Bus driver with Crohn’s disease who soiled himself because company failed to maintain regular shifts awarded £29k

Claimant was required to work 11-hour days without access to frequent toilet breaks, despite transport firm agreeing to make reasonable adjustments.

has ruled that a bus driver with Crohn's disease soiled himself while working because he had to work 11-hour shifts and was denied frequent access to breaks.

His employer, Midland Red South, failed to make reasonable adjustments to the claimant’s shifts, despite an occupational health report from 2016 making clear recommendations about his working requirements. 

The claimant said he suffered a “huge amount of humiliation” following the events.

The judge agreed to withhold the claimant’s name because of the sensitive details discussed in the tribunal. The claimant was awarded almost £29,000 for injury to feelings.

The claimant had worked as a bus driver at the firm for more than 30 years at the Nuneaton depot. He experiences Crohn's disease and in 2016 attended an occupational health meeting to assess his condition. It determined he had a substantial health issue and a report stated that it was a serious condition.

The occupational health report made three recommendations: that he should have a predictable work pattern with an opportunity to have meals three times a day and an opportunity to take his tablets at the same time, regular toilet breaks, and to not work shifts of more than eight hours.

A break in routine could result in a flare-up of his condition, the report said, resulting in an “unpredictable and urgent need” to go to the toilet.

Following the recommendations, his employer agreed to grant him a fixed working pattern. It said every effort would be made not to change the pattern. However, in cases where it was changed, it said it would ensure that his start, finish and break times would be kept regular.

On 22 February, a meeting was held in which suitable shifts were agreed for the claimant and he was told that appropriate shifts would be implemented “within a couple of weeks”.

However, intermittently between April and June 2022, the claimant was asked to work multiple shifts that were longer than the agreed eight hours, with some lasting up to 11 hours. The claimant in some cases asked to work different shifts, but these requests were declined as he was told that it had to be “fair to other drivers” in its allocation of shifts.

From June, he was then asked to work inappropriate shifts of 11 hours again. He raised a grievance on 4 June but did not receive a response until 5 July.

He received the grievance outcome on 2 August, which determined he had been allocated unsuitable shifts and was instead offered shifts that met his requirements. However, these shifts were not implemented until mid-August.

Consequently, the tribunal determined: “We find that the claimant did soil himself as a result of his working unsuitable shifts. The claimant gave evidence to this effect, stating that he had ‘shit himself’ and that his attempts to work the unsuitable shifts resulted in him soiling himself.”

However, his employer denied that he ever soiled himself and its witnesses claimed that no incident of this nature was ever raised with them by the claimant.

The tribunal sided with the claimant on this matter, accepting his claims that “he found it difficult and embarrassing to discuss his condition”, and the tribunal said “it is therefore unsurprising that he chose not to raise these incidents with his supervisor”.

Additionally, the claimant said he found the process of having to continually ask for adjustments “exasperating” and that he felt a “huge amount of humiliation” at having to repeatedly make requests.

Employment judge Routley acknowledged that Midland Red South did not act out of malice, but that it had that “prohibited effect”.

“We have considered the circumstances of the case, in that the unwanted conduct occurred against a backdrop of repeated and ongoing requests by the claimant to have his reasonable adjustments implemented, dating back a number of years.”

They said the claimant was dealing with a “chronic and unpleasant condition that took a considerable amount of effort to manage, and the impact this had on his mental wellbeing”.

“We appreciate that the claimant’s requirements for staff can change and that it needs to be able to operate its business with some degree of flexibility. However, we find that in the event that the respondent needed to change the claimant’s shifts, he should have been assigned an alternative shift that met the three criteria [of the occupational health report],” said Routley.

“This would have alleviated the disadvantage suffered by the claimant, in that he would not then have soiled himself at work.”

They also noted that, as only 10 drivers at the depot required adjustments, management could have taken responsibility for ensuring that the shifts allocated to these 10 drivers met their requirements. 

Consequently, he was awarded £25,000 for injury to feelings, plus £3,819.18 interest.

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