In May 2020 a senior nurse was dismissed for her sickness absence record caused by illness covered under the equality act 2010, which included unmanageable migraines, anxiety, and depression.
Caroline McKenzie vs University Hospitals of Leicester NHS Trust tribunal began back in March 2022 and the judge found that the employer failed to adjust Ms McKenzie’s absence targets to account for both her disabilities and other legitimate reasons and therefore the tribunal outcome was confirmed that Ms McKenzie was unfairly dismissed.
Ms McKenzie started her employment in 2010 and since then had taken a total of almost 300 days of absence, all relating to migraines which no medicine was able to cure, anxiety, and depression. Ms McKenzie also became the main carer of her grandmother who was diagnosed with Alzheimer’s and over time this took its toll on her health where she suffered from stress and anxiety.
Ms Mckenzie was subjected to absence disciplinary procedures throughout her employment but received a final written warning following a period of long-term sickness in January 2019.
Later that year, Ms Mckenzie had a further period of long-term sick leave from December 2019 to March 2020 for anxiety and depression. A report from occupational health recommended Ms McKenzie had a three-months return to work, and if unsuccessful, they should consider redeployment. The tribunal noted that this was not how the trust acted.
Ms Mckenzie returned to work and had a further absence to which she believed was Covid as she had undertaken an antibody test showing antibodies for the virus.
In May 2020, Ms McKenzie attended a sickness absence hearing in which she was dismissed. Her dismissal letter, the chair of the absence meeting questioned whether recent absences had really been due to migraines and sinusitis.
The outcome letter, the chair wrote “Having considered all the information presented, I have concluded that your sickness absence levels continue to be unacceptable and are impacting the ward and your team causing difficulties for your area. I therefore advised you that the Trust was left with no alternative but to serve you notice to terminate your employment on the grounds of ill-health capability.”
The Judge summarised by saying “Put in simple terms, the claimant had disabilities which caused her to be absent from work and for which she was ultimately dismissed.” And “We are therefore satisfied that the reason for her dismissal was ‘for something arising’ from her disabilities,”
The compensation will be decided soon.
Dismissing employees for reasons relating to sickness absence can be tricky.
The HRX can support businesses through cases like these, please contact us if you find yourself in a position where you have an employee with a substantial absence record.