Unfair Dismissal claim unsuccessful when claimant dismissed for incapability after being off sick for over one year. Employer had taken reasonable steps to assist the claimant back to work.

The claimant was employed as a Senior Financial Services Administrator from August 2017 until her dismissal in October 2021.  As a result of the pandemic, the work in the respondent was found to have diminished. The claimant alleged that she had suffered a detriment because of protected disclosures. The protected disclosures, according to the claimant, related to data protection issues in that some client files had transferred into other files and scanned onto a system. Additionally, she said some compliance issues relating to pension schemes and ‘know your client’ forms were not adequately completed by the respondent.  The claimant also alleged that she was singled out through action taken by management to monitor her work, making criticism against her using her phone when others were doing the same and not expressing sympathy when her mother died.  

A redundancy situation arose within the respondent because of the diminished workload.  The claimant asserted it was a ‘sham’ and to get rid of her because of her protected disclosures. However, no redundancy ever took place. This took place in 2020 and in August 2020 the claimant went off on sick and remained off until her dismissal in October 2021. The fitness to work statements were all similar citing stress at work.  Her dismissal was on the basis of incapability.

The Tribunal found that the issue of the GDPR breach had been brought to the attention of management in a conversation in March 2020.  However, it was found by the Tribunal that it was a minor administration issue, and it was resolved informally. It did not amount to information sufficient to be a protected disclosure. On the dismissal, the Tribunal found that the prolonged absence from work was the determining factor in the dismissal. The respondent had sought to deal with this appropriately through off-site meetings, occupational health specialists being involved and having the grievance issued by the claimant dealt with by an independent professional. There were also requests for postponements which were acceded to by the respondent.  Accordingly, this was the action of a reasonable employer if they were faced with the same circumstances. They had exhausted all avenues in attempting to identify a path by which the claimant might return to work.  As a result, the claims were dismissed.

Issues of prolonged absence and having to act based upon that absence can cause difficulties for employers.  In this case, the Tribunal outlines the actions of the respondent which demonstrated that they had acted as the reasonable employer would in the circumstances.  This included having off-site meetings, being flexible in arranging meetings and having the involvement of occupational health specialists.  Such actions should be considered by employers to ensure that they are giving fairness to their employees in such situations but also allow for those matters to be processed.

NI Tribunal decisions are available on the OITFET website: 
https://www.employmenttribunalsni.co.uk/