Disability-related dismissal: in the latest of our employment law case studies, Aisling Foley considers the recent case of McKenzie v University Hospitals of Leicester NHS Trust. The tribunal found that the claimant was unlawfully dismissed for reasons relating to her disability. It’s a reminder to employers to make reasonable adjustments to level the playing field for all employees.
The claimant was the primary carer for her grandmother. The pressure of this started to affect the claimant’s own health, leading to a diagnosis of depression and anxiety. She also began suffering from frequent migraines. The claimant had medication to try and control the migraines, but she did not find that the medication was particularly effective.
In 2013, the claimant received a first written warning for her sickness absence levels. She received a further warning in 2014 and again in early 2017 for the same reason. The respondent had given her an absence target of no more than one episode of sickness and they confirmed within the warnings that she had breached her target.
The claimant was referred to occupational health in October 2017 and the report that followed confirmed that her role as carer for her grandmother was the main cause of her anxiety. The report also concluded that this had been contributing to her migraines.
In 2018, the claimant went on long term sickness absence, returning in early 2019. Following this period of absence, the claimant was issued with a final written warning. A capability meeting was held in April 2019 and the claimant advised the respondent that she was struggling to balance her home life with work and felt she was struggling to manage her mental health. The claimant’s first written warning was re-issued, rather than her being issued with a final written warning. In December of the same year the claimant went on a period of extended sick leave for depression, lasting 3 months.
A further report from occupational health was obtained and the report recommended that the claimant have a 3-month phased return to work and, if this failed, then she should be redeployed.
The claimant felt that the respondent’s COVID rules were not assisting with her migraines, as she was not allowed to carry a water bottle due to COVID policies and she was therefore becoming dehydrated. She also said that the PPE she was required to wear increased the frequency of her migraines.
In May 2020 the claimant attended a sickness absence hearing. The outcome of the meeting was the claimant’s dismissal. The outcome letter questioned whether the claimant’s recent absences had really been because of migraines and stated that her levels of absence were unacceptable and impacting on the ward and her team. The letter also stated that she had consistently fallen below the respondent’s attendance targets which was not sustainable. By the time of the claimant’s dismissal, she had taken almost 300 days of sick leave.
The claimant brought claims of unfair dismissal, discrimination arising from a disability and failure to make reasonable adjustments.
The claimant claimed that her dismissal was because of her disability (that disability being her anxiety and depression).
The judge held that it was quite clear to him that the warnings the claimant received, and her subsequent dismissal, were at least in part due to the claimant not reaching her attendance targets and that they had stemmed from disability-related absences. The tribunal was therefore satisfied that her dismissal was for something arising from her disabilities.
In terms of whether the respondent was justified to dismiss the claimant, the judge held that, at the time of her dismissal, the claimant’s condition was looking more optimistic, she had already successfully completed a phased return to work and it appeared further instances of long-term absence was unlikely. The judge also found that dismissal was contrary to the occupational health report, which had recommended a 3-month phased return and redeployment if this was unsuccessful. Dismissal was therefore not a proportionate sanction in the circumstances.
In terms of failure to make reasonable adjustments, the tribunal considered the discounting of disability-related absences and whether this would have been a reasonable step in the claimant’s circumstances.
The judge held that it would have been reasonable in this case to discount the claimant’s migraine-related absences in their entirety given they were generally short in length. The judge also held that the failure by the respondent to adjust their attendance targets and triggers meant that the claimant had no allowance for any other legitimate absences.
What to take from the judgement?
This is a useful reminder to employers that reasonable adjustments and support measures are important and should be used where possible. This is not only to ensure employees suffering with disabilities are supported in the workplace, but to protect employers from adverse decisions like the one above.
Employees who have caring responsibilities are often under a great degree of stress that employers may not initially be aware of, considering it is not work-related. Employers should try to be as understanding as possible if there are employees within the business who have caring responsibilities outside of work and ensure there are tools in place to support them in this, for example considering a more flexible approach to things like absence and targets.
Many employers have concerns that if they implement a rule for one person or allow some leeway with a particular rule or policy, this will then be seen as unfair on other employees. The tribunal in the present case confirmed that the purpose of reasonable adjustments is to level the playing field, not to put employees in a better position than their colleagues who do not share their disability. It is important for employers to remember this and if faced with a request for reasonable adjustments, consider if and how the implementation of the request will support the employee and allow the playing field to be levelled.