A costly dismissal for intermittent absences

In the recent case of Ms Z Kitching v University Hospitals of Morecambe Bay NHS Foundation Trust (the Trust), the employer was ordered to pay nearly £50,000 (£49,147.50) to a cleaner who brought successful claims for unfair dismissal and disability discrimination.  

Ms Z Kitching v University Hospitals of Morecambe Bay NHS Foundation Trust, 2408953/2023 

Facts of the case 

Ms Kitching, employed as a cleaner from September 2018, was dismissed due to very high levels of sickness absence linked to mental health issues and domestic abuse. The Trust cited 406 days of absence over 29 occasions, claiming the dismissal was fair. However, the employment tribunal disagreed.  

Similarly to many large employers, the Trust had an absence policy with specific trigger points for short-term and repeated absences, as well as provisions for long-term absence. To manage sickness absence, this policy set out a process involving formal meetings, issuing letters of concern when triggers were breached, and a final letter of concern if improvement targets were not met. Managers were expected to refer to a separate policy (Support and Retention of Disabled Colleagues policy) for staff with a disability. 

Employment tribunal decision 

Ms Kitching succeeded in all her complaints of: 

• Failure to make reasonable adjustments 

• Unfair dismissal 

• Unfavourable treatment due to disability-related absences 

In particular, the tribunal found the Trust had not reasonably considered her disability or their retention policy prior to her dismissal. It had failed to make reasonable adjustments for her disability, such as reducing her hours or adjusting sickness absence targets. The tribunal was satisfied that adjustments would have been effective in preventing the substantial disadvantage to Ms Kitching resulting from the absence policy.   

In awarding compensation, the tribunal awarded her £32,500 for injury to feelings as well as loss of earnings and interest, totalling £49,147.50. This puts the injury of feelings award in the upper ‘Vento band’ applicable at the time the claim was made, meaning that the tribunal considered it to be in the most serious category of discrimination claims. 

The Birketts view 

This case highlights the importance for employers to manage persistent sickness absences carefully, whether long-term or short-term, to avoid the potentially high costs incurred in a successful claim 

An absence management policy is typically considered a provision, criterion, or practice (PCP) for the purposes of the duty to make reasonable adjustments. Consequently, applying these policies to employees with disabilities can place them at a significant disadvantage compared to those without disabilities, as such employees are more likely to trigger the policy’s thresholds for both long-term and short-term absences. 

When managing persistent sickness absence, before making the decision to dismiss, employers should consider the following: 

• Reasonable adjustments: adjust sickness absence targets and consider other accommodations such as reduced hours or shorter shifts for employees with disabilities. This includes permitting a higher level of sickness absence before a disabled employee triggers the next stage of the absence policy.  

• Consider alternatives: always explore and document that alternatives to dismissal that have been considered, such as redeployment. Use a checklist tailored to the business to ensure the decision-makers consider every potential alternative to dismissal and document the reasons why an alternative may not be suitable if it is considered but not offered. 

• Conflicting medical evidence: be cautious with conflicting medical reports and lean towards accommodating disabilities. In cases of conflicting medical evidence, employers should be careful about preferring one report over another, especially when more evidence points towards disability. The bar for meeting the test of disability under the Equality Act 2010 is lower than many employers appreciate. When in doubt, make adjustments as if the employee is disabled. In this case, there was conflicting medical evidence, and the Trust relied on one occupational health (OH) report, which did not state that the claimant was disabled, ignoring previous OH reports and fit notes.   

• Revisit decisions: reassess decisions if circumstances change. For example, if an employee’s attendance improves significantly, reconsider the decision to dismiss. In this case, the Trust allowed Ms Kitching to continue to work as bank staff following the dismissal hearing and during this period, she had no absences. 

• Up-to-date medical evidence: ensure medical evidence is current before making dismissal decisions. If the most recent medical evidence is outdated, commission an updated report to fairly assess the employee’s condition. This is crucial, especially if the employee’s prognosis has improved, and failing to do this could render any decision unfair. In this case, the Trust did not commission a further OH report before the dismissal.  

• Disability-related absences: differentiate between absences due to disability and other reasons. Consider how many absences are linked to underlying health conditions. For instance, in this case, 85% of the absences were related to Ms Kitching’s disability. This should be factored into any decision, including dismissal, and with respect to making reasonable adjustments.  

• Proportionality: consider less discriminatory actions before deciding on dismissal. Always ask if there is a more appropriate, less discriminatory step that can be taken. 

• Follow policies: adhere to all relevant policies and document reasons for any deviations. In this case, the Trust did not apply their own retention policy.  

We understand that employers can only endure a certain level of persistent absenteeism before considering dismissal. However, this case highlights the significant challenges and high standards employers must meet before dismissing employees for frequent intermittent absences, particularly if the employee has (or is suspected to have) a disability.