Hellloooo you lovely lot!
So, I’m pulling an Emma and am late in this week’s blog- really sorry! My week started off with surviving a sickness bug that our beautiful Halle brought us from nursery (such a lovely Christmas present) and then we also had doctors trip for her infected eye. So, my week really did start off with me in a bit of a tizz. Does anyone else feel that if their weeks start off messy, it then seems to determine the way the rest of your week is going to be?
Anyways, enough of the bah humbug! What things have been going off for me this past week?
- Halle took down both my family and my husband, James’, family with a sickness bug- such a little thing but such a force.
- We heard another first word for Halle- balllll.
- Precept had their lovely Christmas lunch,
- We experienced our very first stay and play at nursery- which essentially involved parents being able to go to play with their child for an hour in their nursery setting. This was very cuttteeee… but also ended up with me essentially helping them to look after the other kids haha.
- Doing a mass panic buy of Christmas presents and writing Christmas cards- one word… anxiety.
- Failing to see Wicked for the 2nd time due to illness- yes.. you heard that right.. … I … still… haven’t.. seen…. It.
Right, you are fully up to date on all things me so, let’s crack on with the legal stuff.
You might have seen in the news that a cleaner who was employed by the NHS has just won claims for unfair dismissal and disability discrimination against her employer, despite having taken over 400 days off sick due to mental health issues. Hooowww… I hear you ask? Well, there are some really key lessons to learn here for employers, so keep on reading!
The facts of the case are as follows:
- Ms Kitching, the employee, struggled with complex mental health conditions including bipolar disorder, anxiety, and depression;
- Over a 4 year period, due to these conditions, she accumulated 406 days of sickness absence across 29 instances;
- Ms Kitching’s conditions were well documented with her employer and there were Occupational Health (OH) reports from as early as August 2019 that confirmed she was disabled under the Equality Act 2010;
- Despite of all this medical evidence, her line manager, and senior decision makers, repeatedly failed to acknowledge her disability; and
- Ms Kitching was dismissed in June 2023 following a formal absence management meeting.
The Tribunal decided that in this case the Trust had unfairly dismissed Mr Kitching and that they were liable for disability discrimination. In fact, they went so far as to say the Trust’s handling of this case was “fundamentally flawed” (ouch!)
They based their decision on the following:
- The Trust (including Ms Kitching’s line manager, the senior manager who dealt with the formal absence management meeting and the senior manager who oversaw the appeals process) had failed to acknowledge that Ms Kitching had a disability and came in for heavy criticism because of this – this failure to acknowledge a disability was despite the fact that OH had confirmed this and that all of Ms Kitching’s sick notes outlined the fact her absences were as a result of her mental health conditions;
- The Trust had failed to make reasonable adjustments that could have enabled Ms Kitching to keep on working. This was even after Ms Kitching had suggested reducing her hours or shifts, which the Tribunal agreed would have helped to improve her attendance. In fact, Ms Kitching continued to work for the Trust as bank staff after her dismissal and without any notable absences. The tribunal felt this evidenced that a change or reduction in hours could have allowed her to remain employed;
- The Tribunal said that the Trust should have permitted a high level of sickness absence overall from Mr Kitching and the failure to do so was another failure to make adjustments.
The above is a stark reminder for employers to ensure they are and can effectively manage sickness absence or they may be opening themselves up to serious legal implications (we’re still waiting to hear what compensation Ms Kitching will be awarded but it could be substantial given how scathing the Tribunal were of the Trust).
As we are Precept… and we always love to give a helping hand… below I’ve popped some of our big tips to ensure you are well and truly on this:
- Ensure you have a robust absence or ill health capability policy in place.
- Ensure there is effective training available for managers so they know how to apply policies consistently, what steps to take and how to deal with sensitive situations- Precept can help with this.
- Communication- ensure that you are providing a place in which the employee feels they can speak to you should they be struggling with anything. They may suggest adjustments that they feel will help them and you should absolutely take this into consideration.
- If medical evidence is received, ensure you review any comments/advice carefully so you can work with the employee with any needs they may have. Don’t just ignore what the experts say!
- Regular check ins are so important- particularly if you know an employee is having regular sickness related absence. See if they are ok and need any extra support from you in anything
- Have return to work meetings- these can help you to identify the best way to manage sickness absences and give you another opportunity to check in on the employee and if they need any extra support or if adjustments would be reasonable to make.
- Make your assessments on a case by case basis- each employee will have different circumstances and situations that will be causing their absences. Whilst you have to use the absence policy consistently, a way forward that might work for one person may not ways work for another.
What I don’t want you to think is that, in every scenario, you have to tolerate absences as high as 400 days. Absolutely not! It’s just that it’s really important that you properly engage with the employee and actively manage the absence, looking at what steps you can reasonably put in place to support them in maintaining sustained attendance at work. The above isn’t the only help Precept can provide- IN FACT– why don’t you join us at our next event on 15 January 2025 where we will be providing our expertise on exactly this topic- how to effectively manage sickness absence! CLICK HERE TO VIEW AND BOOK. It’s like I planned this isn’t it? Go on you know you want to join- start off the year getting all your ducks in a row.
If you have any questions on the above then feel free to give me a shout, or better yet, come join us at our event and ask away.
In the meantime though, I hope you all have a very merry Christmas & a Happy New Year!
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