Employer unfairly counted disability-related absences when dismissing
29 June 2022
Despite a nurse’s extremely high level of absence, an NHS Trust still acted unfairly and discriminated against her when it dismissed her following a series of warnings, an Employment Tribunal recently concluded.
The case of McKenzie -v- University Hospitals of Leicester NHS Trust heard that Ms McKenzie suffered from migraines as well as depression and anxiety, and as a result the employer accepted that this met the definition of a disability in the Equality Act 2010. She was therefore protected against disability discrimination and her employer had a duty to make reasonable adjustments.
In addition to her own health challenges, Ms McKenzie also had caring responsibilities for her elderly grandmother who suffered from dementia. This resulted in her needing to take time off work. The stress of the caring responsibilities also caused her health to deteriorate.
A first written warning was issued to Ms McKenzie in November 2013 for breaching the Trust’s sickness absence targets as set out in its policy. She then received a further warning in September 2014 but met her target in 2015 meaning that the warnings expired.
Her absence levels then deteriorated again, and she received a written warning in March 2017. She then had a period of long-term sickness absence from September 2018 to January 2019 and was given a final written warning. By this point Ms McKenzie’s grandmother had been diagnosed with inoperable cancer and had severe mobility problems. Ms McKenzie was regularly suffering from migraines which resulted in absences lasting one or two days, and she was struggling to find medication to manage her condition.
From December 2019 to March 2020 Ms McKenzie had a further period of long-term sickness absence for anxiety and depression. Following her return to work, she had two more absences in March and April. One of these she said was for Covid and therefore should not have counted, and the other was because the PPE she had to wear due to the pandemic had contributed to a migraine (plus, she was no longer allowed to carry a water bottle with her due to Covid restrictions, which had caused her to become dehydrated and increased the risk of migraines).
The Trust invited her to a meeting in May 2020. By this point Ms McKenzie had taken a total of almost 300 days of absence since her employment began, and 85 of those days were during the preceding 12 months. Her absence level was 8 times the target in the Trust’s policy.
The Trust took the decision to terminate Ms McKenzie’s employment. She appealed against the decision, but was unsuccessful, and brought claims to the Employment Tribunal for unfair dismissal and disability discrimination.
The Tribunal’s decision
The Employment Tribunal considered all the evidence, including the medical advice that had been taken by the Trust shortly before the May 2020 meeting. This confirmed that Ms McKenzie’s future absence would be likely to reduce. The Tribunal felt that the Trust had not paid enough attention to this and had focused too much on her past record. The Trust had also failed to consider the possibility of redeployment for Ms McKenzie, despite this being mentioned in the medical report. They upheld Ms McKenzie’s claims and have ordered a further hearing to determine compensation.
Another key issue in the case in terms of reasonable adjustments was the way the Trust had applied its policy, i.e. counting disability-related absences towards the absence targets, and the fact that this meant that there was no allowance for Ms McKenzie to have other absences (such as those not relating to her disabilities).
The Employment Tribunal said:
“The purpose of reasonable adjustments is to ensure a level playing field, but that cannot be achieved if all of the absences allowed are taken up with disability-related matters, leaving no room for any other legitimate absence. In this case given the targets and triggers Ms McKenzie could not afford to be ill for any other legitimate reason.”
Key lessons for employers
What this decision illustrates is that when it comes to managing employee absence, employers should be wary of rigidly sticking to policies and targets rather than judging situations on an individual level. While one can easily understand the inconvenience that such a high level of absence can cause to colleagues, there is still a need for employers to ensure that a fair process is followed and that alternatives such as redeployment are given consideration.
If you are an employer dealing with issues around sickness absences, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].