The claimant was employed as a part-time sales assistant from April 2012 under a contract which guaranteed a minimum of 7.5 hours per week with additional hours as required from time-to-time.

The claimant went off sick on 9th March 2018 and never returned to work, culminating in her dismissal on 17th January 2019.   The Respondent’s handbook stated that if an employee was unable to return to work in any capacity in the foreseeable future then a decision may be taken to terminate the employment.  The background to the case involved a new manager in the claimant’s store.   There were various difficulties that arose between the two, including a reduction in hours from the 27 which were habitually worked by the claimant.  There was also an allegation raised by a customer that the claimant had made rude comments about Iceland.  There was an investigatory meeting with the claimant stating that it was a false complaint from the new manager to undermine her.

There were a number of grievances issued in relation to the allegation as well as the threatened reduction in hours.  This culminated in the claimant going off with ‘stress at work’ originally followed then by ‘recuperation from recent abdominal surgery’.  In the meantime, some of the grievances were upheld including the reduction in hours without notice with the recommendation that the claimant be reimbursed in pay for the period including her period of sick leave.

Following this, there were a number of meetings conducted in relation to the sickness absence.   A third meeting was held which was followed up with a letter stating that if the claimant was unable to return to her substantive role or if the Respondent was not able to identify reasonable adjustments/suitable alternative roles, then she may be dismissed on the grounds of capability.  It was following a meeting in January 2019 that she was formally dismissed.  She appealed the decision, but the original decision was upheld.

The claimant suggested that the influences of the new manager was the root cause of the dismissal.  However, the Tribunal held that the fact there was no prospect of a return date within a reasonable time limit was the main reason for the dismissal on the grounds of capability.  The respondent did not obtain any medical evidence but despite that, the dismissal was deemed as fair on the basis that the claimant’s sick notes and statements were taken at face value.  The Tribunal indicated that the root cause of the claimant’s position appeared to be her refusal to accept the outcome of her grievance which they stated appeared to have been dealt with in good faith and the claimant’s argument that the new manager should be moved to an alternative store was not reasonable in the circumstances. They also noted that the Claimant refused to engage in mediation with the new manager.  Accordingly, the claimant’s case was dismissed.

Practical Lessons

This case is yet another on absenteeism and how to deal with it when starting disciplinary proceedings which may lead to dismissal.  Finding the root cause for the absenteeism is incredibly important.   The Tribunal did allude to the fact the respondent did not rely upon medical evidence but in fact took the claimant’s statements at face value.   This was sufficient.   The overall matrix has to be considered and how it coincided with the grievance issued was taken into account.  Therefore, proper records and looking contextually must be considered in these cases.
https://assets.publishing.service.gov.uk/media/5fc8a107e90e0762ae0f69e6/Sally_Clark_v_Iceland_foods_Ltd_2301387-2019_Judgment_and_Reasons.pdf