Ms E Kalhor v The Hospital of St John and St Elizabeth

14th February 2023

Ms E Kalhor v The Hospital of St John and St Elizabeth

Ms E Kalhor v The Hospital of St John and St Elizabeth – the costly consequences for employers of failing to follow recommendations from occupational health professionals


Ms Kalhor was an employee at the private St John and St Elizabeth hospital from June 2016. She resigned from her position in April 2020 citing the reasons for her resignation being the persistent failure of the hospital to consider making adjustments recommended by occupational health, harassing behaviour and the hospital’s failure to investigate or respond to her repeated grievances.

In February 2018, Ms Kalhor started to suffer from severe back pain, so the hospital decided to refer her to occupational health.

The first occupational health report suggested several recommendations that might help Ms Kalhor at work. These included not lifting heavy objects and rotating her tasks and duties, amongst other things. The report was never sent to Ms Kalhor and it was not referred to the management team. Further occupational health reports were then produced in December 2018, June 2019 and November 2019 which made additional recommendations. These reports confirmed that she was suffering from a chronic musculo-skeletal condition for which she would need to take time off work. It also referred to the uneven floors in the hospital which she felt had aggravated her condition and which Ms Kalhor had previously complained about. Such complaint was never resolved. A phased return was recommended along with frequent rest breaks and time off for assessments and treatment, amongst other things.  Again, these reports were never discussed with Ms Kalhor and the recommendations were continually ignored by the hospital.

On 12 December 2018, whilst off sick, Ms Kalhor was informed she was required to attend a disciplinary investigation meeting to address allegations of misconduct. Such allegations included that Ms Kalhor left work without authorisation despite agreeing to cancel her appointment and that she had breached the code of conduct by acting outside of her remit by commissioning a bank worker to cover her absence.

Ms Kalhor raised several grievances about the above points, which were again ignored.

Upon her return to work, she was told by her manager that “we don’t do sick leave here” and she was then demoted in January 2020.

As a result, she resigned from her role. She brought claims of direct disability discrimination, discrimination arising from her disability, failure to make reasonable adjustments, disability-related harassment, and constructive dismissal.

Employment Tribunal Decision

Ms Kalhor was successful in part for her constructive dismissal claim and all of her disability discrimination claims, other than her claim for direct disability discrimination. The Tribunal found that Ms Kalhor was not directly discriminated against because a non-disabled employee with no material differences in circumstances to that of Ms Kalhor would have been treated in the same way.  In so far as the successful discrimination claims were concerned;

Discrimination arising from disability

The Employment Tribunal found that the requirement for Ms Kalhor to take time off work and to have adjustments to her working life arose in consequence of her disability and that she was treated unfavourable because of these requirements.

When deciding this matter, the Employment Tribunal found that there were several reasons which caused the hospital to treat Ms Kalhor the way they did. There can be a range of reasons why an employer treats an employee in a certain way. However, it is the reason which has a significant influence on the decision to treat the employee unfavourable which is the deciding factor. The Employment Tribunal found that the reason which had a substantial influence on the decision to demote her was because she needed adjustments and not because the relationship between her and her line manager had broken down. This was discriminatory.

The Employment Tribunal found that the predominant reason why the reports were ignored or inadequately addressed was because Ms Kalhor required adjustments for her role because of her disability. The refusal of Ms Kalhor’s requests to take time off to see her GP, her request for adjustments to her working time, the commencement of the disciplinary investigation and the comments made towards her was clearly treatment linked to her requiring time-off for her disability.

There is a defence to such claim if the hospital can argue that they had a legitimate aim to achieve and that they used proportionate means to achieve this aim. The hospital argued that undertaking a disciplinary investigation against Ms Kalhor was a proportionate means to ensure patient safety, appropriate staffing levels, costs and to ensure unauthorised absences were managed in accordance with their policies. The Employment Tribunal found that this was not a proportionate means given that Ms Kalhor had been ill and because her line manager had been aware that she already had authorised cover for when she needed to leave work early.


For similar reasons, the Employment Tribunal found that Ms Kalhor was subject to disability-related harassment in that she was subjected to unwanted conduct relating to her disability which had the effect of creating a hostile working environment for her. It concluded that it was reasonable for this conduct to have such effect.

Failure to make reasonable adjustments

The Employment Tribunal found that the hospital continued to make Ms Kalhor work her full hours and did not fix the cracked floor despite occupational health recommending otherwise. It was found that the adjustments recommended were reasonable and could have been put in place by the hospital.

Unfair Constructive Dismissal

The Employment Tribunal found that the treatment towards Ms Kalhor seriously damaged the working relationship. It was found that Ms Kalhor resigned in response to such treatment and therefore her constructive dismissal claim was successful.

The Employment Tribunal awarded her a total of £74,683.42. This is broken down as follows:

  • Damages for unfair dismissal: £2,708.56
  • Damages for injury to feelings following breached of the Equality Act 2010: £10,000
  • Personal Injury: £10,000 for physical injury and £7,500 for psychiatric injury
  • Special damages including loss of earnings £23,644.93
  • ACAS Uplift for breaches of the ACAS Code on disciplinary and grievance procedures: £ £12,786.23
  • Interest: £8,043.70

What should businesses consider?

This case is a reminder that when an employee is on a long-term period of sickness absence or suffering from a long term (or likely to be long term) condition, medical evidence will be important to understand the condition and assess what adjustments (if any) should be made. The recommendations of the report must be:

  • carefully considered; and
  • implemented as appropriate following consultation with the employee.

Cases should be considered on their own merits and specific legal advice should be taken on each set of facts. If you require advice in relation to any of the above points, please contact one of our Employment experts on 0161 832 3434 or email

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