NHS cleaner sacked after 400 sick days in four years wins £50000 ...

An NHS cleaner was unfairly dismissed despite a ‘wealth of evidence’ of her disability, a tribunal has heard.

Zoe Kitching took several periods of sick leave between 2019 and 2023, adding up to more than 400 days in total, due to her ‘complex mental health issues’.

But at one point an NHS boss insisted she was not disabled before she was unfairly fired for the absences.

Zoe took the NHS Trust to court and won claims of disability discrimination and unfair dismissal.

She’s now been awarded just under £50,000 in damages.

Zoe worked on the Lancaster Suite at Royal Lancaster Infirmary, which is run by the University Hospitals of Morecambe Bay NHS Foundation Trust.

Throughout her employment she had a total of 406 absence days – with 85% of these related to her disability.

The tribunal heard she has anxiety, depression, and bipolar, with her mental health issues described as ‘complex’.

Zoe sometimes suffered breakdowns, forcing her to take time off work, and one period of disability-related absence lasted for 130 days, from September 2020 to January 2021.

Although she had previously been classified as disabled, in January 2021 the hospital received an occupational health report which ‘curiously’ stated she was ‘not a disabled person within the meaning of the Equality Act 2010’.

She had previously asked her manager, Ruth Bardburn, if she could cut her hours, but this request was refused.

In the following months, Zoe had several meetings with Ruth, the patient environment site services manager, about her absences and to set targets to reduce days off.

Despite her absences improving by June 2023, Zoe was sacked by divisional manager of facilities David Passant – who had been told by Christopher Brisley, people & OD business partner, that she was not disabled.

NHS managers only took the January 2021 occupational health report into account and ignored other ‘obvious’ evidence that Zoe was disabled, the tribunal heard, meaning she felt her ‘mental health disability had been ignored’.

The tribunal judgement said: ‘Ms Kitching was extremely upset by the decision to dismiss her and the refusal of Mr Passant to recognise that she was a disabled person as defined under the Equality Act 2010.

‘She asked for another chance and explained that her absences had been due to mental health. She said it was unnecessary for her to lose her job.

‘Ms Kitching was extremely upset after the decision was taken at appeal not to overturn the original decision to dismiss. We’ve accepted her evidence that she felt that she had been dismissed twice.’

Employment Judge Robert Childe criticised the managers, saying ‘at no point…. did Ruth Bradburn form the view that Ms Kitching had a disability’ and that ‘Mr Passant did not agree that she had a disability’.

Judge Childe said: ‘We find the NHS Trust should have permitted a high level of sickness absence overall from Ms Kitching and the failure to do so was a failure to make adjustments.

‘We find that the NHS trust did not act reasonably in treating that as a sufficient reason for dismissing Ms Kitching in the circumstances.

‘At no time during the dismissal meeting or appeal meeting did the NHS trust agree that Ms Kitching was a disabled person… which led to an unfair and fundamentally flawed and discriminatory decision to dismiss her.

‘There was a wealth of medical evidence available that Ms Kitching was a disabled person.

‘We were particularly surprised that Christopher Brisley advised Mr Passant, that Ms Kitching was not a disabled person.

‘The decision to deny that Ms Kitching’ was disabled was irrational and wrong, given the medical evidence available to the contrary.”

After representing herself at an employment tribunal in Manchester, Zoe won claims of disability discrimination and unfair dismissal against the Trust and has been awarded £49,147 in damages.

Alison Balson, chief people officer at the Trust, 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.’

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