Zoe Kitching, an NHS worker battling complex mental health issues, accrued over 400 sick days in four years. Despite this, she successfully won a discrimination case after being dismissed from the job.
Kitching experienced several extended absences from work between 2019 and 2023 while grappling with ‘complex mental health issues,’ an employment tribunal heard. The cleaner at Royal Lancaster Infirmary faced a complex array of mental health challenges, including anxiety, depression, and bipolar disorder.
Dismissed Despite Medical Evidence
Despite ample evidence of her disability, health service leaders failed to acknowledge her condition and ultimately terminated her employment due to her absences. Employment Judge Childe expressed particular astonishment that an NHS executive maintained that Kitching was not disabled, a claim that eventually preceded her unjust dismissal.
‘We find that the [NHS trust] did not act reasonably in treating that as a sufficient reason for dismissing [Ms Kitching] in the circumstances,’ Judge Childe said. ‘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].’
The Manchester Employment Tribunal unequivocally condemned the decision to deny the cleaner disability status, deeming it both irrational and erroneous. The tribunal further emphasised that the cleaner should have been granted additional sick leave.
Kitching successfully sued University Hospitals of Morecambe Bay NHS Foundation Trust, the hospital’s operator, prevailing on claims of disability discrimination and unfair dismissal.
Tribunal Finds Disability Discrimination
Records indicate that Kitching, employed in the Lancaster Suite, stashed 406 absence days between 2019 and June 2023, the month of her dismissal. Of these absences, 85% were directly attributed to her disability, while 12% were due to non-disability-related factors, such as COVID-19 or common colds and flu.
One significant disability-related absence, from September 2020 to January 2021, extended for 130 days. The tribunal proceedings revealed that Kitching occasionally experienced severe mental health episodes, resulting in necessary time away from work.
Kitching formally requested a reduction in her working hours from her supervisor, Ruth Bradburn, the patient environment site services manager at the Lancaster Suite. However, Bradburn declined this request.
The tribunal discovered that despite Kitching’s prior recognition as disabled, the hospital received an occupational health report in January 2021 that inexplicably concluded she did not qualify as disabled under the Equality Act 2010.
Management Failures And Lack Of Support
Over the ensuing months, Bradburn held several meetings with Kitching to address her absences and establish performance targets to reduce her time away from work. While Kitching demonstrated a notable improvement in her attendance by June 2023, she was nonetheless dismissed by David Passant, the Divisional Manager of Facilities.
Christopher Brisley, the People & OD Business Partner, advised Passant that Kitching did not meet the disability criteria. In arriving at this decision, NHS management inexplicably relied solely on the January 2021 Occupational Health report, disregarding other compelling evidence that unequivocally demonstrated Kitching’s disability.
The tribunal proceedings revealed that Kitching felt her mental health disability had been consistently overlooked. ‘[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,’ the tribunal judgement said.
‘[Ms Kitching] 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.’
A Victory For Employee Rights
Judge Childe sharply criticised the managers, asserting that ‘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.’
‘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,’ he added. ‘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,’ the judge continued. According to a MailOnline report, the amount of compensation will be determined at a later date.
Buffy Byron
Read More