The claimant was employed as a concierge at the Slieve Donard Hotel and was dismissed as a result of an alleged breach of procedure leading to a loss of trust and confidence. The claimant had signed for, and took delivery of, a large consignment of chocolates that went missing. They were ultimately found but only after a verbal warning had been issued and an unsuccessful appeal hearing.

There were issues of unfitness to work in the case and the respondent firmly held the view throughout that the claimant was misleading everyone by faking sickness. This was despite GP sick notes, Occupational Health reports and an independent HMRC adjudication that the claimant was ‘unfit for work’. The respondent contended that the claimant’s misleading actions were a breach of conduct which led to a loss of trust and confidence in him as an employee. At one stage the respondent’s HR Manager even threatened to report the claimant’s GP to the GMC for the continued issuing of sick lines.

The tribunal found that there was a predetermined outcome to the disciplinary process and the process and penalty were outside the band of reasonable responses for a reasonable employer in the circumstances of the case.  The claimant’s dismissal was thus unfair.

Practical Lessons

The tribunal was extremely critical of the employer here who ignored numerous medical opinions that the claimant was unfit for work. It went on to hold that there is a burden on employers, especially when dealing with employees who are ill with mental health problems, to be proactive, clear and consistent in the way they deal with them. It further commented that good industrial practice requires that an employer who refers an employee to OH should take the lead in relation to contacting the employee to facilitate his return to work.

Employers may well have a suspicion that an employee is feigning sickness, but to ignore clear medical opinion, as here, is only likely to reflect very poorly on the employer. The tribunal was clearly saying that employers have to tread carefully in such situations and be sensitive to potential medical issues. Established medical opinion has to at least be considered carefully and not dismissed outright. Such unreasonable conduct only pointed to the conclusion that the employer had made its mind up.