Failure to adjust absence targets leads to successful claim for unfair dismissal
- Date: Friday 22nd July 2022
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A nurse at Leicester NHS Trust who suffered from depression, anxiety and headaches and who was also a primary carer for her grandmother has won a claim for unfair dismissal after the employer did not adjust her absence targets to take account of any issues other than those related to her disabilities.
An increased allowance on her absence target would have been a reasonable adjustment. Such an adjustment would have allowed a level playing field with her colleagues who did not have the similar health needs. Consequently, at tribunal the judge ruled that a level playing field could not be achieved because all the absences allowed were taken up with disability-related issues leaving no room for other legitimate absences.
The background to the case is that the nurse, Ms McKenzie, has worked for the trust since 2010 and had 300 days of absence, mostly related to migraines. She was also the primary carer for her grandmother who had Alzheimer’s. The demands of providing care led to increasing levels of stress and anxiety which, according to an occupational health report in 2017, contributed to an increase in migraine frequency.
Ms McKenzie was issued with a succession of formal warnings as she repeatedly breached absence targets during 2017. She then had a year where her targets were met. The warnings expired but following an episode of long-term sickness she was issued with a final written warning in January 2019.
In April 2019, at a capability meeting, she informed her employer about the challenges of managing her work life, home life and mental health. A further episode of long-term sickness followed, and the trust sought guidance from occupational health. However, the trust did not implement the recommended three-month return to work plan followed by a redeployment.
On returning to work in early 2020, further absences occurred. Ms McKenzie informed the trust that her PPE and their Covid policies, which limited her access to drinking water, were contributing to her migraine frequency.
However, a disciplinary hearing for absence was convened in May 2020 during which she was dismissed. The disciplinary chair expressed doubt that her sickness absences were genuine and stated that the PPE mask was there to protect her. She was dismissed for her sickness record.
However, at tribunal the judge ruled that the dismissal was “at least in part” due to her not achieving her attendance targets because of her sickness record. It concluded that the dismissal was for something “arising from her disabilities.”
Learning for employers
- Any health condition may be considered a disability under the Equality Act if it is long-term and the symptoms cause an effect on the employee’s ability to carry out normal day-to-day activities
- Implement reasonable adjustments for any employee who may have a disability
- Consider the impact of PPE on those with a disability – risk assess if PPE could exacerbate ill health or a disability. Assess the risks of PPE with the individual.
- Review policies to ensure they do not negatively impact on those with a disability, e.g. attendance targets or trigger points
- Seek input from occupational health on reasonable adjustments to attendance targets
- Avoid a dismissal without an up-to-date occupational health report
- Consider the impact of care responsibilities on all aspects of an employee’s health
Source: Gavin Parrott, SSG