Ms CC McKenzie v University Hospitals of Leicester NHS Trust — 2022

The claimant was a Band 6 Deputy Sister employed by University Hospitals of Leicester NHS Trust. Her migraines and anxiety/depression were conceded to be disabilities, and the respondent's knowledge of both disabilities was also conceded. The effective date of termination was 14 August 2020, following a dismissal letter dated 29 May 2020, and the respondent relied on capability as the potentially fair reason for dismissal.

The discrimination arising from disability complaint succeeded. The tribunal found that the dismissal was because of the claimant not achieving attendance targets and/or because of her sickness record, and that those matters arose from her disabilities. The respondent had a legitimate aim of managing staff absences to maintain an appropriate level of service in patient care, but dismissal was not found to be proportionate because the claimant had completed a phased return, the occupational health report recommended a three-month return before considering temporary redeployment, the prognosis for mental health-related absence was positive, and there was no medical basis for concluding there would be further long-term absence due to mental health issues.

The failure to make reasonable adjustments complaint also succeeded. The tribunal found that it would have been reasonable not to dismiss the claimant and to extend her employment, to discount migraine-related absences or make greater allowance for them, to discount absences which were more likely than not Covid-related in view of a positive antibody test, to adjust attendance targets or triggers, and to follow the occupational health recommendation of a three-month return before any temporary move to a Band 5 role. The tribunal accepted that the requirement to perform full Deputy Sister duties was a PCP, but did not accept that there was a PCP requiring an employee to guarantee that CBT would improve attendance.

The unfair dismissal complaint succeeded. The tribunal held that dismissal fell outside the band of reasonable responses because the respondent did not substantially follow the most recent occupational health recommendations and gave no valid reason for departing from them, focused excessively on past absence rather than future attendance prospects, and had evidence that the claimant's mental health prognosis was positive. It found no factual basis for contribution and made no Polkey reduction. Remedy was adjourned, with separate case management orders to follow.