A ferry worker has been awarded more than £28,000 for unfair dismissal and unfavourable treatment after he developed a hip condition that affected the tasks he was able to carry out.
Mr Allen, a chief cook who worked for Caledonian MacBrayne Crewing on ferries operated by CalMac off the west coast of Scotland, was dismissed by the company after he was unable to complete all the tasks he had undertaken previously, due to a muscular condition that causes pain in his hips and legs.
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In February 2022 Allen was diagnosed with bursitis and signed off as unfit for work by his GP. He was struggling to sleep and could only walk short distances with a limp.
He was referred to the ferry operator’s occupational health service in April, which recommended that he be assigned to a role where he was not on his feet for long periods when he was fit to return to work. The OH report also recommended a phased return to work and tasks that could be carried out while seated.
During a welfare meeting with his employer in May, Allen noted that his physiotherapist had said standing for 12 hours would not be feasible for him. However, crew resources analyst Ms Urquhart said it would be difficult to put a chair in the galley for him because of its small size and that the week on/week off pattern of shifts meant a phased return was not possible.
Phased return recommended
In July, Allen’s GP advised that he may be fit for work if he returned on a phased basis with amended duties and hours. The GP’s note read: “Light duties are encouraged. Short breaks every 4 hours are recommended. He is feeling able to assist in kitchen. He should avoid heavy lifting for short term.”
Allen was invited to a capability meeting in August because he had been off work for 168 days. He was advised that the company could consider terminating his employment on ill health grounds.
A further OH report in August suggested that Allen remained unfit for work in his chief cook role, but “management may wish to consider temporary redeployment into an adjusted role with lighter duties” as his condition would likely improve over time with his ongoing physiotherapy and osteopathy sessions.
During the capability review meeting, retail development manager Mr Smith raised concerns about accommodating redeployment because of the small size of the ferry and team. He said there was “not a lot of room for additional support to accommodate restrictions such as [no] heavy lifting, additional rest breaks etc”. He also explained that a phased return would be unlikely because of the shift patterns on the Argyle & Bute route the claimant worked.
It was agreed that Allen would be moved to the Isle of Arran route instead, and work as a weekend dayworker until the end of the summer season. He worked on this route with amended duties until October, when moved to the Caledonian Isles route.
On his first day on the Caledonian route, which was on a larger vessel, it became apparent the ferry’s head of catering Mr Kerr was not expecting him. Kerr noticed Allen was limping, and after around 10 minutes on board Kerr said to him “you’re no good to me, you’re not fit”, or words to that effect.
Kerr contacted the company’s HR department to say he would not accept Allen working on the ferry.
Medical suspension
Allen was medically suspended from duties, but later began a phased return on the Isle of Lewis route. Although he performed well in the galley on this route, he was again suspended in December 2022 after his doctor suggested he might not fully recover for another year.
Alternative shore-based work was deemed impossible and in January 2023 Allen was dismissed “due to your long-term incapacity and due to the unlikelihood of your return in the foreseeable future”.
An employment tribunal in Glasgow found that Allen’s dismissal had been unfair and that he had been treated unfavourably because of his disability.
Employment Judge Russell Bradley said in judgment: “A reasonable employer, having previously engaged occupational health professionals to advise on the claimant, would have sought advice from them before dismissing him. Given the improvements in the claimant’s condition and the fact that he had performed well in the galley of the Isle of Lewis in November, a further medical examination might have revealed that his prognosis for a recovery to the duties of his role in the foreseeable future and was probable much sooner than December 2023.”
The tribunal awarded £28,487.25 in compensation, including awards for injury to feelings, loss of earnings and unfair dismissal.
A CalMac spokesperson said: “We note the judge’s decision and are disappointed with the outcome. We are considering our response.”
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