Decision to dismiss on grounds of capability regarded as fair when the disabled claimant had been absent from work for 35 months with no prospect of a return.

The claimant was employed as a Day Care Support Worker in September 2005, and the employment was terminated in October 2023.  Prior to the termination the claimant had been on sick leave for a period of 35 months and had been seen on five occasions by occupational health. It was found by occupational health that the claimant would be permanently unfit for her current role and that some stage in the future she may be able to return in an alternative sedentary role, but that could not be predicted.

The respondent’s Management of Absence policy states that the respondent may terminate on the grounds of ill-health where the level of absence is unsustainable and by giving the staff member the appropriate notice period. The claimant suggested that there had been some improvement after having an injection in her back. The final case review in October 2023 it was confirmed by the claimant that she felt unable to return to work in any physical capacity. This was internally appealed which found that there could be a further referral to occupational health.  The claimant refused this stating that it was ‘pointless’. This would have also allowed for a further period of unpaid leave rather than it being a decision to dismiss.

Following this the claimant brought a claim for unfair dismissal and disability discrimination.

The Tribunal found that there was no satisfactory evidence before the Tribunal to demonstrate that the claimant was at a substantial disadvantage compared to a fellow employee who was not disabled. The claimant could not show that the duty to make reasonable adjustments had arisen and could not prove that, even if it did, that the duty had been breached.  The respondent was entitled to apply the policy in the way it did to the claimant and to include the aspect of referrals to occupational health in that decision. Accordingly, the dismissal was made on the fair reason of capability as the employee could not perform the work of the kind in which she was employed to do.  The dismissal was thus fair and fell within the band of reasonable responses.

This case tackles the thorny issue of long-term absence coupled with an employee being disabled.  This cuts across many aspects such as making reasonable adjustments, when there should be occupational health referrals and following the policy relating to absence management and the possibility of dismissal.  The approach taken by the respondent was found to be flexible for the claimant but considering the reports from occupational health and the input from the claimant there was no timescale for the claimant to return to work. As a result, in following the policy, the respondent could make the decision to dismiss on the grounds of capability.

NI Tribunal decisions are available on the OITFET website.