A paramedic who fell out the back of an ambulance and suffered a long-term injury was unfairly dismissed, an employment tribunal in Croydon ruled.
In March 2016, Anthony Muller, who was employed by London Ambulance Service NHS Trust, did not return to work after falling out of an ambulance because his injured shoulder was slow to heal. Following a capability hearing, Muller was dismissed 11 months later on the 28 February 2017.
Three months after the accident, an occupational health review concluded it would be difficult to predict a date for his permanent return to work, but that Muller should be able to attend work on a regular basis following a proper diagnosis.
During a second health review in September 2016, Muller was informed that he would have to attend a hearing with a director with the potential of being dismissed.
The group station manager, Sandra Roberts, discussed a temporary change of duties with Muller, however, he was later told that alternative work opportunities were only available to him if he was going to be off work for less than one month and had a definite return date.
According to the trust’s official ‘managing attendance’ policy, a dismissal should only be considered when “there is little likelihood the member of staff being able to return to work in any capacity within the trust and other options have been exhausted.” By failing to offer Muller a temporary reassignment during the early stage of the meeting and referring Muller for dismissal, the tribunal ruled that the trust failed to follow an essential aspect of their policy.
There is another trust policy that temporarily reassigns pregnant paramedics to the Clinical Hub until they can return to their front-line duties, and so when a vacancy became available within the Clinical Hub in December 2016, Muller sought to take advantage of the policy and applied. The trust argued that Muller did not meet one of the essential criteria for the job role – to work two days a week on the front line – and therefore did not shortlist him for the position. The tribunal ruled that the trust made no adjustment for Muller’s prolonger injury which was considered a disability at the point of his application to the Clinical Hub.
Employment Judge Fowell concluded:
“Had he been reassigned to the Clinical Hub and treatment options explored, he would have been able to keep his job as a paramedic.
“Given his17 years’ service, and given that the overwhelming predominance of the NHS as an employer in the health sector in the UK, he would in our view almost inevitably have remained in their employment today.”
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