Background: 

The claimant commenced employment as a Laser Specialist (later promoted to Head Consultant Specialist) in May 2017.   The claimant was then appointed as Clinic Manager, following an internal process, in July 2018.  She was given a salary of £28,000 plus bonuses.  She oversaw 15 staff including 3 doctors and a nurse.  

The claimant was suffering from headaches and high blood pressure which she attributed to work.   These issues eased as a result of the pandemic when the clinic was shut.  It reopened in July 2020 with extended hours and the creation of separate teams.  

In August 2020 the claimant messaged asking about a chair at reception due to pains she was suffering in work.   Her line manager said it shouldn’t be a problem.  The health concerns persisted and later in August the claimant met her manager stating she could no longer work under the conditions.  At this meeting the claimant stated she could no longer be the Clinic Manager and another role was discussed relating to fixed shifts and different duties so the claimant could move around more (rather than standing in one place).  However, these matters had to be confirmed by HR so the claimant would have to wait until the HR professional returned from leave. She agreed to stay in post until then. 

The Clinic Manager post was advertised that same day. Two days later the claimant was informed that she would not be getting a chair but could have an occupational mat.  This was on the basis that chairs were only provided if it was a health requirement as confirmed via a medical certificate.  This issue continued and there was a call between the claimant and HR.  The claimant stated that the reason the chair was refused was that it did not fit in with the company’s ‘look’.   The HR Professional in their evidence stated that it would be a trip hazard as well as a Covid hazard as it would create an additional touch point.  The Tribunal found that the reason for refusal was aesthetic reasons.  A chair was later purchased albeit without a risk assessment or any assessment by an occupational therapist. 

The claimant had not heard about the new role.  This was later discussed with her line manager who had set out the job specification and everything was agreed except the salary. This led to a negotiation with it being agreed at £13.50 per hour.  However, a couple of weeks later there was still no contract and when requested the claimant received a phone call where the shifts were then discussed. The claimant was upset about this as she felt that it was agreed and that the respondent was reneging on its promise.  

Following this conversation the claimant received an email stating that her last day of notice was the 13th September but she would not be required to work and she would be paid in full for those shifts.  Her access to emails was also terminated.  

This led to a claim for unfair dismissal and disability discrimination. 

Outcome: 

On disability discrimination – the issue was whether the claimant was disabled within the meaning set out in the Disability Discrimination Act 1995.   This largely referred to prolapse as stated by the claimant.  There was a medical report but it stated that there was no leakage at the time of the employment.  Guidance released by the then OFMDFM stated that it would have to be loss of control of the bladder or frequent minor leakage for it to amount to having a substantial impact on day-to-day activities. As a result, the Tribunal found that that element of the definition had not been met. 

On the unfair dismissal, the issue was whether it was a dismissal or a resignation.   The Tribunal found that the email from HR and the instructions to IT and Payroll amounted to an effective termination.  The position was always that the claimant would continue with her employment with the respondent even when she stated she did not want to be Clinic Manager any longer.  As a result, there was no procedure followed in the dismissal and it did not comply with the statutory minimum.  Therefore, the dismissal was automatically unfair.   This led to an award of £22,992.10. 

Practical Guidance for Employers: 

This case demonstrates the importance of being aware of when there is a resignation from employment and then what would amount to a dismissal.  The position here was that the claimant was resigning from her role but moving into a new role based upon her circumstances.  Accordingly, it did not amount to a full resignation from the claimant’s employment and when it was treated as such it meant that she was being dismissed with no statutory minimum procedure being followed.   

NI Tribunal decisions are available on the OITFET website: 
http://www.employmenttribunalsni.co.uk/