They failed to properly consider the option of redeployment despite this being the advice given in the Employee’s occupational health report. In making its decision, the tribunal found that the Trust did not properly consider the Employee’s past medical records and the advice it received from occupational health. Her appeal was also dismissed.ĭecision: The tribunal found that dismissing the Employee with migraines was not reasonable. ![]() In May 2020, the Employee was dismissed on the grounds of ill-health capability. In summary, the Employee absences at this stage were eight times higher than the NHS Trust’s target. The first absence related to Covid and the second to migraines. Upon her return to work, she had two more sickness absences. Occupational health recommended a phased return to work and suggested that if she was not successful after three months then a temporary redeployment to a lower banded role would be the best way forward, amongst other recommendations. From December 2019 until March 2020, the Employee took more sick leave for anxiety and depression because she was suffering from withdrawal symptoms from trying to come off her antidepressant medication. This absence coincided with her grandmother’s terminal diagnosis. The Employee took long-term sickness absence from September 2018 until January 2019 which led to a final written warning. On that occasion the Trust re-issued a first written instead of a final written warning. As a result of absences in the latter part of 2017 and early 2018, the Employee had breached her targets and as a consequence, she was required to attend a Level 2 hearing in March 2018. In 2018 the Employee reduced her hours by agreement through a flexible working arrangement. There were three occupational health reports in that year and in addition to the other absences, the Employee also had a lengthy absence for a fractured ankle which required surgery. Later in 2017, the Employee was referred to occupational health on various occasions. The Employee’s sickness absence in this instance related to stress at home. Unfortunately, her absence levels deteriorated again, and she received a written warning in March 2017 after recording four absences totalling five days in a 12-month period, triggering the organisation’s absence management procedures. The Employee met this target in 2015 and so the warning expired. In September 2014, she received a first written warning and the Trust put in place new absence targets. Most of her sickness absences up to this time related to her migraines. In November 2013, the Employee was given a first written warning for her sickness absences. This impacted her mental health significantly and she started taking anti-depressants in November 2018. The Employee was therefore effectively a full-time carer when not working. Outside of work, the Employee lived with her grandmother who had dementia and inoperable cancer. This was worsened by having limited opportunity to drink water given the pressure on the NHS at the time. ![]() During the Covid-19 pandemic in particular, the Employee’s had been exacerbated by the wearing PPE for long periods on wards. The Employee suffered from migraines and had done for some time. The tribunal found that both migraines and her depression and anxiety constituted disabilities under the Equality Act 2010. ![]() While employers should have a sickness absence policy in place, it is important that they continue to manage situations individually. This case illustrates the importance of managing employee absence correctly and fairly.
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