Administration assistant with sleep apnoea loses constructive dismissal and disability discrimination claims against NHS Trust
An administration assistant with 14 years' service who resigned claiming constructive dismissal and disability discrimination over sleep apnoea and other conditions had all her claims rejected by the tribunal.
1 min read · Last updated 18 May 2026
Case details
Key facts
- Ms Green was employed as an Administration Assistant from 2007, transferring to the respondent in 2018.
- She had disabilities including sleep apnoea, anxiety/depression, and COPD, known to the respondent.
- She fell asleep at work and her performance deteriorated, leading to capability and sickness absence procedures.
- The respondent did not allow her to work from home, citing support and productivity concerns.
- Ms Green resigned on 18 August 2021, claiming constructive dismissal and discrimination.
- The tribunal found no breach of contract or discrimination, dismissing all claims.
Timeline
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First reports of falling asleep
Colleagues reported Ms Green falling asleep at work; she declined Occupational Health referral.
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Occupational Health referral for fatigue
Referred due to drowsiness; advised to rotate tasks and stay hydrated.
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Employment transferred to respondent
Previous managers informed respondent of issues with falling asleep and hiding work.
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Sick leave due to COPD
Ms Green began long-term sick leave; Occupational Health recommended phased return.
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Return to work on phased basis
Returned after 40% absence; placed on informal sickness monitoring.
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Return to office; new team lead
Mrs Havelock became team lead; audited Ms Green's work and raised concerns.
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Sick leave due to anaemia
Ms Green began absence; later diagnosed with sleep apnoea symptoms.
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Final sickness review meeting
Adjourned; Ms Green agreed to phased return in April.
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Return to work on phased basis
Returned with adjustments; performance monitored via action plan.
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Enforced sick leave discussion
Managers suggested sick leave due to risks; Ms Green disagreed and returned.
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Stage 2 capability meeting
Formal capability process started; action plan extended.
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Sick leave and resignation
Ms Green submitted fit note; resigned on 18 August 2021.
The legal issue
The tribunal had to decide whether the NHS Trust discriminated against the employee due to her disabilities (sleep apnoea, anxiety/depression, COPD), failed to make reasonable adjustments, and constructively dismissed her unfairly.
The outcome
The tribunal dismissed all claims. It found that the respondent's capability and sickness absence procedures were fairly applied and that the employee resigned without a fundamental breach of contract. The respondent had acted reasonably in not allowing home working and in managing her performance.
No compensation was awarded as the claims failed.
Lessons & takeaways
- Constructive dismissal requires a fundamental breach of contract by the employer; simply being unhappy with management actions is not enough.
- Employers can justify actions that disadvantage a disabled employee if they are a proportionate means of achieving a legitimate aim, such as service delivery.
- Long service does not automatically make a dismissal unfair if the employer follows proper procedures and acts reasonably.
- Refusing a request to work from home may be reasonable if the employer has genuine concerns about support and productivity.
A case of capability, not discrimination
This case shows how an employer can manage long-term performance and sickness issues without falling foul of disability discrimination law. The employee, an administration assistant with 14 years' service, had disabilities including sleep apnoea, anxiety/depression, and COPD. She fell asleep at work and her performance declined, leading to capability and sickness absence procedures. She resigned claiming constructive dismissal and discrimination, but the tribunal found the Trust's actions were reasonable.
What the employer did right
The Trust had known about the employee's conditions for years and had made adjustments, including a phased return to work and an action plan. It referred her to Occupational Health and followed its own policies. Crucially, it did not dismiss her; she resigned. The tribunal found no fundamental breach of contract that would justify constructive dismissal. The refusal to allow home working was based on legitimate concerns about supervision and team support, and was not discriminatory.
Why the claims failed
The employee argued that being put on a capability procedure and action plan was unfavourable treatment arising from disability. However, the tribunal accepted that these were proportionate means of achieving legitimate aims: improving staff health, attendance, and performance, and ensuring safe services for children. The criticism from her manager was not unfavourable treatment but reasonable management. The tribunal also rejected her claim that the Trust failed to make reasonable adjustments, as the adjustments requested (home working) were not reasonable in the circumstances.
Key takeaway
This case is a reminder that not every management action that an employee dislikes will amount to discrimination or constructive dismissal. Employers can take steps to address performance and attendance issues, even where disability is a factor, provided they act reasonably and for legitimate business reasons.
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