Health issue and working for the NHS

[Rinkytinkpanther]

This is a query for a friend and apologies for the lengthy explanation.

She works for the NHS as admin staff (non clinical). Since COVID our Trust had adapted to a remote/hybrid working policy which has worked well for everyone. Since the beginning of this year there’s been a shift to working more on site and from the beginning of June every admin member in her team was asked to return full time. She has Crohn’s disease (diagnosed 15 years ago and she has had a bowel resection). She asked if she could remain working from home as she has been able to manage her condition by doing this. Every aspect of her role is covered and she completes every task as requested. Her request was turned down. They suggested she contact occupational health and they completed their report confirming that her condition was serious enough to warrant working from home. Her manager rejected this and said her presence back on site was imperative. If she could not do any hours on site then she would have to hand her notice in. My friend took the matter to The Guardian Service (an organisation highlighted on the Trusts intranet who will pursue matters like this). They said she had a very good case (age and disability discrimination). However, her manager also rejected this.

My question is: was her manager being unreasonable. She felt pressurised to resign and felt she had no choice. She had to hand her notice in quickly because her manager was going on leave. She has now left her job but feels quite resentful as she has heard that other members of staff have negotiated days working from home due to health issues. She was paid her final months salary and is waiting for her NHS pension to come through.

Was she treated unfairly and is there anything else she can do about it?

I am disabled - how is it age discrimination? Crohns is not age related.

How was she managing her condition before she had home working? WFH may have "worked well for everyone" who was an employee, but if it worked well for management, why would they want everyone back in the office?

Did she follow the full grievance procedure? What did her union say?

Thanks for your response. Management haven’t asked everyone back only certain departments my friend is 67 years old. Her condition has worsened over the years, she worked for years without ever having to work from home. She is not a member of a union and was not aware of the full grievance procedure.

She may have a case for disability discrimination and/or constructive dismissal if she felt forced to resign.
she needs legal advice. If she has evidence of colleagues in the same or similar role this would help.

Is there definitely no part of her role that requires her to be in the office? Covering reception for example?

No part of her role was site based. They’ve recently introduced reception cover on the wards but there are ward based admins available for that. This was used recently as a reason to be on site. Other colleagues (also admins) in other departments are continuing to have one or two days WFH. Her manager has just negotiated to have two days WFH as they have health concerns. It seems a bit unfair that this new ruling doesn’t seem to apply to everyone.
She cannot afford legal advice.

She should contact ACAS and explain what’s happened, they are very helpful.

thanks very much Fizzybootlace. I’ll let her know.

Not being aware of the grievance procedure is not going to fly - she will have been provided with access to all that information and will have been told how to access it. She may not have been aware, but that is on her. Employers must provide access to that information, employees are required to then use it. It is very unlikely that any case of constructive dismissal or discrimination would succeed since she made no effort to use the procedures available to her - in almost all cases an employment tribunal would require it. It may be possible, depending on when she left, for her to raise a grievance now, but it may make little difference because she left it so late.

What other departments do will not be relevant. Nor will what her managers working arrangements are. If everyone in her department at her level were required to spend time in the workplace, that will be what is considered. I assume that she also didn't make a formal flexible working request?

If she could not do any hours on site then she would have to hand her notice in.
I am also going to pick up on this - this indicates that she was actually advised that she must do some time on site, not full-time. That would suggest that she was not outright refused working from home. If that is the case then she will struggle to justify why she should not be able to do any time at all on site when everyone else is.

I don't disagree that talking to ACAS might be useful, but I am going to be very blunt about this - if she was unaware that there was a grievance system (something that is a well known and easily available process) then she should think very carefully about whether she is up to an employment tribunal, which is a lengthy and complex / confusing process for which she would have no help. And that is assuming she is within time to claim anyway (three months less a day from her last day in work). Having taken her pension, if she were to win, and that is by no means certain (and possibly based on information here being correct, may be very unlikely) her pension income would be deducted from any award.

It might be worth running it past a few no win no fee lawyers - if nobody will take it on then that would be telling as to what outcome they expect. If someone will she may have little to lose BUT be very, very careful before committing to anyone because these "deals" are often not what they appear to be and it could land her owing money if she doesn't fully understand the terms.

I could be wrong but I thought managers had to follow occupational health recommendations.

No they don't - one would need to be cautious about ignoring a recommendation, but OH do not dictate working practices. To be fair we really don't have a lot of information here either, and we are talking about a third party story anyway. But "they completed their report confirming that her condition was serious enough to warrant working from home" only means that working from home may be a reasonable adjustment in theory, but OH do not know the demands and requirements of the job and whether those make it "reasonable". Nor are we clear whether that said all the time or some of the time. Crohns is a fluctuating condition, so would that mean that the OP could never work on site, and if that were the case then to what extent would it be reasonable for her to not undertake duties that were required on site? If her condition fluctuates then why not take sick leave when she is too ill to work?

And I am not having a go at her - simply pointing just a few questions that are relevant and which would be subject to consideration before determining whether one response is more or less reasonable.

And even then, that doesn't change the other facts - she didn't use the grievance procedure, she resigned, and even if a case could be constructed that had reasonable prospects, would even a positive outcome be worthwhile?

There would need to be a lot of thought put into the detail here. And bear in mind that whatever else is happening, the manager almost certainly did take detailed advice from HR. That doesn't mean the advise they go was right. But there are too many unknowns to be able to say that the OH opinion was worth anything.

Thanks all for your comments. She was hired as three days remote and one day on site (four day week).
She discussed flexible working and was happy to do 4:00 to 8:00pm as suggested but this apparently didn’t work for the ward. She is not clinical but admin. During Covid all admin roles were remote and many administrators continue to follow this protocol. She won’t be pursuing any resolution but is quite sad her job finished the way it did. At least she only has another six months till retirement. It’s a pity she couldn’t stay until then.

I am confused. You said she was 67. The retirement age is 66, so why does she have another 6 months until retirement?

I appreciate she may not have been required to attend on site during Covid, but that is in the past now. I don't really understand the comment about her offering to do 4 - 8 pm. If she was offering to attend the workplace at that time, then she could attend it at other times. If her medical condition was such that she couldn't work on site then the time she was on site would be irrelevant. She either could or couldn't work on site. It now appears you are saying that she could, but only for 4 hours and only at a specific time. There is something missing from this that explains that discrepancy.

Apologies, she is actually 66. She was asked about flexible working and 4:00 to 8:00 was suggested. It appeared to be the best solution for all but was later ruled out. They were insistent about her returning to site. She has to have access to toilets because of her illness. The option of the suggested time was because most people would have finished their working day (would avoid embarrassment with shared toilets). OH raised this in their report.

That still doesn't make any sense, but if she accepts the situation it probably isn't worth exploring any further.

It is an inexplicable conclusion but typical of the NHS!

In her situation id raise a grievance and then put the whole sorry thing behind me and enjoy my retirement.

Did she involve her HR.? They would support reasonable adjustments and also if could not find a solution to support in trying to find a suitable role. Her manager can not just reject. There has to be meetings and HR support I would say she definitely has a case here

I don’t accept she didn’t know about the grievance procedure - they are widely available on all trust intranet sites

NHS practice is, like most employers, far from perfect. But I agree that now knowing a grievance procedure would even exist appears unlikely, and I suspect the OP has received a highly edited version of what has happened because there is much about this version that makes no sense. Including the fact that she absolutely cannot attend the workplace, but can manage to do so for 4 hours in the late afternoon / evening (out of what appears to be a four day week).