In May 2020 an NHS nurse from University Hospitals Leicester NHS Trust lost her job after taking too many sick days for migraines, anxiety and depression.  The Employment Tribunal has now found that Ms McKenzie, a deputy sister, was discriminated against and unfairly dismissed.

In the 12 months prior to her absence management hearing the employee had taken 85 working days off sick. Migraines suffered were claimed to have been exacerbated by tight-fitting personal protective equipment (PPE) she had to wear during the height of the Covid pandemic and having limited opportunity to drink water during her shifts because of the PPE and the pressure the NHS was under although the limited opportunity to access to water was disputed by the NHS.

With a range of warnings from November 2013 – March 2017 the claimant received a final written warning for absence in 2018. After an absence March 2019 – March 2020 Ms McKenzie attended an occupational health physician who recommended a phased return to work and suggested that if she was not successful after three months, then a temporary redeployment to a lower banded role would be the best way forward while she treated her psychological issues. After two further absences, she was invited to a sickness absence hearing (May 2020), which resulted in her dismissal. Her appeal against the decision was dismissed.

The dismissal letter said: “It is clear that you have been given the necessary support throughout your absences and that in some cases, management have gone above and beyond to help you maintain your attendance at work. Despite this level of support your absences have consistently fallen below the trust’s targets and this is not sustainable moving forward.”

The Tribunal ruled that “it would have been reasonable in the circumstances to discount the claimant’s migraine-related absences in their entirety given that they were relatively few in number and of fairly short length in terms of absence” – Employment Judge Ahmed.

McKenzie claimed absences relating to her migraines and mental health, amounted to disabilities under the Equality Act 2010, and that dismissing her because of these was discriminatory.

University Hospitals Leicester NHS Trust argued that her dismissal was legitimate and proportionate because it needed to manage staff absences in order to maintain an appropriate level of service. This reasoning was rejected by the tribunal because it felt that at the time of her dismissal the prognosis for her mental health was “optimistic”, that she had successfully completed a phased return to work fulfilling her contracted hours, and that the trust had no medical basis for concluding she was likely to take more time off for her mental health.

By failing to consider redeploying McKenzie to a role with less responsibility as an alternative to dismissal, the tribunal also noted that the trust had failed to act in line with the occupational health report’s recommendations.

It added that a reasonable adjustment would have been to discount disability-related absences from the trust’s absence management policy.

“The failure to adjust targets and/or triggers meant that the claimant had no allowance for any other legitimate absences. The purpose of reasonable adjustments is to ensure a level playing field but that cannot be achieved if all of the absences allowed are taken up with disability-related matters leaving no room for any other legitimate absence. In this case given the targets and triggers the claimant could not afford to be ill for any other legitimate reason.”

Absence management can be effective, please speak to your Advisor on a case-by-case basis.