Background:

The claimant was employed as a Band 5 Staff Nurse from March 2017 until her resignation in July 2020.  She worked in an orthopaedics ward before and during the start of the Covid-19 pandemic.

In March 2020, the respondent sent an email to staff asking about medical health conditions.  The claimant respondent citing that she had asthma and outlined the medications she was taking.  The purpose of the email was to see who was ‘high risk’ and may be redeployed or required to self-isolate.  Indeed, the guidance document stated ‘staff [who] have a positive response to any of the questions on the risk assessment will inform you directly.  Such staff should instead be considered for alternative work area(s)’.

The claimant’s ward was being converted to a Covid ward.  The claimant’s line manager confirmed that once it was converted it was ‘highly likely’ that the claimant would have been transferred out of it.  However, the claimant’s line manager contracted Covid-19 and was off for 8 months having suffered from long-Covid.  In light of the repurposing of the ward, there was no new risk assessment or guidance. It was not for the claimant to suggest that it should be redone and she did not know about it being converted until it was too late as she remained allocated.  The claimant did get a GP text stating that she was advised to stay at home for 12 weeks.  However, it was ignored in favour of the claimant remaining on duty.  This was because it was a ‘text’ rather than a letter.

The issues remained ongoing until the claimant’s last shift on 16th April following which she started to shield.  She resigned on 2nd June 2020.   The claimant later raised a grievance relating to the failure to make reasonable adjustments and harassment.

Outcome:

The unanimous decision of the Tribunal was that the respondent failed in its duty to make reasonable adjustments.  The respondent was aware of the claimant’s disability and it was also aware of the guidance from the claimant’s GP yet still did not make a decision to redeploy the claimant away from the ward.  As it had been converted to a Covid-19 ward this put the claimant at heightened risk.

The point relating to harassment also succeeded.  This was on the basis of a member of the respondent stating to the claimant that they know she ‘goes out for cigs’ and that she needs to step up.   The comment was unwanted and it violated the dignity of the claimant thus creating a hostile environment.  The point being made that if she could smoke cigarettes she could take the risk. An award of £5,000 for injury to feelings was made by the Tribunal.

Practical Guidance for Employers:

The Tribunal made an interesting observation, especially bearing in mind the healthcare setting of the respondent, in that the Covid-19 pandemic should be remembered as it was at the time rather than through the gaze three years later.  In 2020 there was ‘chaos’ within the health service and that has to be taken into account.  Despite that it did not mean the respondent could avoid its obligations to disabled staff members.  Therefore, the claimant disclosing her asthma and her risk of Covid-19 ought to have led to an adjustment such as redeployment.  As this did not happen, the respondent was liable.

You can view the full case here: https://www.gov.uk/employment-tribunal-decisions/ms-c-oboyle-v-st-helens-and-knowsley-teaching-hospitals-nhs-trust-2413495-slash-2020