Case Study: Senior Nurse awarded £38,000 for unfair dismissal and disability discrimination
2 October 2022
Taylor Bracewell
The Employment Tribunal, in this first instance decision, concluded that the Employer had not acted reasonably in deciding to dismiss due to “excessively” focusing on the past absence. Despite a poor sickness absence record, the Claimant employee, Ms McKenzie was successful with several claims, including unfair dismissal and disability discrimination.
The Claimant was employed as a Senior Nurse at the University of Leicester NHS Trust for over 10 years. She was dismissed in May 2020 for taking too much time off due to migraines and issues surrounding her mental health. The Claimant was also the carer for her grandmother (who suffered from dementia and cancer) which led to her suffering from depression and a reduction in her working hours.
In 2019 Ms McKenzie had a capability meeting with her employer as she wasn’t meeting her absence target. She had 300 days off in the 10 years she worked there, this was 8 times higher than the target. In the meeting, she explained how she’d been struggling with her mental health and work-life balance. Later on that year, Ms McKenzie had another meeting in which she was given a written warning and new absence targets. From June to November 2019, she was absent for 19 days and in December she stopped taking her anti-depressants which led to further absence.
In May 2020, the Claimant was dismissed. The judge, sitting at Leicester Employment Tribunal, found the dismissal to be legally unfair. He found the employer had failed to follow Occupational Health guidance and concluded that the employer had focused “excessively on the past”. Complaints of disability discrimination were also upheld, with the judge finding that the Claimant had been subject to unlawful discrimination due to her poor sickness absence record. The judge found that at the time of dismissal, there were a number of points in favour of the Claimant, not least that she had successfully completed a phased return to work. The decision to dismiss was not considered to be a proportionate response on the part of the employer.
Ms McKenzie was awarded £38,000 in compensation. The unfair dismissal damages were £4,000 for the basic award, £21,000 as a compensatory award and for the disability discrimination, £12,000 was awarded for injury to feelings.
This case is a useful reminder of how important it is for an employer to be forward-looking when considering the likelihood of further sickness absence and to very carefully follow guidance from Occupational Health.
If you would like further information on unfair dismissal and related Employment Tribunal claims, don’t hesitate to contact our experienced Employment Team on 01302 341414 or 0114 272 1884 or by filling out our online enquiry form.
We have further articles on our website relating to unfair dismissal and Employment law, here are four that you may find useful:
