judicial experience we have not before seen such an appalling response."
The Facts of the Case
Mr Flemming was employed as a motor vehicle technician by East of England Ambulance NHS Trust (the Trust) from 1 April 2009.
On 30 April 2012, there was an altercation between Mr Flemming and his line manager, Mr Meiszner. After this altercation Mr Flemming became very upset and experienced chest pains, following which he was hospitalised for three days and later diagnosed as having had a heart attack.
On 6 August 2012 as part of a planned phased return to work recommended by occupational health, an internal mediation was arranged between Mr Flemming and Mr Meiszner. During this mediation Mr Flemming reportedly became distressed and stated that he was given an ultimatum that he would have to shake hands with Mr Meiszner before he was permitted to return to work. This resulted in Mr Flemming being hospitalised again.
There followed a series of Occupational Health (OH) reports. These initially reported that Mr Flemming would be able to return to his role, However, by 14 March 2013 it was advised his symptoms would be unlikely to improve until his perceived concerns regarding work were improved. In November 2013 an OH report stated that a return to work was unlikely given Mr Flemming's feeling towards the Trust. At this point Mr Flemming was diagnosed with Post Traumatic Embitterment Disorder.
In March 2015 the Trust appointed a new HR Director who sought to arrange further OH appointments and requested Mr Flemming submit sick notes. The terminology of the requests changed at this time with the request to attend an OH appointment being phrased as a reasonable management request.
In June 2015 Mr Flemming sent a strongly worded letter to the Trust's Interim HR Director in which he stated that the Trust's actions had caused him to contemplate suicide. In response to this the Interim HR Director sent Mr Flemming an email saying while she appreciated his mental health problems his letter was not acceptable and if he should continue to write such letters he would be referred to the Trust's solicitors.
Mr Flemming continued to send a large number of emails to various individuals, including one in which he depicted himself with demon like figures on his back. He also failed to attend a sickness review meeting or submit sick notes.
Ultimately Mr Flemming was invited to a disciplinary hearing for refusing to follow reasonable management instructions. This original hearing was adjourned to get further OH evidence. Unbeknownst to the panel Mr Flemming recorded the meeting on his mobile phone and during breaks the chair of the panel was recorded making many inappropriate comments including saying "getting up and pummelling it into him with my fists is probably not appropriate in terms of policy is it?"
Having listened to the recording Mr Flemming refused to attend a further OH appointment. At the reconvened appeal hearing Mr Flemmings was dismissed for gross misconduct in his absence. Mr Flemming appealed but was unsuccessful.
Mr Flemming then brought claims for unfair dismissal and disability discrimination.
The Employment Tribunal Decision
While the Tribunal acknowledged that it had been difficult to manage Mr Flemming, it found that there had been a failure to follow a fair procedure and as a result held Mr Flemming had been unfairly dismissed and discriminated against on the grounds of disability.
The ET was particularly critical of the Trust given its access to resources and held that there was no evidence that the decision makers had received any training in equality issues and the dismissing manager displayed a lack of impartiality (as captured by Mr Flemmings covert recordings) which meant there was no realistic prospect of a fair procedure.
The ET also commented that while the Trust had multiple policies it failed to apply them in a holistic manner. The Trust also failed to pursue options such as external mediation and ill health retirement despite this being suggested by occupational health.
While the decision in this case depends on the individual facts it does highlight the importance of implementing occupational health advice where this is possible and of dealing sensitively with employees with mental health issues. The facts also highlight the importance of exploring all options in an open minded way, taking a holistic not mechanistic approach to disciplinary and capability issues.
It is undoubtedly difficult to find the right balance between caring for the employee, caring for the employee's managers and colleagues and acting in the best interests of the employing organisation. Employers should maintain a sensitive approach and ensure adequate support and training is in place for all those involved with dealing with such circumstances.