An employment tribunal has found that a former cleaner at Royal Lancaster Infirmary with complex mental health issues was unfairly dismissed and was discriminated against due to her disability.
Zoe Kitching had an array of mental health challenges, including anxiety, depression, and bipolar disorder, and experienced several extended absences from work between 2019 and 2023.
She took more than 400 sick days between this time, with 85% directly attributed to her severe mental health episodes. One absence lasted for 130 days, from September 2020 to January 2021. Kitching formally requested a reduction in her working hours from her supervisor, Ruth Bradburn, patient environment site services manager at the Lancaster Suite, but this was declined.
Despite Kitching being recognised as disabled, an occupational health report in January 2021 concluded that she did not qualify as disabled under the Equality Act 2010. Bradburn held several meetings with Kitching to address her absences and establish performance targets to reduce them.
While her attendance had improved by June 2023, she was dismissed by David Passant, the divisional manager of facilities, due to her absences. Christopher Brisley, people and OD business partner, advised Passant that Kitching did not meet the disability criteria based on the occupational health report.
Employment Judge Childe said: “We find that the [NHS trust] did not act reasonably in treating that as a sufficient reason for dismissing [Kitching] in the circumstances. At no time during the dismissal meeting or appeal meeting did the [NHS trust] agree that [Kitching] was a disabled person… which led to an unfair and fundamentally flawed and discriminatory decision to dismiss [her].
“[Kitching] asked for another chance and explained that her absences had been due to mental health. [Kitching] was extremely upset after the decision was taken at appeal not to overturn the original decision to dismiss. We find the [NHS trust] should have permitted a high level of sickness absence overall from [Kitching] and the failure to do so was a failure to make adjustments. The decision to deny that [Kitching] was disabled was irrational and wrong, given the medical evidence available to the contrary.”
Alison Balson, chief people officer at University Hospitals of Morecambe Bay NHS Foundation Trust, the hospital’s operator, added: “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.”
The compensation amount will be determined at a later date.
