The Employment Tribunal has held that an employer’s termination for a substantial sickness absence record still amounted to unfair dismissal. This was because the employer did not act reasonably towards the employee and did not recognise the employee’s disability. A dismissal simply on historic absences rather tendency for future absences could not justify the discriminatory dismissal of the employee.
In this case the employee Mrs Kitching worked as a cleaner for the University Hospitals of Morecambe Bay NHS Foundation Trust. She cleaned an area of the hospital called the Lancaster Suite. From 2019 to June 2023, when she was dismissed, her accrued absence was 406 days in 4 years. Most of her absence wore due to mental health issues. She suffered from anxiety and was bipolar. She asked to work reduced hours and less shifts. She wanted to still work on the Lancaster Suite as she was familiar with the staff and procedures in this area. She told her employer this would help to manage her mental health conditions, but her request was turned down by the employer. The reasoning was that the reduced hour would mean she would have to work two areas of the hospital and that would further increase the stress levels.
The employer’s attendance management policy had triggers when an employee reached a certain level of absence. They also had a policy to support and keep disabled employees. The employer instead decided to apply the attendance management procedure in preference to the policy on supporting disabled employees and decided to dismiss the employee.
The Employment Tribunal found the employee had been unfairly dismissed as the employer’s procedure was unfair and discriminatory based on her disability. The employer had occupational health reports confirming her disability and fit notes from her GP. The employer had failed to recognise and make reasonable adjustments for the employee. The employer had failed to accept she had a disability and to tolerate her higher absence level in line with their disability support policy. The decision to dismiss the employee was directly associated with her mental health. The dismissal was not justified as a proportionate means to achieving a legitimate aim. The employer’s absence procedure was criticised as being backward. They failed to look at the employee current situation and likelihood of future absences but instead chose to look at historical absences.
Employers should take heed of this decision. Its important to consider if your employee is disabled under this Equality Act 2010 and conduct welfare meetings and medical investigations by referring to an Occupational Health service. Any reasonable adjustments recommend by the Occupational Health service should be carefully implemented. Ensure you have HR policies about dealing with absences and support for all employees with disabilities. Follow and implement these policies carefully to avoid disability discrimination claims.
If you need any further help, please do not hesitate to contact our HR/Legal advice line team at 01455 852 028. Quest can help to update your contracts and handbooks and help you to train your staff in HR matters.
