The Claimant, Miss Butunoi, was employed by Nurture Chiropractic Clinic (“NCC”), as a Soft Tissue Therapist between 13 November 2020 and 4 November 2022 when she was dismissed on ill-health grounds.
NCC dissolved in January 2024. Dr Turner, an employee, statutory director and shareholder of NCC, registered Turner Health Group (“THG”) the day after NCC was dissolved, listing herself as a director. In practice, Dr Turner managed NCC daily.
Given that NCC had been dissolved, the Claimant pursued claims against both Dr Turner personally and the new company set up by her, THG (collectively “the Respondents”).
In May 2021, the Claimant hurt her right wrist lifting a heavy bag of soil at home and was later diagnosed with tendonitis of the wrists and deemed unfit for work.
The Claimant remained absent from work but in August 2022 her GP confirmed that she “may be fit for work with adjustments” because of “left wrist pain”. The adjustments stated in her GP Fit Note were “regular breaks”.
NCC refused the Claimant’s request for ten-minute breaks between massage clients stating accommodation of the adjustment would “put the business at risk” due to NCC depending on “being able to deliver a reliable efficient service to clients at times convenient to them.”
The Claimant was later dismissed with NCC stating “We simply have no confidence that….you would be able to attend work here, regularly and reliably…”.
The Claimant brought claims for:
- direct disability discrimination;
- discrimination arising from disability;
- failure to make reasonable adjustments; and
- unauthorised deduction from wages.
She relied on her painful left wrist, anxiety, depression and endometriosis as her disabilities for the purposes of the Equality Act 2010.
Dr Turner had knowledge of the Claimant’s disabilities, a key requirement of any disability discrimination claim.
Tribunal findings
The Tribunal dismissed all claims against THG on the basis that the Claimant had never been employed by THG. As such, they only considered acts for which Dr Turner could be held personally liable.
The condition of the Claimant’s wrist was found not to constitute a disability for the purposes of the Equality At 2010. The Tribunal did however find that the Claimant’s endometriosis constituted a disability due to the substantial adverse effect on her ability to carry out day-to-day activities.
The Tribunal awarded £10,000 as the compensatory award and £16,800 for injury to feelings.
Direct Discrimination
The Tribunal found that Claimant’s claim of direct disability discrimination was not well founded and did not succeed. The Tribunal held that the Claimant was not treated less favourably and wasn’t dismissed due to her disability, but rather she was dismissed due to her absence (which arose as a result of her disability / endometriosis) and the lack of certainty around her return.
Discrimination Arising from Disability: Section 15 Equality Act
The Tribunal upheld the claim of discrimination arising from disability. The Tribunal considered that the dismissal was not a proportionate means of achieving a legitimate aim and no legitimate aim was identified by NCC.
Further, the Tribunal noted that the Claimant was not given the opportunity to return to a shift pattern of two afternoon shifts per week, which already accounted for the two ten minute breaks requested by the Claimant, without NCC needing to make any operational changes.
The only other staff member with a similar level of absence to the Claimant’s had not been dismissed and was said to have had a phased return, not returning to her full contractual hours until a year later.
Therefore, the Tribunal ruled that giving the Claimant the opportunity to attempt to return with these breaks as requested, and advised by her doctor, would have been a more consistent approach.
As such, giving the Claimant the opportunity to attempt to return with these breaks would have been a be less discriminatory way of achieving NCC’s stated aim of fair and consistent treatment of staff on sick leave.
Failure to Make Reasonable Adjustments
The Claimant for failure to make reasonable adjustments was based on the Claimant’s wrist injury, which the Tribunal found was not a disability. As such, the claim for failure to make reasonable adjustment failed.
Unauthorised Deduction from Wages
The Claimant was not in an employment relationship with either THG or Dr Turner; she was employed by NCC.
As such, neither had an obligation to pay her wages and therefore the claim for unauthorised deduction of wages was not well founded and accordingly was dismissed by the Tribunal.
So…How should NCC have managed this situation?
NCC should have:
- Adequately explored practical alternatives before dismissal. For example, switching the Claimant to the afternoon shift pattern required no operational change but accommodated her requirement for rest breaks. Employers should consider implementing reasonable adjustments, such as a phased return, reduced hours or additional breaks before proceeding with dismissal.
- Followed a sickness absence policy to ensure consistent treatment of all staff taking sick leave and suffering from long term health conditions or disabilities. Where individual cases are treated differently, employers should keep a clear record of why.
- Engaged meaningfully with medical advice. NCC were criticised for failing to adhere to medical advice and adjustments as set out in the Claimant’s fit notes. If an employer chooses to depart from recommendations on reasonable adjustments, they need to have persuasive reasons for doing so.
- Under the Equality Act 2010, discrimination arising from disability can be lawful if the employer shows the treatment is a proportionate means of achieving a legitimate aim. NCC should have defined a specific legitimate aim, been able to evidence this to the Claimant and show a genuine assessment of the impact on the business, further than providing their client’s a reliable service.
Key Takeaways for Employers
Consistency in handling sickness absence is essential. A clear policy, early and ongoing dialogue with the employee, supported by clear medical evidence, helps to ensure consistency. The Tribunal criticised the failure to trial a return-to-work plan that was already operationally feasible, alongside NCC’s failure to apply consistent processes across staff.
Employer’s should also be mindful of their duty to make reasonable adjustments and take a proactive approach to proposing and implementing them. This is particularly key where an employee has a disability that the employer is aware of, as a legal duty has been engaged.
It is important to maintain clear records of any decisions taken in respect of employees with long-term health conditions or disabilities, including the rationale behind why that particular decision was necessary.
Finally, it is important to note that the Claimant’s claim was significantly out of time. The Tribunal determined that it would be just and equitable to extend time in relation to the disability claim regarding endometriosis.
This serves as a key reminder that the Tribunal may exercise its discretion to extend limitation deadlines where fairness requires it, meaning employers should not assume late claims will automatically be dismissed.
If you are an employer affected by the above issue, our employment team can provide support in:
- Drafting or reviewing sickness absence policies
- Advice in managing long term sickness absence
- Support in legal, fair and consistent disciplinary procedures
- Support in conduct and capability dismissals
- Employment tribunal support
- Employment law or HR issues more generally.
Or if you are an employee affected by the above issue and want advice or support in connection with the same, please do not hesitate to contact us on 01206 239761 or [email protected].
