In McKenzie v University Hospitals of Leicester NHS Trust, an NHS nurse who was dismissed due to the number of days she was off sick, was found by the Employment Tribunal to have been subject to unfair dismissal and disability discrimination.
Having begun employment in 2010, the claimant suffered from two disabilities throughout her time as a Staff Nurse and Deputy Sister with the respondent NHS trust: anxiety/depression and migraines. The claimant would regularly suffer migraine attacks and generally this would lead to her having to take one or two days of sickness absence to recover before returning to work. Between 2010 and her dismissal, the claimant had taken 300 days of absence, with 85 of these absences being taken in the 12 months preceding the dismissal. Whilst the vast majority of these absences were due to her disabilities, this level of absence was 8 times higher than the absence management targets set by the respondent. The levels of absence led to the claimant’s unfair dismissal and disability discrimination in May 2020.
The claimant had been on leave from work due to her anxiety/depression from December 2019 to the start of March 2020. This was in part due to the claimant attempting to cease her medication for the condition all at once and with no medical supervision.
The claimant then needed to take some sickness absence again in April 2020. She explained the April absences by stating that the frequency of migraines was being increased by the PPE that the respondent had supplied for her and that having to wear it over a 12-hour shift meant there were limited opportunities for the claimant to rehydrate. The tribunal agreed that the environment would give limited opportunities for rehydration.
The tribunal found that, in its decision to dismiss the claimant, the respondent had not given enough weight to an occupational health report completed upon the claimant’s return to work in March 2020. This gave a positive prognosis and considered that not only was the single long-term absence due to the adverse effects of medication withdrawal unlikely to be repeated, but that absences for anxiety/depression were much more likely to be reduced due to changes in the claimant’s caring responsibilities at home. The respondent had not followed the suggested plan for a 3-month period of return, despite the claimant’s successful completion of a phased return to contractual hours. In the tribunal’s view, the decision to dismiss in the circumstances was not proportional nor was it a decision that a reasonable employer had open to it. The claimant was therefore successful in claims of unfair dismissal and disability discrimination.
The tribunal also found a failure to make reasonable adjustments: a reasonable adjustment would have been for the respondent to disregard the claimant’s migraine related absences given that they were relatively few in number and short in length. Without this adjustment all of the claimant’s allowed absence had been taken up by disability-related absences, leaving no room for any legitimate, non-disability related illness/absences.
This blog was written by Michael Green, Trainee Solicitor at didlaw.
