A woman has won £15,000 after she was sacked from her job at Marks and Spencer while off sick. 

Donna Gallagher, who had worked at the company for 23 years, was asked to change her hours and work weekends in 2019. 

She said she couldn’t change her hours because she was a carer for her disabled mother, and was in discussions about this. 

A hearing heard how she needed time off due to depression, which was ‘caused or exacerbated’ by the changes to her rota. 

Mrs Gallagher joined M&S as a customer assistant in 1997 at Liverpool’s Bootle store before moving to the Queen’s Drive shop in 2016 where she worked just under 20 hours a week. 

As well as this, she lived with and cared for her mother, who needed a wheelchair. 

After six months of back and forth during which she was signed off work, Mrs Gallagher was sacked for her prolonged absence when she told her boss she might be off sick for another month.

She appealed this decision, but felt she could not return as she ‘did not trust M&S anymore’ and sued the company at an employment tribunal.

She has now been awarded £15,344.99 in compensation after the tribunal found she was discriminated against and there was no evidence ‘whatsoever’ to show a further month absence would cause M&S ‘any difficulty at all’.

The panel heard the retailer had previously accommodated her caring responsibilities as she was given a ‘carer’s passport’, which helps support those who look after loved ones.

In May 2019, Mrs Gallagher was told her contract was changing, but after numerous discussions about this, no final agreement was reached.

She was signed off work with reactive depression as she was ‘very unwell’ and her mental health had ‘worsened’ in June and July, the tribunal was told.

The panel, held in Liverpool, heard she remained off sick throughout the remainder of her time at M&S.

Mrs Gallagher then lodged a grievance in July detailing how the change of hours would affect her carer role.

Around this time, Mrs Gallagher’s sick pay was withheld and she received a letter stating this was because M&S had believed her absence was not illness related, the panel heard.

This had been an error and it was rectified, but the tribunal found the ‘basic and fundamental’ mistake ‘surprising’ given the company’s size and resources.

Mrs Gallagher was later brought in for a grievance meeting with the conclusion – which she later appealed – of which being she would compromise her hours, the tribunal heard.

In August 2019, she had a meeting with section manager, Susan Waller, who confirmed M&S wanted to help her, but that her continued absence may lead to her sacking, the panel was told.

Two occupational reports were then carried out, the conclusion of one being that her absence had come as a result of the working hours and that these needed to be reviewed.

The second report made in January 2020 – the month she was sacked – found she was suffering from a ‘severe level of anxiety and depression’, and the panel was told she even struggled to get out of bed.

During a sixth and final ‘long term ill health meeting’, Ms Waller asked Mrs Gallagher whether she would want to return if she had the hours she wanted to which Mrs Gallagher replied ‘that’s all I’ve ever asked for’.

The tribunal ruled in favour of Mrs Gallagher’s claim for disability discrimination on account of her mental health.

Employment Judge Dawn Shotter concluded: ‘I am satisfied on the balance of probabilities the substantial adverse effects experienced by [Mrs Gallagher] with and without anti-depressant medication was likely to last at least 12 months from the 18 July 2019 [when she first went off sick] and beyond the effective date of termination.

‘No evidence whatsoever was produced to the Tribunal to indicate that, specifically, her ongoing absence for a further month would put the company to any material difficulty, or in fact any difficulty at all.’

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