Case History
Sacramenta D’Silva worked at a chest clinic at Croydon Health Services NHS Trust for 18 years. She lost her job after telling her employer that public facing work was impossible because of her ‘public phobia’. In a tribunal ruling D’Silva won £56,000 for unfair dismissal.
After a long sick leave, she returned to work in 2017. However, a restructuring had taken place meaning her administrative role now encompassed reception work.
Her stress and anxiety were chronic and counted as a disability. D’Silva repeatedly told her manager that she found working on the reception desk stressful. Several times she expressed a desire to return to work and felt there were roles in the trust that offered non customer facing roles.
An Occupational Health assessment decided she was fit to work in the role allocated, except for the front desk. This is because she does not have the necessary functional resilience for this. Later, they told her this is a temporary arrangement until she was fit to do reception work.
She took sickness absence leave later that year after going to A&E with chest pains and stress.
In a sickness absence review meeting in January 2918 the employer told her that it was unsustainable to give her a back office role as all of her colleagues were covering her on reception. By this point a member of staff covered reception. They claimed there was enough back office work for D’Silva. The clinic’s managers disagreed. The management claims a resolution is impossible because D’silva cannot fulfill the responsibilities of the role.
She looked for other NHS roles but found nothing suitable. The trust suggested some roles. However, D’Silva felt she could not do any of them and put in no applications for redeployment.
Public phobia diagnosis and dismissal
The OH doctor later diagnosed D’Silva’s anxiety about public facing roles as ‘public phobia’.
The trust decided the temporary adjustments to remove patient facing aspects from D’Silva’s role were unsustainable and impacted service delivery.
In January 2019, D’Silva’s employer dismissed her on grounds of capability due to ill health.
Case Outcome
Finally, the tribunal judge Anna Corrigan concluded that the trust made no effort to find D’Silva an alternative role. They left her to look for vacancies herself.
“The duty to make reasonable adjustments is on the respondent not the claimant.”
“Leaving it to the employee to find an alternative role might successfully lead to an adjustment being made in some cases but the approach adopted by the respondent to leave all the effort to the claimant, and indeed the only slightly better ‘light touch’ approach in the policy, runs the risk that, like here, there are a number of suitable roles that would be reasonable adjustments but an adjustment is nevertheless not made.”
In the judge’s findings, D’Silva’s employer used her past absences against her. The tribunal felt that if a proper redeployment procedure had taken place, D’Silva could remain working in a suitable vacancy.
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