Medical reports and disability: don't rely on the report that says what you want to hear and ignore those that don't

Employers have to follow a fair procedure before dismissing an employee who has taken too many days off due to illness to avoid being liable for unfair dismissal. And, of course, if the illness amounts to a disability under the Equality Act 2010, the dismissal may amount to unlawful disability discrimination unless the employer has obtained up to date medical evidence and made any reasonable adjustments. 

We consider what other employers can learn from the recent case of Kitching v University Hospitals of Morecambe Bay NHS Foundation Trust, where the employer decided to ignore three medical reports which indicated that the employee was disabled, in favour of the most recent report which said that she wasn't. 

Facts

Ms Kitching worked as a cleaner from September 2018 until she was dismissed for capability due to her high levels of absence on June 2023. During her employment she had 406 days off due to sickness.

The Trust's absence policy set the following trigger points for short-term or repeated absences: 

• three episodes in a rolling 6-month period or
• two working weeks (single days or cumulative) in a rolling 12-month period. 

An employee who exceeded these triggers would have an ‘extended return to work interview’ and have attendance improvement targets set. If the employee didn't meet those targets, they would be invited to a formal meeting which could result in a warning and, ultimately, dismissal.  

The Trust had a separate policy for staff with a disability, (the retention policy). This acknowledged that  higher levels of absence may be reasonable and said that employees would be given a wellbeing passport. 

2019

Ms Kitching had six periods of absence totalling 70 days, including periods for anxiety/depression and an injury caused by domestic abuse. In August, she attended an extended return to work meeting and received a letter from the trust acknowledging her Bipolar diagnosis and anxiety-related absences.  Two separate occupational health reports both confirmed that she had complex mental health issues and that she was disabled under the Equality Act 2010. Despite this, the trust followed its absence policy rather than the retention policy and she received a warning in November 2019. It did not give her a wellbeing passport.

2020

Ms Kitching had five periods of absence totalling 182 days, due to anxiety, stress or depression. In September 2020, an occupational health report again confirmed that she had a disability. 

2021

Ms Kitching had six absences totalling 28 days, half of which were due to stress/anxiety. In January, an occupational health report stated that she was not disabled. In February 2021 she received a final warning and new trigger points were set. If her absence levels exceeded these triggers it would lead to a further meeting. 

Ms Kitching asked to reduce her hours. The trust told her that she could only reduce her hours if she worked in a different area. Ms Kitching declined due to the increased anxiety this would cause. 

The final warning was extended in July 2021 and again in September 2021. 

2022

Ms Kitching had eight periods of absence totalling 72 days: three for sickness, vomiting, acid reflux or asthma; two for Covid; and two for a breakdown and mental health issues. 

The Trust extended its final warning in March 2022. Then in September 2022, she received another final warning with a target of zero sickness for the following three months. 

2023

In February Ms Kitching received another final warning with targets: zero sickness for three months, except one episode of anxiety (up to five days), and then adherence to the absence policy triggers for nine months. She had absences in April 2023 (anxiety), May (chest infection), and June 2023 (anxiety).

She was dismissed at the end of June after a formal attendance meeting. However, she continued to work as bank staff, without any notable absences, until her appeal was not upheld. 

She brought claims in the Employment Tribunal for unfair dismissal, a failure to make reasonable adjustments, and discrimination arising from a disability. 

Decision - unfair dismissal

The tribunal held that Ms Kitching was dismissed due to her substantial historic absences. However, it found that the trust had acted unreasonably in treating this as a sufficient reason for her dismissal, making it unfair. 

The tribunal criticised the trust for failing to recognise Ms Kitching's disability despite clear evidence from three occupational health reports (and fit notes) which they said was irrational and wrong. 

The trust also failed to obtain updated medical information or consider alternatives before dismissing her. The tribunal was also concerned about the timing of the dismissal. The trust had tolerated significant absences until February 2023, after which Ms Kitching's attendance improved. It held that no reasonable employer would dismiss her when her attendance was improving.  

