In the case of Ms C C McKenzie v University Hospitals of Leicester NHS Trust, a Leicester tribunal has found that Ms McKenzie was unfairly dismissed and discriminated against.
The hearing took place before Employment Judge Ahmed.
Ms McKenzie commenced employment with the Trust in 2010 and in 2015 was promoted to Deputy Sister. The tribunal was told that since starting her employment she had been absent for almost 300 days, mainly due to migraines.
Around the same time - 2010 - Ms McKenzie began caring for her grandmother, who suffered from dementia. This affected her own health, resulting in stress and anxiety, causing the migraines to increase in their frequency. A later occupational health report in 2017 confirmed that providing care for her grandmother was the main cause of stress suffered by Ms McKenzie and was likely to be contributing to the increased frequency in the migraines that she already suffered from.
In November 2013 and September 2014 Ms McKenzie received written warnings for having had more absences of sickness than her target allowed. Fresh absence targets for attendance were set and were met in 2015.
However, in 2017 Ms McKenzie received another written warning after breaking her absence targets again - and in 2018, Ms McKenzie went on long-term sickness absence until early in 2019, which resulted in her receiving a final written warning.
At a meeting with her employers, further targets were set for her absences and the final warning was to stay on McKenzie’s file for 24 months. She was prescribed anti-depressants which she later - without medical advice - decided to discontinue taking. She then went on long-term sick leave from December 2019 to March 2020 for anxiety and depression. A report from occupational health then recommended Ms McKenzie should return to work for three months, followed by a redeployment if this was unsuccessful. The tribunal noted this was not acted upon by her employers.
Ms McKenzie was then absent again for sinusitis - although she thought that she had contracted Covid - meaning that her absence should not have counted towards her targets - and a later antibody test showed she did have antibodies for the virus.
Ms McKenzie told the tribunal that she believed the type of PPE that she was wearing affected the frequency of her headaches and having to wear a mask continuously throughout her 12-hour shift left her with inadequate opportunities to hydrate - which also affected her migraines.
In May 2020, Ms McKenzie attended a sickness absence hearing in which she was dismissed. In the dismissal letter it was written,
“Having considered all the information presented, I concluded that your sickness absence levels continue to be unacceptable and are impacting the ward and your team causing, difficulties for your area.
I therefore advised you that the Trust was left with no alternative but to serve you notice to terminate your employment on the grounds of ill-health capability.”
Judge Ahmed said the letter showed that “the dismissal was, if not wholly then at least partly, due to the claimant not achieving attendance targets and/or because of her sickness record. We are therefore satisfied that the reason for her dismissal was ‘for something arising’ from her disabilities.”
A hearing to decide compensation will be set for a later date.
Claire 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 the future.”
