In the case of Ms M C v Hazelwell Care Home Ltd the dismissal of a care home worker with fibromyalgia, due to her inability to work 12-hour shifts, amounted to unfavourable treatment, an employment tribunal has ruled.
Ms MC, a senior care assistant at Hazelwell Care Home on the Wirral, was absent from work on sick leave for 60% of her employment period, totalling 183 days between May 2021 and March 2022, due to her disability which causes widespread pain.
The conflict with her employer began when, after her shifts were reduced in August 2021 from 12-hour shifts totalling 40 hours a week to six-hour shifts totalling 30 hours a week, she was asked to return to the 12-hour shifts following a period of sickness absence. The dispute centred on whether the reduction in hours was temporary or permanent. The Liverpool tribunal concluded it was a permanent change. Despite several meetings in November 2021 discussing her shifts and her inability to perform them, she was dismissed by the care home.
The care home argued that the dismissal was a “proportionate means of achieving a legitimate aim” to maintain service levels for residents, citing operational requirements. However, the tribunal was “not convinced that the dismissal helped to achieve that aim,” deeming it premature and suggesting there were other, more proportionate options.
The judge noted that the dismissal was due to difficulties in Ceriaco performing her duties, her shift length, and her sickness record. While the care home’s aim to maintain service levels was legitimate, the judge found that the respondent did not fully explore more proportionate options before dismissing her.
The tribunal suggested that the care home could have reassured Ceriaco about the possibility of six-hour shifts and a phased return to work. This approach might have allowed her to return to work satisfactorily or at least demonstrated that the care home had exhausted other options before considering dismissal.
Ultimately, the tribunal ruled that the dismissal was premature and that there were more proportionate alternatives that the care home should have considered.
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