An NHS nurse has won a disability discrimination case after she was fired for taking too many days off work due to persistent migraines. Caroline McKenzie complained her severe headaches were exacerbated by PPE she was forced to wear at work during the pandemic.
The senior nurse, who had worked for her NHS trust for over a decade, also suffered from depression and was the sole carer for her elderly grandmother. But after failing to meet absence targets set by bosses, she was fired for taking too many days off.
A dismissal letter also suggested bosses didn't believe some absences were due to migraines and 'sinusitis' symptoms in March 2020. The latter is now believed to have been a symptom of Covid 19. However, an employment tribunal has now ruled Ms McKenzie was discriminated against and sacked due to her disability.
Her claims of unfair dismissal and failure to make reasonable adjustments also succeeded, and she is now in line to receive compensation. The tribunal heard Ms McKenzie began working for the University Hospitals of Leicester NHS Trust in November 2010.
She was later promoted to a 'Deputy Sister' role five years later. Her main duties involved the clinical care of patients on her ward and assisting the Ward Sister in some management duties.
From around August 2010, the panel was told Ms McKenzie began living with and caring for her grandmother who suffered from dementia. The tribunal, in Leicester, heard becoming her grandmother's 'de facto carer' took its toll on Ms McKenzie's 'stress and anxiety levels'.
An occupational health report from October 2017 concluded her stress was contributing to an 'increased frequency' in migraines she already suffered from. The tribunal heard Mrs McKenzie suffered from regular episodes of migraine attacks throughout her employment, which typically lasted between one and two days and resulted in absences from work.
She was prescribed medication for her migraines, but these had never proved particularly effective. Since 2010, she had been absent on nearly 300 workdays - the majority of which related to her migraines - and her absences during her 12 months at the Trust totalled 85 working days.
Around 2018, Ms McKenzie's grandmother was diagnosed with 'inoperable' cancer. Ms McKenzie began taking antidepressant medication and reduced her working hours.
During a capability meeting in April 2019 Mrs McKenzie explained to bosses her difficulties in balancing her work and home life, as well as 'managing her own mental health'. In September she began a long-term absence due to anxiety and depression until January 2019.
She attended another absence meeting in April when she was issued another written warning and set new absence targets. However, the tribunal heard she suffered more migraines and was absent for 19 days between June and November.
Another absence period in March 2020, originally described as 'sinusitis'. An antibody test taken later that year showed Ms McKenzie had the antibody for Covid and, as such, the tribunal ruled this absence should have been discounted.
Ms McKenzie also complained the type of PPE she was forced to wear for up to 12 hours contributed to the frequency of her headaches. She was then absent from December 2019 to March 2020 for depression, after she stopped taking her antidepressant medication and began suffering from withdrawal symptoms.
Following another absence hearing in May 2020 she was dismissed from her role, and lost her appeal against the decision. A letter sent to Ms McKenzie outlining the reasons for her dismissal 'questioned' whether recent absences had really been down to 'migraines and sinusitis'.
It also stated PPE masks she wore at work was essential and said she could have taken measures to 'minimise' the impact the equipment had. It concluded: "Despite the level of support, your absences have consistently fallen below the Trusts' targets and this is not sustainable moving forward.
"Having considered all the information presented, I concluded that your sickness absence levels continue to be unacceptable and are impacting the ward and your team and causing difficulties for your area."
Employment Judge Saleem Ahmed ruled the letter proved Ms McKenzie's dismissal was due to absences brought on by her disabilities. Judge Ahmed said: "[The dismissal letter] demonstrates the dismissal was, if not wholly then at least partly, due to Ms McKenzie not achieving attendance targets and/or because of her sickness record.
"We are therefore satisfied that the reason for her dismissal was for 'something arising' from her disabilities. Put in simple terms, Ms McKenzie had disabilities which caused her to absent from work and for which she was ultimately dismissed."
Ms McKenzie's claims of disability discrimination, failure to make reasonable adjustments and unfair dismissal all succeeded. A remedy hearing to decide upon compensation will now be held in due course.
