IGNORANCE OF DISABILITY... BOUND TO BE TRIGGERING!
Ms Zoe Kitching was employed as a cleaner to work full-time on the Lancaster Suite (the Suite) at Royal Lancaster Infirmary. She was line managed by Ruth Bradburn. Prior to her dismissal on 27 June 2023, Ms Kitching took over 400 sick days in a 4-year period. 85% of these absences were connected to serious mental health issues.
“When managing sickness absence, managers need to be live to the possibility that an absence is because of a disability. Where this is the case, this absence should be clearly labelled as such, and managed carefully.”
Following her dismissal, Ms Kitching filed claims in the tribunal for Unfair Dismissal, Failure to Make Reasonable Adjustments and unfavourable treatment because of something arising in consequence of her disability.
Following a 3-day hearing at Manchester employment tribunal, Ms Kitching succeeded with all of these claims and has since been awarded almost £50,000 in compensation. The full Judgment call be found HERE
The Tribunal made the following key findings:
Because of the severity of Ms Kitching’s mental health issues, she was a disabled person under the Equality Act 2010.
The Trust failed to acknowledge that Ms Kitching was a disabled person, despite there being clear evidence of this (including her high sickness absence rate and 3 occupational health reports which stated she was disabled).
The Trust failed to follow is own absence management policies. Specifically, it failed to make adjustments for Ms Kitching which would have helped her to overcome the difficulties posed by her mental health issues, and in turn, to provide more consistent and reliable service.
Whilst high absence levels can be a fair basis on which to dismiss someone, in this case, the Trust acted unreasonably when it dismissed Ms Kitching. Fatally, the Trust had failed to obtain up to date medical evidence prior to dismissing Ms Kitching about the likely level of absence going forward, instead, it had conducted a backwards looking exercise, and focussed on her previous absences. This was unfair and discriminatory.
What adjustments would have been reasonable?
The Tribunal found that the Trust had failed to:
Reduce Ms Kitching’s hours and / or length of her shifts
Adjust its sickness absence triggers
Permit a higher level of sickness absence overall
Provide Ms Kitching with a disability passport
We have analysed the Tribunal’s reasoning in relation to the first two of these adjustments in more detail below, as we are often asked if these types of adjustment are reasonable to make.
The Tribunal’s analysis is a helpful reminder of how the size and resources of the employer will be a significant factor when considering the reasonableness or otherwise of a particular adjustment.
Learning points
5. When managing sickness absence, managers need to be live to the possibility that an absence is because of a disability. Where this is the case, this absence should be clearly labelled as such, and managed carefully.
6. The business may be under an obligation to adjust its sickness absence triggers to permit a disabled employer to have a higher level of absence. Medical advice should be sought about this issue – in particular, the business needs to understand what the individual’s absence levels are likely to be going forwards, how that absence may impact on the business, and if adjustments can be made to the policy to assist the individual in avoiding warnings (and eventually dismissal).
7. Be live to the possibility that an individual may be considered disabled under the Equality Act, regardless of the wording of any occupational health report you obtain. In this case, the Trust had received one OH report which stated that Ms Kitchin was not disabled, but had received other reports to say that she was. It should have been clear from these other reports and from her absence records that she was a disabled person, and that the trust therefore needed to make adjustments for her.