£15,000 awarded to employee who made repeated errors

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Denise Regan worked as an administrator for the Kent Community Health NHS Foundation Trust from October, 2012. In November, 2015, Jane Kirby, a manager at the Trust, was told that Denise had made some errors including sending a confidential report about one patient to another patient which was a serious breach of confidentiality and procedure. Jane wrote to her about her concerns regarding her attention to detail and inaccuracy having decided to deal with the matter as a capability issue.

Denise was requested to attend a capability meeting on 27th January 2016. Earlier that month, Denise had been informed that she might have cataracts and told Jane. Nothing was done by the Trust to help Denise at that point.

A performance improvement plan was put in place following the meeting on 27th January 2016 with weekly monitoring of Denise’s performance and a final review arranged for 4th April, 2016. Denise was told that if there was insufficient improvement in her performance, then formal action could result including possible dismissal.

Denise received a formal diagnosis of cataracts in both eyes on 23rd February, 2016. She told Jane of this on 24th February, 2016 and that she considered that her visual impairment could have been the reason she had made so many errors. An occupational health assessment was arranged which confirmed that she had temporary visual impairment and should be given support. Once she had received surgery for the cataracts, it was anticipated that she would make a quick recovery.

Jane noted at the final capability meeting that Denise had continued to make mistakes. Denise said that she considered the occupational health advice had been inadequate and that the capability process should have been halted until after her surgery. Denise was moved to another role but this was subsequently terminated on 1st August, 2016.

She made a claim in the Employment Tribunal who found that despite knowing of Denise’s visual impairment, the NHS Trust had insisted on improvements being made that were unrealistic and failed to consider what support Denise could have been offered. The Trust had also not considered whether there was an alternative role for her which did not involve computer work until she had her surgery and had not obtained clear medical advice and detailed guidance.

Denise was found to have been unfairly dismissed and was awarded £15,039.

Employers should always seek good medical advice on a situation like this and not make any assumptions about an employee’s condition, and consider what support could be given such as reducing the performance targets, taking away certain parts of the role that may be difficult for the employee in the circumstances and thinking about any other forms of support that could be provided.

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