Ms Zoe Kitching v University Hospitals Of Morecambe Bay NHS Foundation Trust — 2024

The claimant was employed as a cleaner from 3 September 2018 and was dismissed on 27 June 2023 following attendance management proceedings. The respondent accepted that she was disabled by reason of PTSD, depression and anxiety and emotionally unstable/borderline personality disorder, and accepted knowledge of disability from August 2019. The tribunal found that the reason for dismissal was the totality of the claimant's historic absences from 2019 to June 2023, recorded as 406 days over 29 occasions, with 85% appearing to be connected to disability.

The reasonable adjustments complaint succeeded. The tribunal found that applying the respondent's managing sickness absence policy placed the claimant at a substantial disadvantage because someone with her mental health disabilities was more likely to have sickness absence and trigger the policy. It found the respondent should reasonably have reduced her hours or days while keeping her on the Lancaster Suite, adjusted absence triggers after obtaining occupational health advice, tolerated a higher level of disability-related sickness absence as contemplated by the Support and Retention of Disabled Colleagues policy, and used a health and wellbeing passport to record adjustments. The tribunal found those adjustments would have been effective and practicable, and that the final decision not to make them was on 15 August 2023, so the reasonable adjustments claim was in time.

The unfair dismissal complaint succeeded. The tribunal accepted that historic absences could amount to some other substantial reason, but found dismissal was not within the range of reasonable responses. It found that the dismissing and appeal managers did not accept the claimant was disabled despite occupational health reports and fit notes, did not consider the Retention Policy, did not identify which absences were disability-related, and did not consider discounting disability-related absences, supporting extended absence, or making adjustments. It also found that the claimant's attendance had improved by the time of dismissal and that no reasonable employer would have tolerated the earlier absence levels, then dismissed when attendance had improved while failing to follow its own Retention Policy and make reasonable adjustments.

The section 15 discrimination arising from disability complaint also succeeded. The respondent accepted that dismissal was unfavourable treatment, that sickness absences arose in consequence of disability, and that dismissal was because of the sickness absence record. The tribunal accepted the respondent's aims of ensuring acceptable absence levels, preventing disproportionate burden on other staff, and ensuring sustainable service levels, but found dismissal was not proportionate because the assessment needed to be forward-looking and the respondent had no current occupational health evidence about likely future attendance. It found less discriminatory steps were available, including retaining the claimant with adjusted triggers informed by occupational health advice and allowing her fewer hours or days on the Lancaster Suite.