Claimant was not unfairly dismissed when the respondent followed the Managing Attendance policy when there was long-term absence.

The claimant started working for the respondent in April 1995 and this came to an end in August 2024. The Tribunal noted the vagueness of the issues regarding conflict.  However, it appears that there were a number of complaints made against the claimant by colleagues. An issue arose in March 2023 when a service user was being managed by care staff. The use of a sling for toileting apparently caused the service user to suffer pain or discomfort. A further issue also occurred with the same service user slipping on the sling.  Following this the claimant wrote an email referring to the Whistleblower Policy and that there was malpractice and disregard for health and safety legislation. This was not progressed as a formal whistleblowing investigation following advice from HR. The Tribunal notes that this was within management’s discretion as per the policy.  There was also a grievance process which was raised by the claimant relating to a confidentiality breach. This grievance was not upheld.

Aside from these processes there was a Managing Attendance policy process in relation to the claimant’s absence. Redeployment was discussed as part of this process.  Following the process the decision was made to dismiss the claimant.  At the final meeting the claimant stated she would not be in a position to return to work and that she wished to apply for ill health retirement.  The claimant brought a claim for unfair dismissal and detriment arising from a protected disclosure.

The Tribunal stated that no Tribunal would expect an employer to keep a job open or keep an employee on the books on foot of any medical evidence or even by the claimant’s own concession that she could not return. Bearing this in mind and the Managing Attendance policy the Tribunal held that the dismissal was both substantively and procedurally fair.  It was also found that the claimant was not disabled within the meaning of the 1995 Act based upon the claimant’s assertion of stress and anxiety. The Tribunal also found that there was no detriment suffered by the claimant as a result of any protected disclosure made. As a result, the claims were dismissed.

This case demonstrates the perennial issue of managing long-term absence in the backdrop of what can be a complex factual situation. The importance of having a Managing Attendance policy which is clear and is followed is demonstrated here.  Where such a policy is clearly known and is followed it allows an employer to demonstrate that clear evidence should they have to before the Tribunal.

NI Tribunal decisions are available on the OITFET website.