PCP: Verbal Instructions Trump Written Job Description

Mon, 26 Nov 2018

Brangwyn v South Warwickshire NHS Foundation Trust [2018] EWCA Civ 2235; [2018] 10 WLUK 205; 11 October 2018.

In the Court of Appeal, Tim Sheppard successfully defended the Claimant’s appeal against the decision below, to refuse his claim of a failure by the Respondent Trust to comply with the duty to make reasonable adjustments.

The Claimant had worked as an occupational therapy technician at the Trust's hospital since 2008. He had a phobia about blood, injections and needles, which was not medically diagnosed until May 2011. In January 2011, the Claimant was informed that he had to attend a meeting on a medical ward. He became ill after the meeting and was signed off work with stress. He lodged a series of grievances and was ultimately dismissed in February 2013.

The Employment Tribunal found that an initial PCP requiring the Claimant to enter the wards had effectively been removed during the grievance process. It rejected the claims of a failure to make reasonable adjustments, disability discrimination and unfair dismissal. The EAT upheld that decision.

The Court of Appeal dismissed the Claimant’s appeal. It was held, amongst other matters, that the main argument put forward as part of the appeal had not been raised below and it would be wrong for the Court to decide the case on a different basis from that which was before the Tribunal.

It was also an argument which would not have succeeded on the facts. A clause in a contract of employment, or a job description listing duties to be carried out by the employee, was capable of being a PCP. As the Tribunal accepted, however, the Claimant had been instructed that whatever the job description might say, he would not be required to go onto the bed areas of medical wards to collect, return patients, or to lift them. The Tribunal was correct to view the interactions between the Trust and the appellant as a whole. The Trust did not, therefore, impose a PCP which required, or would require, the Claimant to do any of those things.

 

Tim Sheppard is a member of the Employment and Planning groups at No5. To view his full profile, please visit: https://www.no5.com/barristers/barrister-details/256-tim-sheppard/

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