All absences are not equal: why employers must treat persistent short-term absences on a case-by-case basis

A recent Employment Tribunal decision in Ms Z Kitching v University Hospitals of Morecambe Bay NHS Foundation Trust (the Trust) held that Ms Kitching’s dismissal was unfair and discriminatory despite her being absent for 406 days on 29 occasions. Ms Kitching was awarded almost £50,000. This case highlights the importance of employers managing intermittent sickness absence with care and diligence.

The facts

Ms Kitching was employed as a cleaner at the Trust from September 2018 until her dismissal in June 2023. During the course of her employment, she had significant periods of sickness absence. 

Ms Kitching requested adjustments to her work patterns (reducing her shift hours and/or days) to accommodate her mental health conditions (bipolar disorder and anxiety), which she said would improve her attendance. The requests were denied.

The Trust’s absence policy contained trigger points, with absence exceeding those limits triggering formal absence management steps and, ultimately, possible dismissal. The Trust’s policies did, however, allow for some flexibility for managing sickness absence relating to a disability . Managers were directed to the requirement to consider reasonable adjustments, including (but not limited to) adjusting hours and working patterns. The Trust failed to recognise that Ms Kitching was disabled and dismissed her based on her historic sickness absence. 

The decision

The Tribunal found in favour of Ms. Kitching on all of her complaints:

1. Unfair dismissal

The Tribunal found that Ms. Kitching’s dismissal was unfair, saying that the Trust’s decision to dismiss was “fundamentally flawed and discriminatory”. The Tribunal found that there was a wealth of medical evidence confirming Ms. Kitching’s disability, and that the decision to deny that Ms Kitching was disabled was “irrational and wrong”. It added that “there was a complete lack of an enquiring mind into whether the claimant was disabled or not”. The Tribunal went on to find that there was no chance that Ms Kitching would have been fairly dismissed anyway if a fair procedure had been followed. 

2. Failure to make reasonable adjustments for disability 

The Tribunal found that the Trust failed to make reasonable adjustments, such as (i) reducing Ms Kitching’s shift hours and/or days in order to improve her attendance, (ii) adjusting sickness absence triggers (by permitting Ms Kitching to have a high level of absence under the Trust’s policy) and (iii) permitting a higher level of sickness absence overall.

3. Unfavourable treatment due to disability

The Tribunal found that 85% of Ms Kitching’s absences between 2019 and 2023 were connected to, or arose in consequence of, her disability. It found that dismissal was not a proportionate means of achieving a legitimate aim and said that to dismiss Ms Kitching purely because of her history of absences, rather than the likelihood or propensity for future absences, could not be justified. The Tribunal noted that there were more proportionate and less discriminatory steps open to the Trust, such as retaining Ms Kitching with certain conditions attached to her continued employment, which they failed to take.

Ms Kitching was awarded £49,147.50, including £32,500 for injury to feelings (in the upper Vento band at the applicable time).

Our top tips for effectively managing an employee with persistent sickness absence:

1. Is absence disability-related?

Employers should consider whether an employee is disabled under the Equality Act 2010. If there are persistent periods of intermittent absence, ask yourself: what might be behind the employee’s absence? Are there any patterns to the absence?

2. Medical evidence

Employers should seek, and carefully consider, medical evidence relating to the employee (for example fit notes or Occupational Health reports). Ensure you have up to date medical evidence – particularly before a decision to dismiss – as an employee’s health may have changed and new conditions may have arisen or their prognosis may have improved.

3. Recognise and record different types of absence

A distinction should be made between absence related to general illness and that related to disability. Different types of absence should be recorded clearly, and employers should consider carefully what absence relates to an employee’s underlying health condition(s).

4. Reasonable adjustments

The Equality Act 2010 imposes a duty on employers to make reasonable adjustments for employees with disabilities. Employers should always consider what reasonable adjustments can be made to support an employee’s return to work. As above, up-to-date Occupational Health advice can assist with this. For more information, see our blog: Building inclusive workplaces: reasonable adjustments.

5. Provide options

Consider reasonable adjustments or alternatives that might mean the employee can continue to work effectively and reduce their absence. Such adjustments might include:

• reducing the number of hours worked;
• amending any relevant work rotas;
• considering shorter shifts;
• amending working patterns; or
• redeployment.

6. Consult policies

Relevant policies should be considered and adhered to.

7. Keep records on all discussions and decisions

Ensure you have contemporaneous notes of conversations and the rationale for decisions, particularly when considering alternatives to dismissal and evidencing why those alternatives are not possible.

With thanks to Eloisa Clegg, trainee, for her help in drafting this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2025