An employment tribunal has ruled that a former nurse was unfairly dismissed and subjected to disability discrimination, after her sickness absence record for depression and anxiety was deemed ‘unacceptable’ by her employer.
Ms CC McKenzie, who worked at University Hospitals of Leicester NHS Trust since 2010, had taken around 300 days of sickness absence during her progression to Deputy Sister of the Trust.
This case highlights the importance of not only following the Equality Act 2010 in employment policies, but also implementing reasonable adjustments to accommodate for any disabilities.
Ultimately, the tribunal ruled that the Trust had failed to fulfil both of these duties.
Case – Ms CC McKenzie v University Hospitals of Leicester NHS Trust
Outside of work, Ms McKenzie was the main carer for her grandmother, who suffered from Alzheimer’s. Over time, this additional burden was detrimental to the health of McKenzie, leading to her experiencing severe migraines on a day-to-day basis.
McKenzie eventually received medication for these migraines in 2018 after being diagnosed with stress and anxiety, however, she had already received three written absence warnings from her employer prior to this.
Her condition deteriorated further during a long-term period of sickness absence in 2019, with management reacting to this by agreeing a flexible working arrangement with McKenzie.
Further guidance from occupational health also suggested that although McKenzie’s absence record was likely to improve in future, her position within the Trust should be downgraded and a gradual return to her duties should be allowed.
Despite this, McKenzie was dismissed following a sickness absence meeting 2020, with an outcome letter which questioned whether her inability to meet absence targets was actually due to migraines.
In response, McKenzie brought an employment tribunal claim for unfair dismissal and disability discrimination.
The Equality Act 2010 and reasonable adjustments
Under the Equality Act 2010, a person is disabled if they have a mental or physical impairment, which has a substantial and long-term adverse impact on their ability to undertake normal day-to-day activities.
It should be noted that ‘substantial’ means more than minor or trivial, and ‘long term’ applies to anything lasting for 12 months or longer.
The Act serves to protect employees from various types of direct and indirect discrimination, including discrimination which arises from disability and a failure to make reasonable adjustments.
Decision – Unfair dismissal and disability discrimination
After hearing McKenzie’s case, the tribunal ruled that she had been unfairly dismissed by the Trust, as they ignored guidance from occupational health and decided to dismiss McKenzie based on her previous absence record.
The judge also stated that the possibility of redeployment was ignored by the Trust, while failing to make reasonable adjustments to the absence targets in place for all staff.
Instead, the Trust could have ensured that disability-related absences were excluded from these targets, as their existing approach meant that McKenzie was left with no room for any other legitimate absence.
What can employers learn from this?
Despite the challenges that prolonged absence can pose to businesses, it is crucial that a fair process is always followed, with the employer exploring options such as redeployment where possible.
While employers should have a sickness absence policy in place, it is important that they continue to manage situations individually.
If the Trust had approached McKenzie’s situation in this way, they could have implemented reasonable adjustments and most likely avoided a claim.
If you’re looking to enhance your understanding of absence management and ensure compliance with employment law, it may be worth considering our Attendance Management training course, which covers all the stages involved in a fair procedure.
For tailored guidance on issues relating to absence or discrimination in your organisation, call us today on 0345 076 2288, or complete the form below.