Disabled Lancaster hospital cleaner ‘unfairly sacked’ over sick leave, tribunal rules

Zoe Kitching, who has bipolar disorder, took sick leave for a total of 406 days between 2019 and 2023.

The cleaner had "complex issues" including anxiety and depression and argued that her absences were due to the disability.

She was dismissed by divisional manager of facilities David Passant at a disciplinary meeting in June 2023 "because of the totality of [her] historic absences from the start of her employment in 2019 to 27 June 2023".

Ms Kitching continued to work as bank staff until August 2023. She appealed the dismissal but was unsuccessful and subsequently brought an employment tribunal claim against University Hospitals of Morecambe Bay NHS Foundation Trust, which runs the Royal Lancaster Infirmary.

She said most of her absence (about 85%) related to her mental health conditions and that insufficient account was taken of the causes of these absences and/or alternatives to dismissal.

Ms Kitching was told she could reduce her hours, but would have to move to a different part of the hospital site, which she said she would find more anxiety provoking.

Ms Kitching had been employed as a cleaner since September 2018, and was seen as a good worker and well-regarded in her role.

The tribunal’s ruling concluded that it had been “irrational and wrong" to deny Ms Kitching of her disability status.

Employment Judge Childe said the panel was "particularly surprised" that one boss insisted Ms Kitching was not disabled, saying: "We find that the respondent [UHMBT] did not act reasonably in treating that as a sufficient reason for dismissing the claimant in the circumstances.

"At no time during the dismissal meeting or appeal meeting did the respondent agree that the claimant was a disabled person, which led to an unfair and fundamentally flawed and discriminatory decision to dismiss the claimant."

There was a wealth of medical evidence available that the claimant was a disabled person, within the meaning of the Equality Act 2010, and as such, the decision to deny that the claimant was disabled was “irrational and wrong”, given the medical evidence available to the contrary.

The tribunal was told that the dismissal had a negative impact on Ms Kitching’s mental health and wellbeing, in significant part because she considered she was not heard or understood as a disabled person, and nor were her disabilities taken seriously.

The tribunal judgement said: "The claimant was extremely upset by the decision to dismiss her and the refusal of Mr Passant to recognise that the claimant was a disabled person as defined under the Equality Act 2010.

"The claimant asked for another chance and explained that her absences had been due to mental health. The claimant said it was unnecessary for her to lose her job.

"The claimant was extremely upset after the decision was taken at appeal not to overturn the original decision to dismiss. We've accepted the claimant's evidence that she felt that she had been dismissed twice."

Alison Balson, chief people officer at UHMBT, said: "We respect the findings of the tribunal and will look at what lessons can be learned. We want to apologise to Ms Kitching for any distress caused."