University Hospitals of Morecambe Bay NHS Foundation Trust failed to recognise the employee had a disability under the Equality Act 2010 and consequently did not make reasonable adjustments.
The Manchester Employment Tribunal has ruled that there was no chance that cleaner Zoe Kitching, who was sacked by University Hospitals of Morecambe Bay NHS Foundation Trust on 27 June 2023 for historic absences that amounted to taking more than 400 sick days in four years, would have been fairly dismissed in any event.
The panel, headed by Employment Judge Childe, found that her complaint of unfavourable treatment because of something arising in consequence of disability was well founded and succeeded.
It described the NHS Foundation Trust’s decision to deny that Kitching was disabled as ‘irrational and wrong’ because her employer had been presented with clear medical evidence (multiple occupational health reports) that showed she did have a disability within the meaning of the Equality Act 2010.
Significantly, the tribunal also found the respondent chose not to commission an occupational health report shortly before Kitching’s dismissal, which it states would have provided ‘clear information’ that she was a disabled person under this legislation.
As a result of this action, the NHS Foundation Trust failed to adhere to its own Support and Retention of Disabled Colleagues policy, which required that reasonable adjustments be offered to manage sickness absence that relates to a disability.
This policy states that adjustments should be offered to support the individual and that the process should ‘acknowledge that for some disabilities it is reasonable to expect a higher level of absence, or to support a period of extended absence.’
All of this should be considered before the employer starts any formal absence management procedures.
In her evidence to the tribunal, Kitching said that around 85% of her absence related to her mental health conditions and that insufficient account was taken of the causes of her absences and/or offering alternatives to dismissal. She also said her employer did not properly consider reasonable adjustments such as reducing her shift hours and/or days.
TRIBUNAL CASE
The tribunal panel heard that Kitching started to work as a cleaner at the NHS Foundation Trust on 3 September 2018 and during the following year she was absent from work for 70 days covering six separate periods. The reasons for her absence varied but included suffering from anxiety and depression. In one case, she took six days off after sustaining an injury caused by domestic abuse.
In line with the NHS Foundation Trust’s absence policy, Kitching was invited to an ‘extended return to work interview’ on 19 August 2019 with Patient Environment Site Services Manager Ruth Bradburn, who was also her line manager, to set an improvement target for her attendance. Invitations are sent to staff members that exceed three episodes of absence in a rolling six-month period or two weeks (single days or cumulative) in a rolling 12-month period.
Following this first meeting, Bradburn sent the claimant a letter in which she recorded that she was aware that Kitching had been diagnosed with bipolar disorder. She also acknowledged the role that anxiety had played in the cleaner’s absence.
Later that month, the NHS Foundation Trust received an occupational health report that stated that Kitching had been diagnosed with complex mental health issues and had a disability under the Equality Act 2010. A second occupational health report dated from the previous day echoed these conclusions.
THE NHS FOUNDATION TRUST FAILED TO ADHERE TO ITS OWN SUPPORT AND RETENTION OF DISABLED COLLEAGUES POLICY, WHICH REQUIRED THAT REASONABLE ADJUSTMENTS BE OFFERED TO MANAGE SICKNESS ABSENCE THAT RELATES TO A DISABILITY
The tribunal heard that the claimant’s absence level had breached targets for that year. Consequently, Kitching was placed on what is known as a ‘first letter of concern’ on 26 November 2019 under the NHS Foundation Trust’s absence policy.
The claimant’s absence continued into the following year. Between 1 January 2020 and 9 January 2021, Kitching was absent for another five periods due to anxiety, depression or stress. This amounted to 182 days in total.
Although the NHS Foundation Trust’s occupational health provider supplied a report on 23 September 2020 that found she had a disability, the tribunal heard that its conclusion was contradicted by another report provided to Kitching’s employer on 12 January 2021. This stated that she was not a disabled person within the meaning of the Equality Act 2010.
A month after this second report, Bradburn and Kitching had a second meeting under the NHS Foundation Trust’s absence policy during which the claimant was given a ‘final letter of concern’. She was also set new ‘trigger points’.
During the meeting Kitching had requested reducing her hours. Bradburn’s response was that if she agreed to this request, the claimant would not be able to continue working on the Lancaster Suite where she’d worked since joining the NHS Foundation Trust in September 2018.
When Bradburn gave evidence to the tribunal, she explained that ‘logistically, it doesn’t work’. However, she also told the panel that it would have been possible to trial an arrangement whereby Kitching worked fewer hours or part time but did not pursue this option.
The tribunal heard that Kitching ‘reluctantly’ continued to maintain her current shift pattern in the Lancaster Suite, fearing the alternative would induce more anxiety. However, she continued to suffer from anxiety and stress and took 28 days off between 10 January and 7 December 2021.
THE EMPLOYER IN THIS CASE MADE SOME FATAL ERRORS IN ITS PROCESSES
That July, the claimant met with her line manager who extended the final letter of concern, issued on 9 February 2021. Then, on 16 September, during an attendance hearing with the Divisional Manager Facilities David Passant, there was a further extension.
The tribunal heard that Kitching continued to have periods of absence between January 2022 and 6 February 2023. These amounted to 72 days in total. The reasons for these absence periods varied but the most significant was a breakdown, which resulted in Kitching taking 53 days off.
Shortly after returning, the claimant attended an extended absence meeting with Bradburn on 14 September 2022 during which she was given a first letter of concern under the absence policy, which set a short-term target of zero sickness for the next three months.
She was unable to meet this target, however, taking seven days off from 1 November due to Covid and one day (23 November) because of stress. Kitching also had another 42 days off between 27 December 2022 and 6 February 2023. According to her fit note, the reasons for the absence were mixed anxiety and depressive disorder.
The claimant met with her line manager on 22 February 2023 and was issued with a final letter of concern. The tribunal heard that Bradburn set another short-term target of zero sickness absence for three months but made an exception of one episode that related to the claimant’s anxiety totalling no more than five days. The line manager also set out a long-term target for Kitching to remain within the targets set out in the absence policy for nine months.
However, the claimant was unable to meet this target. She took one day off on 13 April due to anxiety. When she developed a chest infection, she took eight days off in early May and then, on 17 June, was off work for another day due to anxiety.
DISABILITY FAILURE
What is significant is that, in evidence provided to the tribunal, Bradburn failed to identify any of Kitching’s absences between 2019 and 2023 as being related to her disability.