Nurse suffering from depression wins case for disability discrimination (Ms CC McKenzie v University Hospitals of Leicester NHS Trust – 2603829/2020

In the case of Ms CC McKenzie v University Hospitals of Leicester NHS Trust 2603829/2020 Ms McKenzie was successful in her claims against her employer in both her claims for disability discrimination and unfair dismissal after she was dismissed for performance-related absence.

The facts in Ms CC McKenzie v University Hospitals of Leicester NHS Trust

Ms McKenzie began her employment with the University Hospitals of Leicester NHS Trust in November 2010 as a Band 5 staff nurse and was then promoted to a Band 6 Deputy Sister role in December 2015.

Ms McKenzie had lived with her grandmother who suffered from dementia, since 2010, and in 2011 her grandmother’s dementia deteriorated and she was diagnosed with Alzheimer’s and was unable to look after herself. From this point, Ms McKenzie became her main carer.

The burden and responsibility of caring for her grandmother began to have an adverse effect on her own health and she began to suffer from stress and anxiety and increased the level migraine attacks, a condition she was already suffering from. This was confirmed in an occupational health report of 18 October 2018.

Ms McKenzie’s grandmother was diagnosed with inoperable cancer sometime in 2018.  Her aunt moved in at this time but unfortunately had to leave due to her own medical condition.  Her grandmother’s condition worsened also suffering mobility problems.  In around November 2018 Ms McKenzie began taking antidepressant medication.

Ms McKenzie suffered regular episode of migraine attacks during her employment which resulted in her being absent from work, usually one of two days which the employer was aware of. She was treated with medication for both her migraine attacks and depression.

In November 2013, Ms McKenzie was issued with a first written warning for 4 period of absence mainly related to migraine attacks.

In September 2014, Ms McKenzie was issued with a first formal warning for breaching her target of more than one episode of sickness.

In March 2017, Ms McKenzie was issued with a final written warning for 4 absences that totalled 5 days in the previous 12 months, for stress related reasons.

In September 2018 Ms McKenzie  was absent on long term sickness absence due to anxiety and depression until 21 January 2019.  She reduced her hours by agreement with her managers through a flexible working arrangement.

On 12 March 2020 Dr Kneale, Consultant Occupational Health Physician, produced an OH report for Ms McKenzie. Amongst other things these recommended a phased return to work at a temporarily downgraded Band 5 role to be reviewed after 3 months.

On 22 May 2020, following a Level 3 sickness absence meeting, Ms McKenzie was dismissed through an outcome letter sent to her on 29 May 2020.

Ms McKenzie appealed against the decision to dismiss her. Following an appeal hearing on 21 July 2020 chaired by Ms Jo Hollidge, Head of Nursing, her appeal was dismissed.

On 16 October 2020 Ms McKenzie brought an Employment Tribunal claim for disability discrimination and unfair dismissal to an employment tribunal.

The decision of the Employment Tribunal 

Disability discrimination

Discrimination arising from disability

On the matter of discrimination arising from disability, the Employment Tribunal found in favour of Ms McKenzie as her absence from work was because of her disability, in her case stress/anxiety/depression or migraines which caused her high sickness levels, and she had been dismissed because of her absence levels. This was therefore a breach of section 15 (1) Equality Act 2010 and amounted to disability discrimination.

Failure to make reasonable adjustments

In the case of the duty to make reasonable adjustments, the following were found to be examples of some reasonable adjustments the employer could have made but failed to:-

• Not to dismiss and instead extend her period of employment;
• Discount disability-related absences for her period of sickness absence;
• Disregarding the impact to wear PPE equipment on migraine and sickness absence in March 2020;
• Following the OH report recommendation for a phased return in her current grade rather than demotion to Band 5.

Unfair dismissal

The Employment Tribunal found in favour of Ms McKenzie’s claim for unfair dismissal. The employer had failed to act on the recommendations of the OH report and make the appropriate adjustments to enable her to return to employment via a phased process, and the  overall prognosis of the Claimant’s mental health was positive.

The Employment Tribunal  concluded that the decision to dismiss by reason of capability fell outside the band of reasonable responses open to a reasonable employer and was unfair for the purposes of section 98(4) ERA 1996.

Remedy

The Employment Tribunal scheduled a further hearing to deal with remedy (i.e. how much Ms McKenzie would receive in compensation).

Our lawyers’ views on the case

Caroline Lewis, a solicitor at Redmans, commented on the case: “This case shows the risk for the employer of not adhering properly to the law set out in the Equality Act 2010, and indeed their own policies*, when it comes to making meaningful reasonable adjustments that, recognise and accommodate an employee’s particular disability or disabilities.”

* For absences due to a chronic underlying health condition, in accordance with the employer’s obligations under the terms of the Equality Act 2010 managers must consider reasonable adjustments as outlined in Section 5.16 – e Respondent’s Absence Management Policy (‘AMP’).

The decision of the Employment Tribunal in Ms CC McKenzie v University Hospitals of Leicester NHS Trust – 2603829/2020 can be found here.