Lab Assistant Awarded £70K in Disability Discrimination Claim After Being Dismissed for Taking Sick Leave

In Mrs Victoria Ware v Frimley Health NHS Foundation Trust, a medical laboratory assistant won her disability discrimination claim after she was dismissed for regularly taking sick leave. Additionally, she received a poor reference from her ex-employer, which cost her a new role. Read on as we analyse what happened and the employment tribunal’s judgment.

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The Facts in Mrs Victoria Ware v Frimley Health NHS Foundation Trust

Background: Respondent Follows Their Sickness Policy

Mrs Victoria Ware (“The Claimant”) began working as a medical laboratory assistant for Frimley Health NHS Foundation Trust (“The Respondent”) on 8 August 2022. Before she commenced her employment, she informed the employer about her disabilities. Among them, she suffered from ME/CFS, fibromyalgia, functional neurological disorder, nonepileptic attack disorder, IBS, asthma and depression.

Prior to her start date, the claimant completed an Occupational Health (OH) questionnaire and attended an appointment. OH subsequently recommended the respondent allow her extra sick days, a wheelchair, and disabled parking to account for her conditions. When the report was sent to her manager, David Baulch, he said he was “happy to make the reasonable adjustments”.

Then, on 2 September, after the claimant started her employment, Mr Baulch completed a display screen equipment (DSE) assessment. The respondent’s health and safety advisor also assessed her workspace and recommended a sit-stand desk to accommodate her wheelchair use.

Claimant Regularly Taking Sick Leave

As expected, the claimant relied on taking sick leave several times throughout her employment. Her first sick days came about on 19 to 22 August before various other instances called for her to take time off. By November, this totalled 18 sick days relating to her disabilities.

On 21 October, Mr Baulch told the claimant that if she called in sick but “felt well enough to do some work from home,” she could do so. He also mentioned that she could work from home on Tuesdays and Wednesdays going forward to help lessen her commuting fatigue.

Unfortunately, despite being delivered in November, the sit-stand desk wasn’t set up. Mr Baulch wanted a desk for all employees, and the additional set-up required more work. None of the other employees required the desk as a “reasonable adjustment,” though, and the delay impacted the claimant.

Probationary Period Extended

As the New Year came around, Mr Baulch requested assistance from the respondent’s HR. The claimant’s probationary period was due to end on 7 February 2023, and he wanted advice concerning her reliance on taking sick leave. When HR responded, they advised him to extend her probation by three months. This was communicated to the claimant on 26 January before she took further time off in February and March.

Then, on 21 March, the claimant learned that her work-from-home days had been altered to Tuesdays and Thursdays due to a colleague’s personal commitments. The following day, she also discovered three sit-stand desks had been installed, but she couldn’t always use them due to availability.

As the claimant’s probation was approaching its end, the respondent extended it by another month. This was because she had been re-referred to OH, and the referral was still in progress. She then relied on taking sick leave again in April and May, taking her total to 29.5 sick days.

Claimant Dismissed After Taking Sick Leave Too Often

On 12 May, a probationary review determined that the claimant would be dismissed due to her sickness levels. While it was accepted that most of her absences resulted from disability, the respondent believed some didn’t. Consequently, she received one week’s pay in lieu of notice, and her employment was terminated that day.

The claimant subsequently appealed her dismissal on 19 May, and a hearing was held on 6 June. During the proceedings, the respondent asked what adjustments could be made to prevent her from calling in sick as regularly. She asserted a permanent sit-stand desk and reduced hours would benefit her, but the respondent claimed “all reasonable adjustments had been made” and dismissed her appeal.

Discrimination Claims Brought 

After being sacked, the claimant found employment elsewhere at Nuffield Health. Unfortunately, when a request for references was made, the respondent mistakenly overstated her reliance on taking sick leave and stated her “level of honesty and integrity was ‘acceptable’”.

Although “acceptable” may not sound bad, it was below excellent and good, making it a low assessment. This was surprising, especially since the respondent had never highlighted concerns about the claimant’s behaviour. Upon receiving this poor reference, Nuffield Health withdrew their job offer and informed the claimant why.

After discovering that the respondent had squandered her job opportunity, the claimant began ACAS early conciliation on 9 June. On 23 June, she presented claims of direct discrimination, discrimination arising from disability, and failure to make reasonable adjustments before an employment tribunal.

The Employment Tribunal’s Judgment

Following proceedings, the employment tribunal addressed the claim of discrimination arising from disability. This referred to the claimant’s dismissal, which arose from her taking sick leave too often. Since her disabilities largely caused her absences, the tribunal found this reasoning amounted to unfavourable treatment.

In an attempt to justify the dismissal, the respondent argued the decision arose to achieve legitimate aims, including the efficient delivery of services and cost management. However, these aims couldn’t be achieved through dismissal, as it would reduce the workforce available to deliver services and incur additional costs for hiring and training a replacement.

Furthermore, even if a legitimate aim could be found, the tribunal ruled the dismissal disproportionate. Among other things, this was because:

  • Despite the recommendation, the respondent didn’t provide the sit-stand desk for several months, worsening the claimant’s symptoms.
  • Absences during the initial probation period were taken into account, despite assurances that they wouldn’t have repercussions.

The tribunal concluded that the dismissal had a discriminatory impact on the claimant and was unjustified. Consequently, the complaint of discrimination arising from disability succeeded.

Then, the tribunal turned to the claim of direct disability discrimination relating to the post-employment reference. They highlighted how it overstated her sickness absences and rated her “honesty and integrity” poorly without solid evidence. While the tribunal found the sickness absence figure to be a mistake unrelated to disability, the honesty and integrity assessment lacked a valid, non-discriminatory explanation and was influenced by the claimant’s disabilities. As a result, this claim also succeeded.

The remainder of the claims presented were dismissed; however, since the claimant succeeded in part, a remedy hearing followed. During this hearing, the tribunal awarded £70,942.84, which comprised loss of earnings and injury to feelings.

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