An NHS cleaner who was sacked after taking more than 400 days off sick has won nearly £50,000 because an employment tribunal ruled that her employer failed to properly recognise her disability and did not make reasonable adjustments under the Equality Act 2010.

The case confirms that long term sickness absence, especially when linked to mental health, does not automatically justify dismissal if legal protections are ignored.

Key answer points:

• 406 total NHS cleaner sick days recorded between 2019 and 2023
• 85 percent of absences linked to recognised mental health disability
• Occupational health report disputed disability status
• Request for reduced hours refused
• Tribunal found failure to make reasonable adjustments
• Dismissal ruled unfair and discriminatory
• £49,147 compensation awarded for unfair dismissal and disability discrimination

What Happened in the NHS Cleaner Sick Days Case?

The NHS cleaner sick days dispute involving Zoe Kitching became one of the most discussed employment tribunal cases concerning long term sickness absence within the public sector.

The case revolved around 406 days of absence recorded between 2019 and June 2023 while she worked at the Lancaster Suite at Royal Lancaster Infirmary, part of the University Hospitals of Morecambe Bay NHS Foundation Trust.

Most of those absences were connected to complex mental health issues. Tribunal findings confirmed that approximately 85 percent of her time off was disability related. The remaining days were linked to non disability reasons such as Covid 19 and short term illness.

The central legal issue was not simply the volume of NHS cleaner sick days taken. The tribunal examined whether the employer correctly applied the Equality Act 2010, whether reasonable adjustments were considered properly, and whether the dismissal process met the standard of fairness required under UK employment law.

The employment judge found that the trust acted unreasonably and failed to acknowledge clear medical evidence of disability. The outcome was an award of £49,147 in compensation for unfair dismissal and disability discrimination.

To understand the scale of absence, the breakdown of recorded days was as follows:

Category of Absence	Number of Days	Percentage
Disability related mental health absence	345	85%
Non disability related sickness	49	12%
Other authorised absence	12	3%
Total	406	100%

The tribunal carefully reviewed internal documentation, occupational health reports, management meeting notes and medical records. The findings highlighted inconsistencies between management decisions and available medical evidence.

This NHS cleaner sick days case has since been referenced in wider discussions about public sector absence management, disability rights, and mental health protections in the workplace.

Why Was the NHS Cleaner Sacked After 400 Days Off Sick?

The dismissal followed several formal absence review meetings and capability assessments. Managers expressed concern about the sustainability of the absence levels and the impact on staffing operations within the facilities department.

During the monitoring period, Ms Kitching attended review meetings with her line manager Ruth Bradburn, Patient Environment Site Services Manager. Targets were set for reducing sickness absence levels.

Improvement was noted in the months leading up to June 2023. However, management concluded that the overall absence history justified termination of employment.

The decision to dismiss was taken by David Passant, Divisional Manager of Facilities, after consultation with HR. Christopher Brisley, People and OD Business Partner, advised that she was not considered disabled under the Equality Act 2010 at the time of dismissal.

This advice proved central to the tribunal’s reasoning.

Under NHS sickness absence policy, employers are permitted to manage persistent absence through a staged procedure. That procedure typically includes:

• Informal absence discussion
• Formal stage one review
• Formal stage two capability review
• Consideration of dismissal

The tribunal assessed whether these stages were applied proportionately and lawfully.

The trust relied heavily on a January 2021 occupational health report stating that she was not a disabled person within the meaning of the Equality Act. The tribunal later described this report as curious, particularly in light of previous classifications and extensive mental health documentation.

The employment judge concluded that the decision makers failed to evaluate the broader context of her condition.

Was Zoe Kitching Legally Disabled Under the Equality Act 2010?

What Did the Occupational Health Report Say?

The January 2021 occupational health report stated that Ms Kitching did not meet the statutory definition of disability. This conclusion appeared inconsistent with her medical history, including documented breakdowns and ongoing mental health treatment.

The Equality Act 2010 sets out a two part test:

Legal Requirement	Explanation
Substantial effect	The impairment must have more than minor impact
Long term effect	The impact must last or be expected to last 12 months or more

Mental health conditions such as anxiety disorders, depressive episodes and recurrent breakdowns frequently qualify where supported by medical evidence.

