Disabled employee discriminated against by Royal Mail

[TrueBlueTerrier]

Disabled employee discriminated against by Royal Mail both on dismissal and return to work

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A post person was held to have been discriminated against, on the ground of his disability, by Royal Mail when the company prematurely dismissed him on for ill-health retirement, and failed to arrange a phased return when that dismissal was rescinded, in one of XpertHR’s latest tribunal reports.

Mr Sampford was diagnosed with leukaemia in March 2009, and went on sick leave. After a couple of months, Royal Mail sought medical advice from its occupational health provider on Mr Sampford. The report, which was prepared on the basis of a brief telephone conversation between Mr Sampford and one of the occupational health advisers, suggested that he was eligible for ill-health retirement under Royal Mail’s scheme.

This came as a surprise to Mr Sampford, who complained to Royal Mail, and provided a letter of support from his consultant. Royal Mail obtained a second report, which said that there was no prospect of Mr Sampford returning to work in the foreseeable future, but which was again based on a telephone conversation. On the basis of this second report, Royal Mail dismissed Mr Sampford, only to rescind that dismissal on appeal when his consultant indicated he might be able to return to work in the near future.

Although Royal Mail originally planned for a phased return for Mr Sampford to full hours and duties, because of delays in his return date, the occupational health provider said that a return on full duties would be fine. Although Mr Sampford was indeed able to carry out his full duties, he felt vulnerable and under pressure. He brought a disability discrimination claim, alleging that Royal Mail had failed twice in its duty to make reasonable adjustments for him as a disabled employee.

The tribunal upheld Mr Sampford’s claims, finding that Royal Mail should have investigated the medical situation in more depth before taking the decision to dismiss, once it had become aware that Mr Sampford disputed the occupational health report. The tribunal also held that even though Mr Sampford was able to resume on full duties, as a disabled person he was more likely to feel vulnerable than a non-disabled employee returning from sick leave, with the result that Royal Mail should have help him with a phased return.

The case is interesting in that it highlights the difficulties faced by employers even when they, on the fact of it, seem to be doing the right thing. Royal Mail obtained medical evidence throughout and felt entitled to rely on it. And they would have been, had Mr Sampford not raised an issue with the occupational health reports, issues that ultimately resulted in his dismissal being rescinded. Employers need to take a common sense attitude to ill-health situations at work.

[General Mannerheim]

Well done expect another one of these stories next month.

[brothermagrew]

http://www.xperthr.co.uk/article/106429 ... x#sampford" onclick="window.open(this.href);return false;

Sampford v Royal Mail Group Ltd ET/1403691/09

Mr Sampford worked as a delivery post person for Royal Mail at its Trowbridge delivery office. On 6 March 2009, he was diagnosed with leukaemia, and went on sick leave. In May 2009, Royal Mail referred his case to ATOS Healthcare, its occupational health provider. On the basis of a brief telephone conversation with Mr Sampford, Dr Khan at ATOS Healthcare provided a report to Royal Mail. In his report, Dr Khan stated that, on the grounds that he did not expect Mr Sampford to be fit for work in the near future, and there were no adjustments that would enable him to return, he qualified for ill-health retirement under Royal Mail’s scheme. This scheme provides for ill-health retirement where an employee is, for the foreseeable future, incapable of carrying out his or her duties. In this context, “foreseeable future” means a period of at least nine months from the date of the relevant medical opinion.

Mr Sampford disagreed with Dr Khan, and at a meeting with Mr Roach, the delivery office manager at Bath, argued strongly that ill-health retirement was inappropriate, especially when the recommendation was based on a 10-minute conversation. Mr Sampford produced a letter from his consultant, who stated that the prospect of ill-health retirement was “very premature”. Mr Roach referred the matter to ATOS Healthcare again, and a second report was provided, again on the basis of a telephone conversation with Mr Sampford. This report confirmed that there was no return-to-work date in the foreseeable future, and that Royal Mail needed to make the decision as to whether to proceed with ill-health retirement or give Mr Sampford more time to recover.

On the basis of the second report, Mr Roach decided that the criteria for ill-health retirement were satisfied, and dismissed Mr Sampford on 14 September 2009. Mr Sampford appealed against this decision, submitting a report from his consultant that stated that, provided that his treatment went well, he should be able to return to work in the next two to three months. On the basis of that report, ATOS Healthcare recommended that Mr Sampford’s dismissal be rescinded, and he was reinstated on 29 October 2009.

Mr Sampford anticipated a phased return to work but, as a result of delays to his return-to-work date, ATOS Healthcare indicated that he would be fit for full duties on his return without any rehabilitation plan. Mr Sampford eventually returned to work on 29 April 2010, but found the experience stressful because he felt under pressure to prove that he could do the job. He remained in work, but claimed disability discrimination, alleging that Royal Mail had failed in its duty to make reasonable adjustments for him, first in respect of his dismissal, and second in its insistence on his return to work without a phased reintroduction to the workplace.

With regard to Mr Sampford’s dismissal, the tribunal agreed with him that the relevant provision, criterion or practice (PCP) was the provision in Royal Mail’s ill-health retirement procedure whereby an employee who could not demonstrate a likelihood of a return to work within nine months would be liable to dismissal under the terms of the scheme. The tribunal found that this PCP placed Mr Sampford, as a disabled person, at a disadvantage, as individuals without a disability would be more likely to be able to adduce evidence of a probable return to work within nine months. The adjustment that Mr Sampford claimed that Royal Mail should have made for him was additional patience and a more detailed investigation of his medical condition before reaching the decision to dismiss. The tribunal agreed, finding that once Royal Mail became aware that Mr Sampford disputed Dr Khan’s report and that his consultant was of the view that ill-health retirement was premature, it should have investigated the matter further.

Turning to Mr Sampford’s second head of claim, the tribunal concluded that the relevant PCP was the requirement that he return after a long period of sick leave without any rehabilitation programme or phased return to work. Royal Mail argued that this PCP did not place Mr Sampford at a disadvantage in comparison with another employee who had been off work for a similar period of time but who was not disabled, and that, given that he was able to fulfil his full duties when he returned, any phased return or rehabilitation would have had no effect anyway, so could not be regarded as a reasonable adjustment.

The tribunal focused on Mr Sampford’s evidence as to the way in which he was able to cope with a return to full duties: he felt vulnerable and under strain. In the tribunal’s view, a person returning to work after a long absence that was not related to a disability would not have experienced the same feelings of vulnerability, and this put Mr Sampford at a disadvantage in comparison with a non-disabled comparator. The tribunal held that to allow Mr Sampford a period of rehabilitation would have been a reasonable adjustment, and that Royal Mail was in breach of its duty.

Upholding Mr Sampford’s claims in full, the tribunal awarded him £8,000 for injury to feelings.

[stokes11eg]

I though R/M regognised that anyone absent from work for a lengthy time, should always undergo a phased return?

[General Mannerheim]

In this context, “foreseeable future” means a period of at least nine months from the date of the relevant medical opinion.

So they don't try and get rid of people after being off for six months,that's more the criteria thats used by Royal Mail.
Think Royal Mail got off with only an £8000 awarded against them.

[liamlayor]

Wasn't the £8,000 just for injury to his feelings? Perhaps he got a bigger award for the discrimination? Let's hope so.