High handed behaviour was a breach of trust and amounted to discrimination

A care home manager was subjected to disability-related harassment and was unfairly dismissed after an HR representative asked her GP about her mental health without her consent, a tribunal has ruled. The Claimant was diagnosed with idiopathic intracranial hypertension (IIH), a neurological condition marked by an increase in cerebrospinal fluid in the brain. Symptoms of IIH include headache, pain and other symptoms that may be brought on by stress.

The tribunal heard that the changes in the employees life due to IIH resulted in her experiencing depression and anxiety and also that the pandemic caused her to work additional hours, which she found exhausting.

Following an outbreak of Covid at the care home in January 2021 the employee experienced a flare up of her IIH, which was exacerbated by stress. During the difficult times of Covid-19, there was a great deal of disruption to her sleeping pattern and an increase in stress but the employee continued to work as best as she could until she eventually had, what was described as a “nervous breakdown” at work.

After only a few weeks, the HR representative contacted the employee by text, to ask if she had been prescribed anti-depressants, who had prescribed them, how long she had been taking them and what her prescription history was, if she could sign a medical consent form in order to seek a medical report to determine when she would be able to return to work. The employee agreed but stated that her nurse practitioner had said that as she had only started treatment 10 days ago, asking for a medical report at this stage was “pointless” as she needed to allow the tablets and therapy time to work. Despite this, the HR representative sent the consent form to the employee.

The employee raised a grievance as she was concerned that her employer was asking for a medical report so quickly and was complaining about how her absence was being handled in comparison to any other employee.

When the employee was provided with the GP report it was apparent that the questions asked of her doctor did not match those she had agreed to. The employer had added supplementary questions, namely: “Has the employee discussed what caused this?” and “The employee’s doctor’s note stated that she is depressed and stressed; would you also advise us, as an employer, to get in touch with NMC regarding fit to practise?”

The tribunal judge remarked that there were no questions asked of the GP relating to suggesting reasonable adjustments or ascertaining a likely return to work date. Due to the GP not advising reasonable adjustments or a likely return date, the tribunal said the purpose of the report was not fulfilled.

The tribunal found that trust and confidence was damaged by “conduct which is high handed, arrogant and disingenuous”, and that it “strikes at the heart” of the confidence an employee should have in their employer when dealing with “private health matters”.

The judge ruled that the claim of disability-related harassment regarding questions that were asked of her doctor without her consent was successful and awarded £17,000 in damages for emotional distress and psychiatric injury, and £1,856.92 in interest.

It is vital that employers apply absence procedures consistently and that when medical consent is requested it is proportionate and necessary. If you require support to manage a long-term absence concern, contact us on 0800 9995 121.

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