Claimant who had been absent for a long period of time was fairly dismissed using the inefficiency (health absence) procedure. Tribunal could not determine the merits of an ill-health retirement issue.

The claimant was appointed to a permanent position in the Northern Ireland Civil Service in 2005. The claimant had been absent on the ground of ill-health several times.  This led to written warnings in 2013 and 2017. Additionally, the respondent had considered taking formal action in 2020 and 2021 but ultimately it was not taken.

The claimant went on sick leave in May 2022 and remained so until her dismissal in November 2023.  This was a final absence of 381 days. The claimant confirmed that she was unfit for work during that period and remained unfit during the period after the dismissal up to and including the date of the hearing.  One of the main elements of contention was the claimant disagreeing with the decision of the NICS pension scheme not to award ill-health retirement. The Occupational Health Service found that it could not advise that the claimant would be permanently incapable of any work up until the anticipated retirement age of 68 (which would be some 31 years in the future).

The claimant alleged that the action taken by the respondent led to unfair dismissal and discrimination on the grounds of disability and age.

The claimant sought to argue that the employer should have overridden the decision of the Occupational Health Service and that the Tribunal should have overridden the decision.  The Tribunal made it clear that neither the employer nor the Tribunal had such power – the Tribunal had a limited statutory jurisdiction upon which it could make decisions.

The claimant had accepted that the respondent was entitled to dismiss her on the grounds of inefficiency (health absence). The claimant received 100% compensation for her sick absence dismissal which was calculated at £24,804.68. The claimant did not dispute that payment.

The Tribunal found that the claimant believed that the refusal of her ill health retirement meant that her subsequent dismissal would be regarded as unfair. The Tribunal has no jurisdiction though to determine the merits of the decision to refuse ill-health retirement by the NICS pension.  The respondent had acted fairly and sought to assist the claimant along every step – it had extended time limits to submit evidence, agreed that the dismissal would be rescinded if an appeal relating to ill-health retirement was successful and it had waited a long-time before beginning the inefficiency procedure.  As a result, the Tribunal found that the claimant’s claim of unfair dismissal was unfounded.  The dismissal was fair on the grounds of capability.

The Tribunal further found that the discrimination claims were ‘ill-defined’. A suggestion of age discrimination was found when, in a meeting, it had been noted that receiving ill-health retirement was difficult when there was 31 years until retirement age.  This was a general comment and the Tribunal found that the claim of age discrimination was misconceived.

The Tribunal expressed sympathy relating to the claimant’s ill-health but found that the claims cannot be decided based upon sympathy. A large part of the claim related to a disagreement with the decision relating to ill-health retirement and the Tribunal made it clear that it was not within its jurisdiction to determine such matters.  The respondent had sought to facilitate the claimant during the process, and they had shown that fair process at the Tribunal which led to the finding dismissing the claims.

NI Tribunal decisions are available on the OITFET website.