AN NHS hospital cleaner who was sacked after being off sick more than 400 days in just four years has won £50,000 in compensation.
Zoe Kitching had several lengthy periods of sick leave from 2019 to 2023 as she struggled with “complex mental health issues”.
However, even with an abundance of evidence, health service managers neglected to acknowledge that Ms Kitching had a disability and terminated her employment due to her absences.
An employment judge said they were “particularly surprised” that one NHS boss insisted she was not disabled ahead of her unfair sacking.
The tribunal determined that it was illogical and unjust to reject Ms Kitching’s disabled status and that she was entitled to additional sick leave.
Ms Kitching, employed as a cleaner at Royal Lancaster Infirmary, won her case against the trust overseeing the facility, University Hospitals of Morecambe Bay NHS Foundation Trust.
Representing herself at the hearing in Manchester, she won claims of disability discrimination and unfair dismissal.
Now she has been awarded £49,147 in damages.
The tribunal was told Ms Kitching worked on the Lancaster Suite at Royal Lancaster Infirmary.
She suffered with anxiety, depression, and was bipolar, it was heard. Her issues were described as “complex”.
Hospital records show that from 2019 until June 2023 – when she was sacked – she had a total 406 absence days.
Of the 406 days, 85 per cent were connected to her disability and 12 per cent were due to non-disability related reasons, such as Covid-19 or general cold and flu.
One period of disability-related absence, from September 2020 to January 2021, lasted for 130 days.
Ms Kitching sometimes suffered breakdowns which led to having time off, it was heard.
She asked her manager Ruth Bradburn if she could cut down her hours at the Lancaster Suite, but Ms Bradburn refused the request.
Although she had previously been classified as disabled, in January 2021 the hospital received an occupational health report which ‘curiously’ stated she was ‘not a disabled person within the meaning of the Equality Act 2010’, the tribunal found.
Over the following months, Mrs Bradburn – Patient Environment Site Services Manager – held meetings with Ms Kitching over her absences and set her targets to reduce days off.
By June 2023, her absences had improved, but she was sacked by David Passant, Divisional Manager of Facilities.
Christopher Brisley, People & OD Business Partner, told Mr Passant that Ms Kitching was not disabled.
It was heard the NHS managers only took the January 2021 Occupational Health report into account and ignored other obvious evidence that Ms Kitching was disabled.
Ms Kitching felt her “mental health disability had been ignored”.
The tribunal judgement said: “[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.
“[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.”
Employment Judge Robert Childe criticised the managers, saying “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”.
Judge Childe said: “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.
“We find that the [NHS trust] did not act reasonably in treating that as a sufficient reason for dismissing [Ms Kitching] in the circumstances.
“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].
“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.”
