In Kitching v University Hospitals of Morecambe Bay NHS Foundation Trust, the Employment Tribunal found a dismissal for long-term sickness absence was unfair and discriminatory after the employer disregarded consistent medical evidence of disability and failed to explore a straightforward adjustment.
What Happened
Zoe Kitching worked as a cleaner at the Royal Lancaster Infirmary from September 2018 and had anxiety, depression and bipolar disorder.
Between 2019 and June 2023, she had 406 days of absence, the majority of which the Tribunal found were linked to her disability.
She was managed under the Trust’s absence policy and remained subject to formal attendance management for extended periods.
When she was dismissed on 27 June 2023, the employer relied on one occupational health report suggesting she was not disabled, despite numerous other reports reaching the opposite conclusion.
What the Tribunal Found
The tribunal upheld three complaints:
- Unfavourable treatment because of something arising in consequence of disability (section 15 of the Equality Act 2010): the dismissal itself amounted to unfavourable treatment because of absences which were overwhelmingly disability-related.
- Failure to make reasonable adjustments: specifically, the refusal to allow the claimant to reduce her hours, which her line manager accepted she could have trialled but chose not to.
- Unfair dismissal: putting her disability aside, the Tribunal found that no reasonable employer would have dismissed in these circumstances without considering the link between the absences and the disability, or without considering what adjustments might help.
The Trust’s own retention policy acknowledged that for some disabilities it is reasonable to expect a higher level of absence, and that this should be taken into account before formal absence management procedures are started. The policy also required that adjustments be offered before dismissal was considered. It was not followed.
The Tribunal was also critical of the Trust’s decision not to commission a fresh occupational health report before the dismissal. Had it done so, the Tribunal noted, it would have received clear information confirming the claimant’s disability, and would have been unable to proceed as it did.
The Award
Having been successful in her claims, the Claimant was awarded £32,500 for injury to feelings as well as loss of earnings and interest, totalling £49,147.50. Her injury to feelings was considered to be in the most serious category of discrimination claims.
The Reasonable Adjustment the Trust Refused to Consider
One of the most striking findings in this case is how straightforward the adjustment was.
The Claimant had asked to reduce her hours and her manager had simply said no. She told her that working fewer hours was not logistically possible, however when pressed at Tribunal, her manager accepted that she could have trialled a reduced-hours or part-time arrangement, yet simply had not done so.
The Tribunal found that had she been allowed to work reduced hours, her attendance would have improved. It accepted her evidence that knowing she would not be working all day or all week made it easier for her to leave home and get to work, directly relevant to someone managing complex mental health conditions and significant stressors in her home life.
This clearly demonstrates the important role that trials have in reasonable adjustments – particularly, in demonstrating whether or not the adjustment is reasonable or feasible.
What This Means for Employers
For employers, the case underlines three recurring risks in sickness absence dismissals: ignoring medical evidence, failing to follow internal policy, and not properly considering reasonable adjustments.
- Consider all occupational health evidence. If reports conflict, obtain updated advice rather than relying on the report that best supports dismissal. Further, employers should be aware that an Occupational Health report is not conclusive-– even if a report says the employee is or is not disabled, the Tribunal may find otherwise.
- Follow your own policies. If your procedures require disability-related absence to be treated differently or adjustments to be explored before dismissal, that must happen in practice.
- Trial reasonable adjustments where possible. A short-term or reduced-hours arrangement that is tested is far more defensible than rejecting an adjustment without trying it.
Here you can learn more about what reasonable adjustments look like, and how you can take steps to sure you are implementing them appropriately.
The Bigger Picture
This decision reflects a wider point that appears regularly in disability discrimination cases. Employers can usually defend capability dismissals where they obtain current medical evidence, engage properly with adjustments, and follow their own procedures. They are far more exposed where they treat disability-related absence as a simple attendance problem.
The case is also a reminder that Tribunals look closely at whether an employer genuinely tested practical options before dismissal. Even a modest adjustment, such as reduced hours or a short trial arrangement, may be important if it could have improved attendance and therefore avoided dismissal. Click to read more about the Cost of Ignoring Reasonable Adjustments at Work.
At Thrive Law, we regularly advise employers on disability-related absence, reasonable adjustments and fair capability processes. If you would like support reviewing your absence procedures or handling a complex case, get in touch with our team on enquiries@thrivelaw.co.uk for a confidential chat, or call us at 0113 869 8101.
Further Reading
The judgment
Ms Z Kitching v University Hospitals of Morecambe Bay NHS Foundation Trust: 2408953/2023 – available here.
This content is for information only and does not constitute legal advice.
