A former prison officer has been awarded £445,000 after a tribunal found he was unfairly dismissed because he could not carry keys due to security concerns.
Employment judge Aspden ruled that the Ministry of Justice failed to comply with its duty to make reasonable adjustments to allow time for the right dose of medication for Mr Mullinger’s epilepsy, and his dismissal was discrimination arising from his disability.
Management at HMP Holme House, a category B prison in Stockton-on-Tees, held concerns that if Mullinger had a seizure while on duty, a prisoner could take his keys, posing a security risk.
Mullinger began working at Holme House in March 2019 as Band 3 prison officer. From February 2020 to June 2021, he had occasional short-term sickness due to a musculoskeletal issue with his feet. Following a formal diagnosis, occupational health referrals in August and November 2021 assessed him fit for work. In 2022, his foot condition led to periods of restrictive duties, and his occasional sickness absence continued.
Following a seizure while on holiday in November 2022, Mullinger was formally diagnosed with epilepsy on 11 January 2023 and told his manager, Ms Davies, about his condition. He was placed on restricted duties from 16 January, working as Band 2 operational support.
An occupational health report on 26 January viewed Mullinger fit for work with adjustments, suggesting he should be seizure-free for six months before returning to full duties.
On 14 March, Mullinger had a formal attendance review meeting with Davies and the prison’s governing governor, Mr Ormerod. He was accompanied by his union rep, Mr Storey.
Ormerod said the meeting was to consider his likely fitness to return to full duties and, if not, what action would be necessary to resolve the situation. He said: “If you are not able to return to full duties, I need to consider if we as a business can support the absence and if there is the potential option for a re-grade, or if you should be dismissed from service.”
He referred to concerns, including the claimant not being able to carry keys and work alone. The claimant and his rep said he could take measures to prevent a seizure coming on, as reflected in the OH report. There were vacancies in admin Band 3, but there was no discussion about what those jobs entailed or the claimant’s ability to perform them.
When Ormerod raised Mullinger’s previous absences, the claimant, Storey and Davies said his foot problem was now resolved. In response, Ormerod referred to other absences, including the recent absences for migraines, which were due to his epilepsy.
Ormerod adjourned to speak to someone in HR and returned to tell the claimant he would be ending his employment.
Mullinger told the tribunal that Ormerod told him what he could not do, rather than it being a discussion. The tribunal found that Ormerod did not consult with Mullinger “in any meaningful sense about the possible options that were open to him or that he was contemplating”.
Mullinger’s dismissal, with notice, was confirmed by letter the same day. Ormerod’s letter referred to concerns about lone working and his inability to carry keys. It also stated concerns over the sickness absences the claimant had had. Mullinger appealed, but this was dismissed in another meeting lasting no more than 30 minutes.
The tribunal judgment said: “We find that redeploying the claimant to an admin role was an adjustment that the respondent could have made… instead of dismissing him, and it was reasonable for the respondent to have to take that step and not dismiss the claimant. Its failure to do so means there was a failure to comply with the duty to make reasonable adjustments.”
It added: “The respondent knew from the OH reports obtained that the cause of the claimant’s seizure was known to be epilepsy, he was receiving appropriate treatment in the form of medication, the medication was expected to resolve the claimant’s susceptibility to seizures, and it was expected to be just a matter of time before the claimant reached that point.”
The judge found that the Ministry of Justice did not show why it could not have accommodated the claimant on medical suspension or sick leave, “instead of dismissing him at that time while seeking clarity as to when his medical condition was likely to be settled”.
Mullinger’s claims for failure to provide reasonable adjustments, discrimination arising from disability and unfair dismissal all succeeded.
The employment tribunal ordered the Ministry of Justice to pay Mullinger £444,960. This comprised a basic award, loss of past and future earnings and pension, interest and grossing up.
