Tribunal rules it was unfair for employer to ‘persist in requiring improvement’ once it knew administrator had cataracts
An NHS administrator has been awarded £15,039 after her employer unfairly dismissed her for repeated administrative errors she made when she rapidly developed cataracts.
Ashford employment tribunal ruled that Kent Community Health NHS Foundation Trust had unfairly dismissed Denise Regan after it repeatedly set “unrealistic targets” for performance improvements despite her health condition.
Judge Anna Louise Corrigan said that although the trust had initially followed a fair capability procedure, it was not reasonable for it to “persist in requiring improvement” once Regan’s visual impairment was known – ”at least not without medical confirmation she could achieve the improvement required”.
Rogers worked at the trust from October 2012 until her employment ended in August 2016. For the majority of her employment, she worked in the paediatric audiology service, where she provided administrative support to West Kent Children’s Hearing Services.
Her role involved entering and extracting information, producing reports and providing service to parents and colleagues.
In November 2015, Jane Kirby, business support manager at Kent Community Health, was informed of a number of errors made by Regan, including sending a confidential report to the wrong patient, which represented an information governance breach.
Kirby received advice from HR that information governance breaches should normally be dealt with as misconduct through the disciplinary process, however Kiby wanted to manage Regan “supportively through the capability process”. Regan was invited to a formal capability meeting in December 2015, and a subsequent letter recorded areas of concern as “attention to detail and inaccuracy of information”.
In January 2016, Regan was informed she might have cataracts and told Kirby about this.
The formal capability meeting took place on 27 January 2016, and a performance improvement plan (PIP) was agreed with weekly monitoring and a final review set for 4 April. Regan was warned that if she did not improve sufficiently, formal action could be taken, potentially including dismissal.
A number of supportive measures were put in place for Regan, and her diagnosis of cataracts was confirmed on 23 February. She informed Kirby the next day, saying she believed this was why she had been making errors.
Regan had a phone consultation with occupational health (OH) on 22 March. She said she was diagnosed with bilateral cataracts, where one eye was worse than the other, and was awaiting an ophthalmology appointment. OH confirmed Regan was temporarily visually impaired and needed “management’s discretion and support with adjustments as operationally feasible”.
OH added that once treated with surgery, Regan’s recovery was expected to be quick.
The trust held Regan’s capability review meeting on 4 April, where she achieved the accuracy of work required. However, her output on a day-to-day basis was significantly lower than her colleagues. Regan advised that she did not yet have a date for surgery, and a further PIP was set to include accuracy and level of output.
The PIP record for 20 and 26 April noted a number of errors including booking a child into the wrong clinic and sending patients’ letters with the wrong venue for their appointments. The records showed Regan believed her eyesight had “deteriorated further due to the number of recent delays” and was chasing her surgery referral.
The final review meeting was on 3 May, resulting in a decision to move past the informal PIP to a formal meeting. In the meeting, Regan said “she was doing the best with her limited vision”.
The next day, a further error came to light when a parent phoned the trust to say they had received another child’s letter in with their own.
Regan signed off sick from 5 May and said this was because she “could no longer cope with the pressure at work”. She was invited to a formal capability review, which was held on 19 May. In the meeting, Regan said OH advice was “inadequate”. She also raised the fact that her stress levels were increasing, and suggested the capability process “could have been put on hold due to her cataracts”.
Regan had an appointment with an ophthalmologist on 13 June, who said he would not have expected her to be able to do computer work. He also confirmed her poor vision had “almost certainly” contributed to her difficulties at work and implored the trust to take this into account.
Regan had cataract surgery on her right eye on 21 June. The formal capability meeting resumed on 28 June, but the tribunal found that the panel was not aware of the ophthalmologist’s report or her surgery.
The panel informed Regan by letter the next day it had decided some errors could be attributed to her cataracts, but concluded there was evidence of a prolonged period of management support, adjustments and OH guidance that did not address the errors and their negative impact on patients and the service.
The decision was made to redeploy her to another role at the Wrotham Road Clinic, but her new manager found Regan challenging and felt she was “full of animosity”. Regan argued she felt there was no work for her to do. On 13 July, she raised a grievance that she was bullied and harassed by her line manager, and there were issues in relation to the management of the capability procedure.
Her employment ended on 1 August, and she was informed on 30 November that her grievance was not upheld.
Judge Corrigan accepted the principal reason for Regan’s dismissal was capability, due to the errors she made, but said the trust should have adjusted its focus to how “[Regan’s] inability to perform fully while she was visually impaired could be accommodated, rather than to continue to insist upon what was, on the balance of probability, unrealistic improvement.”
The tribunal ruled Regan was unfairly dismissed and ordered the trust to pay her £15,039 as a basic and compensatory award.
Joanne Moseley, professional support lawyer for Irwin Mitchell, said this case was a reminder that employers may have to adjust their standard procedures where an employee’s performance deteriorates because of illness.
"Employers will usually be expected to obtain up to date medical evidence and use this information to determine what the employee can reasonably be expected to do during their illness – and judge their performance against this standard,” Moseley said. “This might mean setting lower targets or providing the employee with additional support.”
Kent Community Health NHS Foundation Trust has been contacted for comment. Regan could not be reached for comment.