£75k cost of ignoring OH advice
An Outpatient Administration Clerk at a London private hospital has been awarded £75,000 compensation after an employment tribunal found her employer had ignored OH advice and failed to make reasonable adjustments.
The Tribunal found that Ms E Kalhor had been unfairly dismissed. The employer (The Hospital of St John and St Elizabeth) had failed to make reasonable adjustments and had also failed to investigate or respond to grievances.
Ms Kalhor had a diagnosis of cervical spondylosis, which can occur when ageing causes wear and tear to muscle and bones. She suffers pain in her back and arms.
In 2018 Ms Kalhor was referred for an occupational health assessment which made several recommendations, specifically that she needed to regularly change her posture and needed to avoid prolonged sitting or standing.
OH advice ignored
Although the Supervisor received the report, it was not passed to the HR team or any other person in the management team.
The employee later raised a grievance, highlighting that the floor was cracked and uneven, which exacerbated her back pain when her chair rolled over the cracks. The issue was raised multiple times and although the cracks were taped over, the problem was not fixed.
After her discomfort continued, further medical investigations with a Consultant Spinal Surgeon diagnosed degenerative changes to her spine and she was again referred to occupational health.
The report arising from the assessment referenced that repetitive lifting of her head could aggravate her pain, as could looking up to speak to patients. The report suggested management consider how she could reduce the repetitive movements.
Ms Kalhor claimed that she did not see a copy of the report. There was no discussion of the report’s contents with management.
Grievance not investigated
In 2019 Ms Kalhor submitted another grievance about her workstation, as had other staff. She highlighted that staff turnover and absences were putting strain on the team.
An additional grievance was submitted about her Supervisor, who had apparently raised her voice at Ms Kalhor. The grievance was not investigated.
An additional occupational health assessment was arranged in 2019 and the OH advice identified that she had a chronic musculoskeletal condition. It referenced the uneven floor as an aggravating factor in Ms Kalhor’s pain. The damaged floor was noted on the Hospital’s risk register, but it was not fixed.
A fourth occupational health report stated that Ms Kalhor was not fit for work. She was signed off on sick leave. A phased return to work and adjustments were recommended. The adjustments included taking frequent breaks, updating equipment and rotating work away from her desk. When she returned to work none of the adjustments were discussed.
In January 2020 Ms Kalhor returned to work to discover that she had been assigned to a new Concierge role on the reception desk. She felt this did not accommodate the adjustments that had been recommended, as she had to repeatedly lift her head up and down.
Another grievance was submitted on the basis that the occupational health recommendations had been repeatedly ignored. Again the grievance was not responded to by management.
Ms Kalhor subsequently resigned from her role and lodged claims for unfair dismissal, disability discrimination, failure to make reasonable adjustments and disability-related harassment.
An Employment Judge decided that Ms Kalhor had been unfairly dismissed and that ignoring the occupational health reports, as well as failing to fix the damaged floor, had put the Claimant at a disadvantage.
The Judge highlighted that “there was no sense within the management structure that there was an issue which required addressing” and that a “grudging and negative attitude towards the claimant’s disability amongst her management team” was behind the occupational health reports being ignored.
The Judge finished by saying “the move to the concierge desk was not a reasonable adjustment. It did not significantly resolve the claimant’s pain when undertaking duties as it was a client facing role, meaning she could not move away from the desk without causing disruption”.
The judgement recorded “a failure to address at any stage the adjustments proposed by OH which would ameliorate the disadvantage, instead meeting the claimant with hostility when she did raise adjustments, or took time off, or required disability related absences.”
The judgement continued “These were not isolated acts; we concluded that underpinning this treatment was a reaction against or wilful ignorance about the claimant’s disability and need for adjustments.”
The award is more than double a recent similar case where occupational health advice was also ignored by an employer.
Key points for managers
- You don’t have to follow occupational health advice, but completely ignoring it is risky
- Discussing OH advice and any possible adjustments with employees is a very sensible step
- Not responding to grievances is poor practice and following the ACAS code is very straight forward