Lancashire hospital trust ordered to pay £50,000 to cleaner who took more than 400 sick days in four years
A hospital cleaner who took more than 400 sick days in four years has been awarded almost £50,000 in compensation after a court ruled she was unfairly dismissed.
Zoe Kitching was taken on by the University Hospitals of Morecambe Bay NHS Foundation Trust as a cleaner, working in the Lancaster Suite for general inpatient medical care and treatment.
An Employment Tribunal hearing held in Manchester heard that from the start of her employment in September 2018 to its conclusion in June 2023, Ms Kitching had 406 days of absence over 29 occasions (approximately a 25 per cent absence rate), with 85 per cent of these connected to a mental-health related disability. Others were down to general sickness.
Disability
Two occupational health reports - one prepared on August 28, 2019, and one from September 2020 states Ms Kitching had a disability under the Equality Act 2010. However, on January 12, 2021 she received another which said that she was not a disabled person within the meaning of the Equality Act 2010 .
Targets
Several meetings were held with her supervisor, Ruth Bradburn, and in one, a request to work reduced hours on the Lancaster Suite was denied - she would have to move to a different area of the hospital. On February 22, 2023 Ms Kitching attended an extended absence meeting under the Absence Policy. She was issued with a final letter of concern under the Absence Policy, and targets for improvement were set, which were:
- A short term target of zero sickness for the next three months with the exception of one episode in relation to the claimant’s anxiety totalling no more than five days
- A Long term target, to remain within the trust triggers under the Absence Policy for nine months thereafter.
Following the meeting, between April and June 2023, Ms Kitching had 10 days off sick - due to a chest infection and anxiety.
Dismissal
Ms Kitching was sacked at a formal attendance meeting with Divisional Facilities Manager David Passant on June 27, 2023. Mr Passant did not agree that the claimant had a disability, as defined in the Equality Act 2010 and did not consider an alternative to dismissing the claimant under the Absence Policy, was to manage the claimant under the Retention Policy. Mr Passant said he was specifically told by Christopher Brisley, the People & OD Business Partner, that Ms Kitching did not have a disability, and this was based on the occupational health report dated 12 January 2021.
A report from the Tribual also states: “At no point during the claimant’s employment did Ruth Bradburn form the view that the claimant had a disability as defined in the Equality Act 2010. We don’t understand how Ruth Bradburn failed to recognise that the claimant had a disability, given the claimant told the Ruth Bradburn she had bipolar in 2019, the clear evidence from occupational health in 2019, 2020 and 2021 that the claimant had a disability as defined in the Equality Act 2010, and the reason given for the claimant’s absence from 2019 to 2023, as set out in her sick notes, which are all connected to mental health issues.”
Ruth Bradburn agreed in evidence that she did not identify any of the claimant’s absences between 2019 and 2023 as being disability related and did not follow the disability leave policy or the Retention Policy when managing the claimant’s absence between 2019 and 2023.
Mr Passant allowed the claimant to continue working as bank staff from June 27, 2023 until 15 August 2023, and this was conducted successfully, without any notable absence. An appeal against the dismissal was overturned and Ms Kitching claimed she felt she had been dismissed twice. A report states she felt that her mental health disability had been ignored felt and unable to continue to work as bank staff because she “didn’t belong any more”.
Tribunal comments and decision
Members of the tribunal panel said they were “unimpressed” with Ruth Bradburn’s explanation that it would be a logistical nightmare to arrange the claimant’s rota so that she could work reduced hours on the Lancaster Suite and said she had placed Ms Kitching at a disadvantage by imposing a lower level of tolerated absence than was envisaged under the Absence Policy. The report adds: “We do not agree with the respondent’s submission that it could not continue to operate the cleaning service in a way that accommodated the claimant’s degree of long and short term sickness absence.”
Members said that Ms Kitching could have been issued with a ‘health and well-being passport’, “which would have made a real tangible difference to the way the claimant felt about how seriously the respondent took the claimant’s mental health disability. It would have provided some validation that the respondent understood the claimant’s mental health disability and valued her as an employee with a mental health condition.”
The report concludes: “The decision to deny that the claimant was disabled was irrational and wrong, given the medical evidence available to the contrary.”
They agreed that Ms Kitching had been unfairly dismissed and the Trust had failed to make reasonable adjustments for disability. Damages of £49,147 were awarded.
What does the Trust say?
Alison Balson, Chief People Officer, UHMBT, said: "We respect the findings of the tribunal and will look at what lessons can be learned. We want to apologise to Ms Kitching for any distress caused."