A hospital administration clerk has been awarded almost £75,000 by an employment tribunal after a private hospital in north London ignored her occupational health reports and failed to make reasonable adjustments intended to alleviate her back pain.
The London Central employment tribunal found that Ms E Kalhor’s resignation from her role at The Hospital of St John and St Elizabeth in 2020 effectively amounted to unfair dismissal, as her reasons for leaving included a failure to make reasonable adjustments and a failure to investigate or respond to repeated grievances.
Claims that she had been discriminated against because of something that arose from her disability; that the company failed to make reasonable adjustments; and that she suffered disability-related harassment all succeeded in part. Her claim of direct disability discrimination was dismissed.
Kalhor, an outpatient administration clerk, suffered severe pain in her back and arm. In 2018 she was referred for an occupational health assessment and several recommendations were made, including the need for Kalhor to change her posture regularly and rotate her duties to avoid prolonged sitting and standing.
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Her employer did not look through the report. It told the tribunal that it recognised that Kalhor’s supervisor should have passed it onto management.
Later that year, the claimant logged an issue with her work area, noting that the floor was damaged and uneven. The reception desk was positioned over a cracked floor, and when her chair rolled over the crack it exacerbated her back pain. This issue was raised multiple times, and the crack was later taped over by the hospital but not fixed.
After a consultant spinal surgeon diagnosed some degenerative changes to her spine, she went to a further OH appointment. The report noted that Kalhor had to look up to speak to patients, and that the repetitive lifting of her head could aggrevate her pain and symptoms. It was recommended that consideration be given to how she could reduce this repetitive movement.
Kalhor said there was no discussion about the OH report’s recommendations with her, nor did she see the report herself. She told the tribunal that she could not leave her workstation to do something else, and that breaks were “not liked” by her manager.
Her relationship with her manager, identified as ‘JB’ in the tribunal’s judgment, was strained. At a later disciplinary hearing, JB said she would “wander off” without permission, although the claimant said she normally told people when she took breaks.
In 2019, Kalhor submitted a grievance about the state of the equipment at her workstation and the fact that high staff turnover and sickness was putting pressure on staff. She also made a complaint about her supervisor raising her voice. This grievance was not investigated.
A third OH report in 2019 said that Kalhor had a chronic musculoskeletal condition that she was receving treatment for and would need time off work. It referenced the uneven floor which Kalhor felt had aggravated her condition. The floor remained noted on the firm’s risk register, but there were no plans to get the crack fixed.
In November 2019, a fourth OH report stated that Kalhor was not fit for work and she was signed off on sick leave. A phased return was recommended and adjustments including frequent rest breaks, modifying equipment and rotating tasks away from her desk were suggested, however when she returned none of these adjustments were discussed.
In January 2020, Kalhor returned to work and found she had been assigned a new role as conciege on the reception desk. She felt this did not meet the reasonable adjustments suggested as she still had to lift her head up and down, but the hospital claimed it was more suitable as she could stand up and leave the desk.
The claimant submitted another grievance that stated OH recommendations had continually been ignored and that she had been treated with hostility on her return to work. This grievance was also not responded to.
She later resigned from her role in April 2020.
Employment Judge Mark Emery said that ignoring the occupational health reports and failure to fix the floor placed the claimant at a disadvantage. However, this failure was not directly related to her disability – it was because “ there was no sense within the claimant’s management structure that there was an issue which required addressing”.
“A comparator would have been treated in the same way, there would have been no discussion with the comparator about the need for changes, and they would not have been put in place,” the judge said.
Despite this, the judge said she was a “grudging and negative attitude towards the claimant’s disability amongst her management team”, which meant the adjustments were ignored in December 2019.
The judgment adds that the requirement for Kalhor to work her contract exacerbated her medical condition, as the nature of her role was sedentary and involved repetitive neck movements. The floor also exacerbated her medical condition as it caused her back to jolt.
“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. It was always meant to be a temporary solution rather than an adjustment to her role. Also, one of the reason for this move was for convenience, to separate the claimant from JB,” the judgment says.
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The hospital has been ordered to pay Kalhor £74,683.42 in compensation. It has been contacted for comment.
