Nurse was unfairly dismissed for ‘unacceptable’ number of sick days, tribunal finds

Judge rules NHS trust failed to adjust claimant’s absence targets to account for both her disabilities and other legitimate reasons

Luis Alvarez

A senior nurse who was sacked for her “unacceptable” sickness absence record caused by migraines, anxiety and depression was unfairly dismissed and discriminated against, a tribunal has found.

The Leicester hearing centre heard that Ms McKenzie, who was the sole carer for her elderly grandmother, suffered from severe headaches, depression and anxiety, which are considered disabilities.

However, the tribunal found that the failure of her employer, University Hospitals of Leicester NHS Trust, to adjust absence targets meant McKenzie had no allowance for any absences beyond those caused by her disability.

Sickness absence rate highest in a decade, survey data shows

More UK workers seeking counselling for anxiety and job stress, figures show

Long Covid may not always count as a disability, equalities watchdog warns

Judge Ahmed said the purpose of a reasonable adjustment was to “ensure a level playing field”, but that this could not be achieved “if all of the absences allowed are taken up with disability-related matters, leaving no room for any other legitimate absence”.

The judge also concluded that McKenzie’s dismissal letter demonstrated she had been dismissed, at least in part, because she failed to meet her attendance targets. “Put in simple terms, the claimant had disabilities which caused her to [be] absent from work and for which she was ultimately dismissed,” Ahmed said.

McKenzie started her employment with the trust in 2010 and, after five years, was promoted to deputy sister. The tribunal heard that since the start of her employment, she had amassed a total of almost 300 days of absence, the vast majority related to her migraines.

Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter

The tribunal heard that, starting from around August 2010, McKenzie began living with and caring for her grandmother, who suffered from dementia and was later diagnosed with Alzheimer’s, becoming her “de facto carer''. Over time, this took a toll on her own health, in particular her stress and anxiety.

The tribunal heard that an occupational health report from October 2017 confirmed that providing care for her grandmother was the main cause of her stress and contributed to the “increased frequency” in migraines.

McKenzie received her first written warning about sickness absence in November 2013, as well as a further warning in September 2014 having breached her target of more than one episode of sickness, resulting in an absence target being set.

Her target was then met the following year, which resulted in her warnings expiring. However, the tribunal heard McKenzie received another written warning in March 2017 after breaching her absence targets again. Then, in September 2018, McKenzie went on long-term sickness absence until late January 2019, after which she received a final written warning.

At a capability meeting in April 2019, McKenzie explained to her employer the difficulties in trying to balance home and work life as well as managing her own mental health and she was later prescribed migraine prophylactics but these never proved to be effective.

Later that year, she went on long-term sick leave from December 2019 to March 2020 for anxiety and depression. Following this, a report from occupational health recommended McKenzie have a three-month return to work, followed by redeployment if this was unsuccessful, however the tribunal noted this was not how the trust acted.

The tribunal heard that McKenzie then had two more absences in March and in April – the first of which was for sinusitis, although McKenzie believed she had contracted Covid meaning the absence should not have counted. An antibody test taken a few months later showed she did have antibodies for the virus.

McKenzie also argued that the type of personal protective equipment (PPE) she was required to wear because of the pandemic contributed to the migraine that led to her April absence. She also claims that she was unable to carry a water bottle around because of Covid policies, meaning she suffered from dehydration which caused her to be more vulnerable to migraines.

The tribunal agreed that “in the pressurised environment at the time the opportunities to hydrate were limited”.

The tribunal was told that in May 2020, McKenzie attended a sickness absence hearing in which she was dismissed. In her dismissal letter, the chair of the absence meeting questioned whether McKenzie’s recent absences had really been due to migraines and sinusitis, and stated that the PPE mask she had to wear was there to protect her.

They also 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.”

However, Judge Ahmed said the letter demonstrated that “the dismissal was, if not wholly then at least partly, due to the claimant not achieving attendance targets and/or because of her sickness record”.

“We are therefore satisfied that the reason for her dismissal was ‘for something arising’ from her disabilities,” said Ahmed.

Commenting on the tribunal, Danielle Oakley, associate director at Peninsula, cautioned that any health condition may be considered a disability under the Equality Act if it is long term and the symptoms cause an effect on the employee’s ability to carry out normal day-to-day activities.

She added that employers have a legal duty to implement reasonable adjustment to support them in the workplace.

“Adequate support measures, including reasonable adjustments and a sensitive, understanding approach to any health-related conversations are fundamental in ensuring the continual employment and success of employees with a disability,” she explained.

Oakley also added that employers should understand that caring responsibilities can be stressful and must often take priority so companies should be more flexible in their approach.

Claire Teeney, chief people officer at University Hospitals of Leicester NHS Trust, said: “We will use the findings of the tribunal to improve our processes and to consider how we can better support our colleagues in the future.”

A hearing to decide compensation will be set for a later date.