Cleaner with significant and high levels of sickness absence wins nearly £50,000 for unfair dismissal and disability discrimination

In the case of Ms Zoe Kitching v University Hospitals of Morecambe Bay NHS Foundation Trust, the employment tribunal (ET) examined the circumstances surrounding Ms Kitching’s dismissal from her role as a cleaner at the Royal Lancaster Infirmary.

Ms Kitching, described as a ‘good worker’, had been employed since September 2018. She faced significant mental health challenges, including anxiety, depression and bipolar disorder, which led to substantial periods of sick leave.

The employer ultimately decided to dismiss the employee due to the high absence levels, but Ms Kitching presented claims to the employment tribunal that this was unfair and discriminatory.

Health struggles

Between 2019 and June 2023 Ms Kitching accumulated 406 days of sick leave. The majority of this was attributed to her mental health conditions. Notably, one continuous absence spanned 130 days from September 2020 to January 2021. Despite her health struggles, she sought adjustments to her work schedule, requesting reduced hours, which she considered would have allowed her to work and would have reduced her sickness absences.

Reduction in hours

The employer was agreeable to a reduction in hours, but she would have to change her place of work. When considering this, Ms Kitching believed a new place to clean would cause her additional stress. She therefore continued in her existing post to remain a cleaner where she knew her colleagues and the systems.

Sickness policy not followed

The employer had various policies for managing sickness absence and a particular one for employees who were deemed disabled. This envisaged a higher level of absence for such employees, but it was argued that the employer did not apply this correctly to Ms Kitching.

Occupational health assessments

In January 2021, an occupational health report concluded that Ms Kitching was ‘not a disabled person within the meaning of the Equality Act 2010’. Relying heavily on this single assessment, the employer did not recognise her as disabled, overlooking other occupational health assessments and fitness notes which were indicating her disability.

Dismissal

She was dismissed in June 2023 and her appeal against dismissal was also unsuccessful.

Findings

The ET found in favour of Ms Kitching and ruled that the employer had failed to make reasonable adjustments for her disability and that her dismissal was both unfair and discriminatory.

The employer’s reliance on the January 2021 occupational health report was said to be ‘irrational and wrong’, especially given the ‘wealth of medical evidence available’ supporting her disability status.

The ET concluded that the employer should have allowed a higher level of sickness absence and made reasonable adjustments, such as reducing her working hours, to accommodate her condition.

Compensation

As a result of the ET’s findings, Ms Kitching was awarded £49,147 in damages for disability discrimination and unfair dismissal.

Opinion

Cases where there is a high level of absence still need to follow proper processes and procedures to support the management of staff absence. This was not an ordinary case of managing a few absences and setting targets for improvement given there was a disability to consider and address. The supportive tone of policies and procedures and potential adjustments appear to have been overlooked.

This case also highlights the importance of comprehensive assessments and considering all available medical evidence when determining an employee’s disability status. Employers should not pick and choose the parts they would like to suit their management case.

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