Her dismissal was procedurally and substantially unfair, as well as discriminatory. 

Failure to make reasonable adjustments

Ms Kitching argued that reducing her hours or shifts would have been a reasonable adjustment. The tribunal agreed, noting her attendance would have improved if she remained working at her usual location on reduced hours. The Trust had 148 cleaners and bank staff and could have easily adjusted the cleaning rota, as they had done before when she returned from absences on a phased basis. The Trust's claim that it would be a ‘logistical nightmare’ was unconvincing. They admitted they could have trialled the arrangement but failed to do so and the tribunal noted that as a large NHS hospital with significant resources, they could have managed the shortfall in her hours.

Ms Kitching also argued that adjusting sickness absence triggers would also have been a reasonable adjustment. The tribunal agreed that she was disadvantaged by the triggers and said the trust:

• should have tolerated higher absences due to her disability; and
• consulted occupational health to set appropriate triggers. 

The trust would not have dismissed her if it made these adjustments.

The trust hadn't followed its retention policy or issued a wellbeing passport. These were both reasonable adjustments that it should have taken. 

Discrimination arising from a disability

The tribunal calculated that 85% of Ms Kitching's absences were due to her disability. The trust argued that the way it had managed her sickness absence was a proportionate means to achieve the following aims: 

• ensuring acceptable levels of absence among staff
• preventing a disproportionate burden being placed on other staff members due to staff sickness; and
• ensuring sustainable service levels of the respondent

The tribunal stated that the trust should have looked at Ms Kitching's likely absence levels in the future, not her historic absences, when considering if dismissal would achieve their aims. Therefore, dismissing based solely on past absences, as the trust had done, rather than the likelihood of future absences, is unjustified. This is especially true since the trust lacked up to date medical information on Ms Kitching's likely future attendance.   

Therefore, the claim of discrimination arising from a disability was also successful. The tribunal said that a more proportionate and less discriminatory approach would have been to retain Ms Kitching with certain conditions:

• obtaining occupational health advice on her likely absence level over 12 months due to her disability and adjusting absence policy triggers accordingly; and
• making reasonable adjustments by allowing her to work fewer hours or days in her usual workplace. 

Ms Kitching was awarded a total of £49,147.50, with £45,597 of this amount for injury to feelings which puts it in the higher Vento band. 

Learning points for other employers

Managing short-term sickness absence is challenging and requires careful consideration. We recommend that you: 

1. Review your absence policy

Does it set out what level of absence is likely to trigger a meeting? Does it provide for these to be adjusted where the employee is disabled or is absent for another reason (such as pregnancy related absences)? 

Do you provide guidance to help you managers understand this? If you have separate policies, do they understand how to select the correct one? Who should they ask if they need help?

2. Investigate if you suspect that an employee has a disability

If you suspect that an employee may have an underlying condition, you should find out if they are likely to be disabled and if they are, make adjustments to help them remain in work or return to work if they are absent. 

A disability is defined as a mental or physical impairment that has a substantial, adverse effect on the employee's ability to carry out day-to-day activities and is long-term. You are liable for direct discrimination, discrimination arising from a disability, and failure to make reasonable adjustments if you knew or should have known about the disability. Knowledge can be inferred from circumstances. You can't claim ignorance just because you weren't told directly or a professional (such as OH) got it wrong. 

3. Give the employee a reasonable time to improve their attendance

If an employee has a disability you have a duty to make reasonable adjustments. An occupational health report will set out what steps you can take to help the employee work and to minimise absences. But you should also ask the employee what adjustments they think they need and consider these. If you can't accommodate an adjustment, explain why. And if you're unsure, try it out first. 

If you have disability passports, make sure that you complete these. It will help other line-managers to make adjustments if the employee switches roles or a new manager is appointed. 

4. Consider alternatives to dismissal

Before contemplating dismissal, ensure all possible adjustments and alternatives have been thoroughly explored. Additionally, seek updated occupational health advice regarding the employee’s anticipated future absence levels, and be prepared to substantiate why these levels are untenable.

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