An NHS nurse who lost her job after taking too many sick days for her migraines, anxiety and depression was discriminated against and unfairly dismissed, an employment tribunal has found.
Ms McKenzie, a deputy sister, was dismissed from University Hospitals Leicester NHS Trust in May 2020 on grounds of “ill health capability”.
In the 12 months leading to her final absence management hearing she had taken 85 working days off sick and her absence was eight times higher than the NHS trust’s target.
McKenzie suffered from migraines which she claimed had been exacerbated by the tight-fitting personal protective equipment (PPE) she had to wear during the height of the Covid pandemic, and having limited opportunity to drink water during her shifts because of the PPE and the pressure the NHS was under.
The organisation claimed that there were adequate water facilities and reasonable opportunities to hydrate, but this was dismissed by the tribunal which felt opportunities to drink water would have been limited during the pressurised environment at the start of the pandemic.
She claimed the NHS trust was aware of her migraine attacks, which she had suffered for some time. She had tried various medication to relieve her symptoms and had taken time off work for migraines in the past.
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The claimant also had caring responsibilities for her grandmother, who she lived with and who had been diagnosed with an inoperable cancer in 2018. This had taken a toll on McKenzie’s mental health and led to her being prescribed anti-depressants.
McKenzie received her first written warning about sickness absence in November 2013 – most of her absences related to migraine. She received a further warning in September 2014 and an absence target was set. This target was met in 2015 and her warnings expired.
She received another written warning in March 2017 after recording four absences totalling five days in a 12-month period, triggering the organisation’s absence management procedures. She claimed these had been related to stress due to her circumstances at home.
In March 2018 the claimant received a final written warning for absence, but later that year she went on long-term sick leave for anxiety and depression. New absence targets were set in April 2019.
She then had a further period of sick leave for depression from December 2019 to March 2020, after which she attended an occupational health assessment and a counselling session, and referred herself for cognitive behavioural therapy.
The occupational health physician recommended a phased return to work and suggested that if she was not successful after three months then a temporary redeployment to a lower banded role would be the best way forward while she treated her psychological issues.
McKenzie had two further periods of sickness absence in March and April 2020, for what she believed to be sinusitis – which might have been Covid-19 as she later tested positive for antibodies – and for migraine.
In May 2020 she was invited to a sickness absence hearing which resulted in her dismissal. Her appeal against the decision was also dismissed.
The dismissal letter said: “It is clear that you have been given the necessary support throughout your absences and that in some cases management have gone above and beyond to help you maintain your attendance at work. Despite this level of support your absences have consistently fallen below the trust’s targets and this is not sustainable moving forward.”
In our judgment it would have been reasonable in the circumstances to discount the claimant’s migraine-related absences in their entirety given that they were relatively few in number and of fairly short length in terms of absence” – Employment Judge Ahmed
McKenzie told the Leicester employment tribunal that she had been treated unfavourably by the trust. Her absences had been related to her migraines and mental health, which amounted to disabilities under the Equality Act 2010, and that dismissing her because of these was discriminatory.
University Hospitals Leicester NHS Trust argued that her dismissal was legitimate and proportionate because it needed to manage staff absences in order to maintain an appropriate level of service. This reasoning was rejected by the tribunal because it felt that at the time of her dismissal the progonisis for her mental health was “optimistic”, that she had successfully completed a phased return to work fulfilling her contracted hours, and that the trust had no medical basis for concluding she was likely to take more time off for her mental health.
The tribunal also noted that the trust had acted contrary to the occupational health report’s recommendations, as it had not considered redeploying McKenzie to a role with less responsibility instead of dismissing her.
It added that a reasonable adjustment would have been to discount disability-related absences from the trust’s absence management policy.
The judgment says: “In our judgment it would have been reasonable in the circumstances to discount the claimant’s migraine-related absences in their entirety given that they were relatively few in number and of fairly short length in terms of absence. If it would not have been reasonable to [discount all of them] then certainly greater allowance should have been made.
“The failure to adjust targets and/or triggers meant that the claimant had no allowance for any other legitimate absences. The purpose of reasonable adjustments is to ensure a level playing field but that cannot be achieved if all of the absences allowed are taken up with disability-related matters leaving no room for any other legitimate absence. In this case given the targets and triggers the claimant could not afford to be ill for any other legitimate reason.”
It concludes that dismissing the nurse with migraines was not reasonable. A hearing to decide compensation will be set for a later date.
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Clare Teeney, chief people officer at University Hospitals of Leicester NHS Trust, said: “We will use the findings of the tribunal to improve our processes and to consider how we can better support our colleagues in future.”
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