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Trust failed to make reasonable adjustments to absence policy for disabled nurse

7 Mar 2018 By Marianne Calnan

Judge rules dismissal was disproportionate and absences were mainly ‘consequence of disability’

A former nurse was unfairly dismissed when her employer failed to make reasonable adjustments for her disability in its absence management policy, an employment tribunal has found.

The Sheffield Children’s NHS Foundation Trust applied its attendance management policy to Claire Sutton in such a way that it placed her at a substantial disadvantage as a disabled person. This triggered the trust’s legal duty to make reasonable adjustments to the policy, which it failed to do to.

In a judgment dated 24 January 2018, and published on 5 March, Judge Rogerson said Sutton’s unfavourable treatment was the consequence of the trust’s failure to make reasonable adjustments for her. 

Sheffield Employment Tribunal found that Sutton was disabled within the meaning given in the Equality Act 2010 because of her endometriosis, neuropathic chronic pain and migraines. 

The trust knew about her conditions after it received occupational health advice, dated 11 December 2015, around January 2016. 

The court heard that Sutton was a senior staff nurse for the trust from 7 October 1996 until her dismissal on 20 December 2016. According to her submissions, she was a highly regarded, skilled and valued senior nurse. 

She was absent because of sickness relating to her conditions from September 2014 to October 2015.

The trust’s managing attendance policy stated that periods of sickness relating to disability should be “clearly identified on the individual sickness absence tracker”, so that management could consider reasonable adjustments.  

Its short-term absence management policy does not make reference to the duty to make reasonable adjustments, whereas its long-term policy does.

Sutton’s line manager, ward manager Joanne Reid-Roberts, managed her absence under the trust’s short-term policy despite her knowledge that Sutton had underlying conditions. She failed to treat Sutton as a disabled person and set an absence target of up to 5 per cent absences until 10 May 2016.

It was only when Reid-Roberts went on maternity leave that Julia Leigh, acting ward manager, made an occupational health referral for Sutton on 20 November 2015. She sought advice regarding whether reasonable adjustments, and occupational health confirmed they should be made, and Sutton was set another absence target of 10 per cent from March to June 2016.

The advice was received by Reid-Roberts but was neither considered nor actioned until a sickness absence review meeting on 10 May 2016. During this meeting, Reid-Roberts reviewed Sutton’s recent absence record, which showed a 4.13 per cent absence over four months, and an 8.99 per cent absence between March 2015 and February 2016.

For Sutton’s March to June 2016 review period, her absence was 10.96 per cent. Because she was over her target, another 10 per cent target was set for between July and October 2016.

Another occupational health report was received on 16 September 2016, which outlined that the ideal management of Sutton’s health would be to schedule her working shifts so that she was not required to work around the first day of her period, and to continue adjusting her absence targets.

Sutton was informed that she was dismissed on 20 December 2016 because her 10 per cent absence target could not be extended any longer. This was confirmed by a letter dated 23 December 2016.

She appealed the decision by a letter dated 12 January 2017, stating that she has long-term medical conditions for which provisions of the Equality Act should be applied. 

In his handling of the appeal, Steven Ned, director of human resources and organisational development, and deputy chief executive of the trust, displayed a lack of awareness of disability and disability-related issues – importantly the duty to make reasonable adjustments, according to the judge, 

By a letter dated 14 March 2017, Sutton was informed that her appeal was unsuccessful.

Allowing Sutton’s claims for unfair dismissal, the judge cited the trust’s failure to make reasonable adjustments and unfavourable treatment arising from disability in relation to her dismissal.

On the retrospective application of the adjusted target, Rogerson said the trust should have managed Sutton as a “disabled employee with the knowledge and understanding that the majority of her absences were as a consequence of her disability”.

Her dismissal was not justified and was discrimination arising from disability, he ruled.

Rogerson added: “Taking into account the knowledge [the trust] had at the time of dismissal of a more positive future prognosis, and that the level of attendance had improved and could be maintained, we do not agree it was proportionate in those circumstances [for Sutton to be dismissed].”

Her dismissal, therefore, was unjustified, and represented discrimination arising from disability.

A telephone preliminary hearing will be listed to make the appropriate case management orders for a remedy hearing.

Ned said: “We have not appealed the judgment and are awaiting a remedy hearing in June 2018. Sheffield Children's Hospital accepts the findings of the tribunal. We have a responsibility to make sure we are able to provide safe, high-quality care to children 24 hours a day, 365 days a year, and we rely on our staff attending work on a regular basis to provide this care, while balancing this against the genuine health concerns of our employees. We are looking to re-engage this individual in a role that balances these issues."

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