I was sacked while I was off sick. Can I claim?
If you’ve taken long or frequent periods of sick leave, and you are dismissed while you’re off work, you might wonder whether that’s legal or not.
To answer that question, this article tells the story of Zoe Kitching who started work in 2018 as a cleaner at Royal Lancaster Infirmary, part of the University Hospitals of Morecambe Bay NHS Foundation Trust. After making a claim at the employment tribunal, she won £49,000.
Zoe’s story
Zoe suffers from anxiety, depression and bipolar disorder.
In her first year at work, she was absent for six separate periods totalling 70 days. The reasons varied but included anxiety and depression. In one case, she took six days off after sustaining an injury caused by domestic abuse.
To set an improvement target for her attendance, Zoe was invited to an ‘extended return to work interview’ in 2019 with her line manager, Patient Environment Site Services Manager, Ruth Bradburn.
Later that month, the NHS Foundation Trust received two occupational health (OH) reports stating that Zoe had been diagnosed with complex mental health issues and was therefore classified as disabled under the Equality Act 2010.
Under the NHS Foundation Trust’s absence policy, Zoe was sent a ‘first letter of concern’ in November 2019.
But her ill health continued throughout 2020, and Zoe was absent for another five periods due to anxiety, depression or stress, totalling another 182 days.
That year, one OH report confirmed she had a disability within the meaning of the 2010 Equality Act, but a 2021 report contradicted this finding.
She was sent a ‘final letter of concern’. which was extended twice. However, during 2021, Zoe continued to suffer from anxiety and stress and took another 28 days off.
In 2022, she continued to have periods of absence which totalled 72 days. The reasons varied but the most significant was a breakdown, which meant she took another 53 days off.
She was sent another ‘first letter of concern’ under her employer’s absence policy, which set a target of zero sickness for the next three months.
However, she took seven days off within that time due to Covid plus one day because of stress. She also had another 42 days off due to anxiety and depressive disorder.
After being issued with another ‘final letter of concern’, she was set a short-term target of zero sickness absence for three months with the exception of one episode totalling no more than five days relating to anxiety, plus a long-term target to remain within the absence policy targets for nine months.
However, Zoe took one day off after this due to anxiety, eight days off for a chest infection, and then one more day due to anxiety.
Summary
Between 2019 and 2023, Zoe took more than 400 sick days, with one absence lasting for 130 days. 85% of these absences were directly due to her severe mental health episodes.
She had several meetings with Ruth (her line manager) to address her absences and establish performance targets to reduce them. However, when Zoe asked for a reduction in her working hours, her request was declined.
She switched to a role as a bank staff member, maintaining the same rota and doing the same shift hours as she’d done as an employed staff member, without any notable absence.
Although Zoe’s attendance had improved by June 2023, she was dismissed due to the total amount of time she’d taken off sick since joining, which added up to 406 days.
She appealed against her dismissal and asked for another chance, explaining that her absences were due to poor mental health, but her appeal was turned down.
What happened next
Zoe made a claim at the Manchester employment tribunal, where Employment Judge, Childe, said:
- Denying that Zoe was disabled was irrational and wrong, given the medical evidence
- The NHS trust should have permitted a high level of sickness absence in her case
- Failing to do so was a failure to make adjustments for a disabled employee
- The decision to dismiss her was unfair, discriminatory, and unreasonable
As a result, Zoe was awarded £49,000 made up as follows:
- A basic award for unfair dismissal of £1,735
- A compensatory award for unfair dismissal of £500
- Compensation for unlawful discrimination, inclusive of interest, of £45,597 (inc. £32,500 for injury to feelings)
- A grossed-up amount of £1,315.50
What this means to you
Even if, like Zoe, you’re off sick for over 400 days over four years, you may still have a case. However, every situation is different.
Just because you have a diagnosed mental illness and take long periods off work, it doesn’t mean your employer can’t sack you lawfully. In this case, it was because the NHS Trust dismissal process wasn’t fair to Zoe.
They failed to offer reduced hours, even on a trial basis. They ignored the extensive medical evidence that demonstrated she was disabled due to her mental health condition and chose to rely on just one report which stated she wasn’t. They failed to obtain up-to-date medical advice. If they had, the tribunal believes her disability would have been confirmed.
Your employer should treat you in a reasonable and fair way (whether you are disabled or not).
If you’re regularly off sick, your employer should take account of the causes for your absence. For some disabilities, it is reasonable for them to expect a higher level of absence, or to support a period of extended absence. They should make reasonable adjustments as an alternative to dismissal, such as offering reduced working hours.
Note that adjustments which are considered “reasonable” vary depending on the context of the size and financial resources of the employer. What is reasonable may be higher for a large employer, such as the NHS, than it is for smaller employers with limited resources.
If you’d like advice about your own chances of winning a discrimination or unfair dismissal case, give us a call. The initial conversation is free, and we work with some clients on a no-win no-fee basis. Even the phone call is free! Dial 0808 168 7288 and we’ll be happy to help.
Related reading
If you’re interested in reading more about this topic, please check out our related articles. These include:
- Case study: Disability discrimination
- How much money can I get for disability discrimination?
- What is disability discrimination?
- How much compensation can I get for disability discrimination?
- All you need to know: Disability at your workplace
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