The tribunal found that there was significant evidence demonstrating long term adverse effects on her day to day functioning. The judge criticised the employer’s reliance on a single occupational health opinion without further investigation.

What Medical Evidence Was Available?

The tribunal reviewed medical certificates, GP letters, occupational health notes and internal records of previous disability classification.

Key findings included:

• Repeated episodes of mental health breakdown
• Extended periods of certified sickness absence
• Documentation confirming functional limitations
• Prior acceptance of disability status

The employment judge stated that the decision to deny disability status was irrational given the weight of medical evidence available at the time of dismissal.

This aspect of the NHS cleaner sick days dispute demonstrates how tribunals assess the totality of medical information rather than relying on isolated assessments.

Did the NHS Trust Fail to Make Reasonable Adjustments?

Reasonable adjustments form a cornerstone of disability protection under the Equality Act 2010. Employers must take reasonable steps to remove disadvantages experienced by disabled employees.

In this case, Ms Kitching requested a reduction in working hours to support her mental health. This request was declined. The tribunal considered whether this refusal constituted a failure to make reasonable adjustments.

Examples of reasonable adjustments in NHS settings include:

Type of Adjustment	Practical Example in Hospital Setting
Adjusted hours	Reduced shift length or part time schedule
Phased return	Gradual increase in duties after absence
Amended duties	Removal of high pressure tasks
Additional supervision	Regular wellbeing review meetings

The tribunal concluded that allowing a higher threshold of sickness absence or modifying hours could have been reasonable in the circumstances. Instead, the trust maintained standard absence triggers.

In reviewing this case, I considered the wider implications for public sector management. I said to a government employment standards professional during a discussion about similar tribunal rulings, “In my view, the proactive duty under the Equality Act requires employers to adjust not only working patterns but also absence expectations when disability is clearly established.”

The professional responded, “From a government compliance standpoint, we expect NHS trusts to interpret disability protections broadly where medical evidence supports long term impairment. Failure to explore workable adjustments increases litigation risk.”

I believe this exchange reflects the tribunal’s reasoning. The obligation to make reasonable adjustments is anticipatory and practical. It is not satisfied by simply holding review meetings.

The tribunal also noted that by June 2023 her attendance had improved. That improvement undermined the trust’s argument that dismissal was the only viable option.

Why Did the Employment Tribunal Rule It Was Unfair Dismissal?

What Did the Judge Say About the Decision?

Under section 98 of the Employment Rights Act 1996, employers must show a fair reason for dismissal and act reasonably in treating that reason as sufficient.

Capability due to ill health can be a fair reason. However, the process must be proportionate and informed by accurate information.

The judge found several failings:

• Failure to recognise disability status
• Over reliance on a questionable occupational health conclusion
• Insufficient exploration of adjustments
• Unreasonable weighting of historic absence despite improvement

The judgement stated that the trust did not act reasonably in treating absence levels as a sufficient reason for dismissal in the circumstances.

In discrimination claims, the tribunal must determine whether unfavourable treatment arose because of something connected to disability and whether that treatment was justified. The dismissal was directly linked to absence levels that were largely disability related.

This created a finding of discrimination arising from disability.

How Did the Appeal Process Affect the Case?

After dismissal, Ms Kitching exercised her right to appeal internally. The appeal upheld the original decision.

The tribunal accepted her evidence that she felt she had been dismissed twice. Emotional distress and injury to feelings were relevant when assessing compensation.

The appeal process was examined against the ACAS Code of Practice on Disciplinary and Grievance Procedures. While procedural steps were followed formally, the substantive issue of disability recognition remained unresolved.

How Much Compensation Was Awarded in the NHS Cleaner Sick Days Tribunal?

The total award of £49,147 reflected several heads of loss. Compensation in employment tribunal cases is not punitive. It is designed to restore financial position and compensate for discrimination impact.

The structure of awards in similar cases typically includes:

Head of Loss	Purpose
Basic award	Statutory calculation based on age and service
Compensatory award	Loss of earnings and benefits
Injury to feelings	Non financial harm in discrimination cases
Future loss	Anticipated ongoing impact

In disability discrimination claims, injury to feelings awards follow Vento guidelines. These bands vary depending on seriousness of harm.

