Mrs S Carter v Barts Health NHS Trust — 2019

Mrs Carter was a senior sister in the Respondent's Adult Critical Care Unit and was admitted to be disabled by reason of symphysis pubis and hallux valgus. The Tribunal found that she had a high level of sickness absence, including 375 days since September 2015, and accepted that the absence of a Band 7 nurse had a significant impact on the unit, including staffing, senior cover, service delivery and cost.

The Tribunal found that the Respondent had legitimate aims in managing sickness absence and maintaining attendance, and that it was reasonable to be concerned about future absence. However, it found that the March 2018 absence was connected to the foot deformity and that the Respondent should have investigated that connection before treating the absence as a breach of the sickness target and moving to Stage 3. It held that disregarding that short disability-related absence for the purpose of the target, and obtaining further OH advice, were reasonable adjustments.

For the section 15 claim, the Tribunal held that the Stage 3 meeting, dismissal and appeal rejection were unfavourable treatment because of disability-related absence and were not objectively justified, because a reasonable adjustment would have avoided the step to Stage 3 at that point. For unfair dismissal, the Tribunal accepted capability as the reason and accepted that dismissal could be within the range of reasonable responses, but found the overall procedure unreasonable, including failure to postpone the Stage 3 meeting when the Claimant's father was gravely ill, failure to investigate the final absence, the inappropriate dismissal-letter instruction, and shortcomings in the appeal. It found that Mrs Carter would in any event have been fairly dismissed by 31 December 2018 because of later continuing absence.