Alerts

300 Days of Absence

At what point does an employee’s persistent absence become ‘unacceptable’ and what steps should be taken to address this?

Our latest alert covers the case of a nurse who suffered with migraines, anxiety and depression. She  clocked nearly 300 sick days. During the course of her employment, Ms McKenzie was issued written warnings, absence targets which she both met and breached numerous times, invited to capability meetings and was referred to Occupational Health on various occasions. She also reduced her hours through a flexible working agreement. She was ultimately dismissed. She brought claims for unfair dismissal and disability discrimination.

Ms CC McKenzie v University Hospitals of Leicester NHS Trust 

Ms McKenzie started her employment with the NHS Trust in November 2010 as a Band 5 Staff Nurse. She was promoted to a Band 6 Deputy Sister role in December 2015. Her main duties involved the clinical care for patient’s needs on her ward.

Ms McKenzie was the primary carer for her grandmother who suffered from Alzheimer’s and inoperable cancer. Over time, the caring responsibilities began to take their toll on Ms McKenzie’s stress and anxiety levels for which she began taking antidepressant medication.

Throughout her employment Ms McKenzie also suffered regular episodes of migraine attacks which resulted in absence from work. These absences typically lasted one or two days and her manager was aware of the frequency of these attacks.

In Ms McKenzie’s contract of employment ‘excessive absence’ was defined by trigger points. The initial trigger was 3 episodes of more than 10 days or more than 2 working weeks during any rolling 12-month period. The Tribunal was provided with Ms McKenzie’s sickness record for reference and since joining the NHS Trust in 2010 Ms McKenzie had a total of almost 300 days’ absence with the vast majority of these absences being connected to the issues set out above.

During the course of her employment, Ms McKenzie was issued written warnings, absence targets which she met and breached numerous times, invited to capability meetings and was referred to Occupational Health on various occasions. She also reduced her hours through a flexible working agreement.

Following a written warning for absence being issued, Ms McKenzie was absent on long term sickness again due to anxiety and depression.  Shortly after her return, Ms McKenzie attended a Level 2 absence meeting when she was issued with a final written warning which was to remain live on her record for 24 months and she was set further absence targets. Ms McKenzie was absent for 4 further periods, the majority of these absences were as a result of her migraines or her depression. On her return, she attended another Occupational Health assessment and she was considered fit to return; however, there were adjustments recommended to facilitate her return. The report recommended that Ms McKenzie had a phased return to work starting at 50% of her hours and increasing over a 4-week period to her normal role. It was also advised to risk assess her duties at the start of the plan and gradually increase the demands placed upon her. The overall intention of Ms McKenzie was to return to her role as a Band 6 deputy sister, however, redeployment at band 5 was suggested if she was unable to perform 3 months after her return.

She was absent again on two separate days and invited to a Level 3 sickness absence hearing following which she was dismissed. There were no notes of this meeting. She appealed against this decision, but her appeal was rejected, and her dismissal upheld.

Ms McKenzie brought claims for discrimination and unfair dismissal.

Decision

The tribunal found that Ms McKenzie had been treated unfavourably as a consequence of her disability when she was dismissed.

The Tribunal commented that it was quite clear in the management of Ms McKenzie’s absence that the warnings and breaches of targets were principally because of disability-related absences. At the time of dismissal Ms McKenzie had been issued with a target for improvement and was under a 24-month final written warning. She did not achieve her target because she was absent for stress, anxiety, and depression from December 2019 to March 2020. Ms McKenzie’s sickness record also confirmed that the majority of her absences over 10 years were down to stress/anxiety/depression or migraines and, as a result, were disability related. The Tribunal also commented on the wording of Ms McKenzie’s dismissal letter which referenced her consistently falling below the NHS Trusts absence targets and her consequential level of absence being “unacceptable…impacting the ward and [her] team and causing difficulties for [her] area.” The Tribunal concluded that these passages demonstrated that Ms McKenzie’s dismissal was, if not wholly then at least partly, due to her not achieving attendance targets and/or because of her sickness record. The Tribunal was therefore satisfied that the reason for Ms McKenzie’s dismissal was ‘something arising’ from her disabilities.

Although the Tribunal acknowledged managing staff absence to maintain an appropriate level of service in respect of patient care as being a legitimate aim, they ruled that the dismissal was not proportionate due to, amongst other things, the NHS Trust not following the Occupational Health report regarding a 3-month period of return followed by redeployment if not successful. Ms McKenzie’s complaint of discrimination arising from disability therefore succeeded. The Tribunal also ruled that the NHS Trust failed to make reasonable adjustments in relation to Ms McKenzie’s disabilities, focussing once again on their failure to following Occupational Health recommendations.

This failure to observe recommendations also overlapped with the Tribunal’s decisions regarding unfair dismissal. The Tribunal stated that the NHS Trust chose to ignore, or not to follow, the recommendations. The Tribunal noted that employers are not bound by the recommendations of Occupational Health, but a reasonable employer is obliged to provide some justification for departing from its recommendations. No justification was put forward in this case. The Tribunal stated that in departing from those recommendations, and in the absence of an explanation, the NHS Trust acted unreasonably. For this reason, the Tribunal found that the decision to dismiss Ms McKenzie by reason of capability fell outside the band of reasonable responses open to a reasonable employer and was therefore unfair.

Comment

The Equality Act 2010 defines a disability as being any physical or mental illness that has a substantial adverse effect on the individual carrying out day-to-day activities. The illness must either have lasted or have the potential to last 12 months. The Tribunal categorised Ms McKenzie’s migraines, anxiety and depression as a disability and she was therefore protected from discrimination as a result.

Additional care should always be taken by employers when managing absences which are linked and a result of a disability. Although it may seem that the NHS Trust had managed Ms McKenzie’s absence reasonably and been patient given the scale of her absences, their failure to consider recommendations from occupational health at the end rendered her dismissal both unfair and discriminatory.

Employers considering termination for capability linked to ill-health should always ensure that up to date medical advice is obtained and, where recommendations are made about adjustments, consider them carefully. If any proposed adjustments are not feasible, employers should make sure they have evidence of this being discussed with/explained to the employee and also retain evidence of why any recommendations could not be implemented.

If you have any queries in relation to the content of this alert or would like to discuss any training requirements, please contact our employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

 

 

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