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NHS Trust Failed Disabled Nurse with Absence Management Policy

NHS Trust Failed Disabled Nurse with Absence Management Policy

Date: 16th May 2018 | Categories: Employment law

In the recent case of Sutton v Sheffield Children’s NHS Foundation Trust with the judgement being published in March 2018 which dealt with claims of disability discrimination and unfair dismissal the Employment Tribunal ruled that the dismissal was disproportionate and the absences were mainly as a result of disability. Furthermore they had failed to consider reasonable adjustments as part of their absence management policy.

absence management policy

Background to the Case

The employee was a nurse with an exemplary 20 year record of service.

The trust had an Absence Management Policy which it applied to all its employees and in this case the employer applied its policy in such a way that it placed the employee at a substantial disadvantage as a disabled person. Being placed under a substantial disadvantage triggered the employer’s legal duty to make reasonable adjustments to the way the policy was applied to the employee, which it failed to do.

The Trust’s Absence Management Policy identified two types of absence – short term and long term. In their short term absence policy there was a requirement to set an absence target of 5% for employees with reviews every 4 months over a 12 month period. There was also no reference to the employer’s duty to make reasonable adjustments for a disabled employee. The Trust’s long term policy, apart from being moot on the point of absence targets, also explicitly mentioned the duty to make reasonable adjustments, examples of potential adjustments included “modifying procedures”.

The employee was absent because of sickness relating to her conditions from September 2014 to October 2015. Her line manager dealt with her under the short term absence process; the absence target was set at 5% for the period to March 2016. The manager was fully aware of the employee’s conditions since 2013 but failed to make any Occupational Health referrals until her post was taken over by her maternity leave cover acting Ward Manager in Nov 2015. At that point the acting Ward Manager set an absence target of 10% from March to June 2016.

Were Achievable Absence Targets Set?

Occupational Health advice was received but not considered or actioned until a follow up absence review meeting in May 2016 which showed that the claimant was over the target of 10% absence for the period of March to June 2016 by 0.96%.

A further 10% absence target was set for July to October 2016 with a further Occupational Health report received in September 2016 advising that the best way to manage the absence was not to schedule the employee to work around her period (due to her endometriosis) and to continue to adjust absence targets.

The employee was dismissed in December 2016 with the reason given that her absence targets could not be extended any further. Following an unsuccessful appeal the employee brought a claim for unfair dismissal and disability discrimination, specifically failure to make reasonable adjustments and detrimental treatment arising from a disability.

absence management policy

Why did the Claimant Win?

In his judgement Judge Rogerson said Sutton’s unfavourable treatment was the consequence of the employer’s failure to make reasonable adjustments and detrimental treatment arising from the disability in relation to her dismissal. In particular, the Judge found that the trust should have managed the employee as a “disabled employee with the knowledge and understanding that the majority of her absences were as a consequence of her disability”. He ruled that her dismissal was not justified and was disability discrimination.

In this case the employer had failed to take into account its knowledge of the employee’s disabilities at the time of the dismissal and of a more positive prognosis that the attendance had improved and could be maintained with the reasonable adjustments. The Judge ruled that the dismissal was unjustified as it was not proportionate for the employee to be dismissed in these circumstances.

The employer has confirmed that they will not be appealing the decision and have accepted the findings. The employee’s employment is being considered to be re-instated in a new role that allows both parties to balance the need for delivery of service with employee’s welfare.

The above serves to illustrate that even following an Absence Management Policy could render a dismissal unfair if all the evidence is not considered holistically and the employer fails to consider reasonable adjustments as part of the process of managing absence.

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