Chronic fatigue sufferer wins unfair dismissal claim

An occupational therapist who lost her job after years of suffering from chronic fatigue syndrome has won her claim of discrimination and unfair dismissal.

Ms D Ward had worked for Northumberland Tyne & Wear NHS Foundation Trust since 2000.

The trust operated a sickness and absence management policy under which employees faced disciplinary action if they had more than three absences from work in a 12-month period.

In 2009, Ward was diagnosed with chronic fatigue syndrome. As that disability meant she was more likely to have higher absences than other employees, the trust extended the limit to five in her case before the disciplinary procedure was triggered.

For nearly four years, she worked without activating that extended trigger. However, in 2015 the trust removed the extension and applied its standard policy to her attendance.

It adjusted her workload and hours, but her periods of absence over the next two years exceeded the attendance policy and the trust dismissed her in 2017 at the end of its four-stage disciplinary procedure.

She brought claims of unfair dismissal and disability discrimination to the Employment Tribunal, which found in her favour.

It held that in removing the extended trigger, the trust had failed in its obligation under the Equality Act 2010 to make a reasonable adjustment for her condition.

It also found that the trust had discriminated against her because of her disability and that her dismissal was unfair.

The Employment Appeal Tribunal upheld that decision. It held that the tribunal was entitled to conclude on the evidence that the unfavourable treatment meted out to Ward, including her dismissal, was for reasons related to her disability.

It was hard to see how the dismissal could be justified when all that had been needed to avoid it was the extended trigger adjustment, which had already been in place for a number of years without any difficulty and was removed without any particular need for it to cease.

If you would like more information about the issues raised in this article or any aspect of employment law please contact Joanne on 01228 516 666.

By Joanne Stronach Head of Employment & HR