A judge has warned that employers must have good reasons for departing from the recommendations of an occupational health report.

A nurse who suffered from migraines she says were made worse by wearing PPE during the pandemic has won her case for unfair dismissal, after a tribunal decided, her employer had failed to follow occupational health advice or make reasonable adjustments for her.

On 29 May 2020, Ms C McKenzie, a deputy sister, was dismissed by the University Hospitals of Leicester NHS Trust because of what the head of nursing described as ‘unacceptable’ sickness absence levels. McKenzie suffered from migraines and anxiety and depression, which Employment Judge Ahmed noted are acknowledged to be disabilities for the purposes of the Employment Act 2010. Caring responsibilities for her grandmother exacerbated her symptoms.

The Leicester tribunal heard that Ms McKenzie suffered regular episodes of migraine, resulting in absences of one or two days at a time. Over the course of her employment, which began in 2010, she had more than 300 days off sick – ‘the vast majority…related to her disabilities’ – of which 85 days were in the 12 months leading up to her dismissal. This level of absence was eight times higher than her employer’s stated absence management target.

Ms McKenzie was issued with written warnings in November 2013 and September 2014, and a further written warning in March 2017. She was referred to occupational health on a number of occasions in 2017. Following a disciplinary hearing in March 2018, the Trust re-issued a written warning. 

Hawkes Health (UK) Limited. Registered company number: SC445091. Achilles First Point (FPAL) Supplier Number: 10055672.