Although exact internal calculations were not publicly itemised in detail, the combined total approached fifty thousand pounds.

This NHS cleaner sick days case demonstrates that public sector employers are not immune from significant financial consequences where discrimination findings are made.

What Does This NHS Cleaner Sick Days Case Mean for Other NHS Employees?

The ruling carries implications beyond one individual dispute. NHS trusts across the UK operate under structured absence management policies designed to balance operational needs with employee welfare.

However, this case highlights several broader principles:

• Long term sickness absence must be assessed in context
• Mental health conditions require sensitive evaluation
• Disability status cannot be dismissed without robust evidence
• Reasonable adjustments may include flexibility in absence triggers

In analysing this dispute, I reflected on the tension between workforce shortages and legal compliance. I said during my review of the case, “From my perspective, the challenge for NHS managers is balancing patient service demands with individual rights. But legal obligations under the Equality Act cannot be secondary to operational pressures.”

The same government employment standards professional commented in a separate discussion, “Where mental health evidence is extensive, dismissal decisions must be defensible against objective legal tests. Documentation and transparency are critical.”

This exchange underscores a key takeaway for NHS workers. Documentation of medical conditions, proactive communication and awareness of rights can significantly influence tribunal outcomes.

The case also reinforces the importance of:

Employee Action	Why It Matters
Keeping medical records	Supports disability status
Requesting adjustments formally	Creates documented trail
Engaging in review meetings	Demonstrates cooperation
Seeking ACAS advice	Clarifies procedural rights

Public sector employment law places high expectations on large institutions. Tribunals scrutinise decision making closely, particularly where discrimination is alleged.

The NHS cleaner sick days tribunal ruling illustrates that absence volume alone does not determine fairness. Context, medical evidence and adjustment efforts shape the legal outcome.

In employment law terms, the case stands as an example of how discrimination arising from disability interacts with unfair dismissal principles. Employers must justify decisions proportionately and consistently with statutory duties.

For NHS employees experiencing long term sickness linked to mental health, the case provides reassurance that tribunal systems examine evidence thoroughly. For managers, it serves as a reminder that procedural compliance alone is insufficient if underlying legal obligations are misunderstood or misapplied.

Conclusion

The NHS cleaner sick days case is not simply about 406 days of absence. It is about whether an employer lawfully recognised disability, made reasonable adjustments, and followed fair procedure.

The tribunal concluded that the NHS trust failed on those points. The refusal to acknowledge her disability, despite substantial evidence, ultimately led to a finding of unfair dismissal and discrimination.

For NHS employees and employers alike, this ruling reinforces an essential principle of UK employment law: long-term illness — especially mental health-related conditions must be handled with fairness, flexibility and legal compliance.

Where that does not happen, tribunals are prepared to award significant compensation.

FAQs About NHS Cleaner Sick Days

Can an NHS employee be dismissed for long-term sickness absence?

Yes, dismissal can occur if absence levels are unsustainable. However, employers must follow a fair process, consider reasonable adjustments, and assess disability status properly.

How does the Equality Act 2010 define disability in employment cases?

A disability is a physical or mental impairment with a substantial and long-term adverse effect on normal day-to-day activities. Mental health conditions can qualify.

What are reasonable adjustments in NHS roles?

Adjustments may include reduced hours, amended duties, phased return to work, additional support, or modified absence triggers.

Does an occupational health report decide whether someone is disabled?

No. While influential, a tribunal will consider all medical evidence. An occupational health opinion is not legally decisive.

How is compensation calculated in unfair dismissal cases?

Awards can include loss of earnings, future losses, and injury to feelings in discrimination claims. The exact amount depends on evidence and financial impact.

Can employees represent themselves at an employment tribunal?

Yes. Individuals are permitted to self-represent, although legal advice is often recommended.

What time limit applies to bringing a tribunal claim?

Most employment tribunal claims must be filed within three months less one day from the date of dismissal or discriminatory act, subject to ACAS early conciliation rules.