Dismissed for absence without medical evidence: disability discrimination claim succeeds
A director with extreme fatigue was dismissed for unauthorised absence without any medical evidence or occupational health referral. The tribunal found unfair dismissal and disability discrimination.
1 min read · Last updated 19 May 2026
Case details
Key facts
- The claimant was employed as a Director of the respondent solicitors from 5 February 2018 until dismissal on 12 November 2020.
- The claimant was absent from work on 70 days between April and October 2020 and did not report absences as required by the respondent's policy.
- The claimant had a disability (extreme fatigue) from 1 September 2020, which caused him to be unable to report his absences.
- The respondent dismissed the claimant for gross incompetence due to unauthorised absence and failure to report absences.
- The respondent did not obtain medical evidence or refer the claimant to occupational health before dismissal.
- The claimant's claims of unfair dismissal and discrimination arising from disability (in part) succeeded, but the claim for failure to make reasonable adjustments was partially successful.
Timeline
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Employment commenced
Claimant started work as a Director in the housing department of Duncan Lewis Solicitors Limited.
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Lockdown and home working
Claimant began working from home due to COVID-19 lockdown.
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Absences begin
Claimant started having periods of absence from work, which continued through October 2020.
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Performance review meeting
Claimant's health discussed; HR agreed to contact claimant about adjustments but did not follow up.
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Meeting with HR and performance review
Claimant disclosed his fatigue and discussed potential adjustments (unpaid leave, part-time, occupational health referral). HR did not follow up.
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Disciplinary hearing
Claimant's request for postponement refused; hearing proceeded in his absence.
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Dismissal
Claimant summarily dismissed for gross incompetence due to unauthorised absence and failure to report absences.
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Claim presented to tribunal
Claimant presented claims of unfair dismissal and disability discrimination.
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Liability judgment
Tribunal found unfair dismissal and discrimination arising from disability (in part) well founded; reasonable adjustments claim partially successful.
The legal issue
The tribunal had to decide whether the claimant was unfairly dismissed, whether he was discriminated against because of something arising from his disability (failure to report absences), and whether the respondent failed to make reasonable adjustments.
The outcome
The tribunal upheld the claimant's claims of unfair dismissal and discrimination arising from disability (in part). The claim for failure to make reasonable adjustments was partially successful.
- Unfair dismissal: well founded
- Discrimination arising from disability: well founded (in part)
- Failure to make reasonable adjustments: partially successful
No compensation figures were determined at this stage; a remedy hearing is to follow.
Lessons & takeaways
- Employers should obtain up-to-date medical evidence before dismissing an employee for absence, especially if the employee has a known disability.
- Failing to refer an employee to occupational health or consider reasonable adjustments can lead to findings of unfair dismissal and disability discrimination.
- An employee's failure to follow absence reporting procedures may be a consequence of their disability, and employers must consider that before taking disciplinary action.
- Even short service (2 years) does not prevent a successful unfair dismissal claim if the employer's process is flawed.
What this case shows in practice
This case illustrates the risks employers run when they dismiss a disabled employee for absence without first gathering medical evidence or considering adjustments. The claimant, a director at Duncan Lewis Solicitors, had 70 days of absence over seven months and failed to report absences as required. However, from September 2020 he was disabled by extreme fatigue, which made it impossible for him to comply with the reporting policy.
The respondent did not refer him to occupational health, did not obtain any medical report, and refused his request for a postponement of the disciplinary hearing. The tribunal found that the dismissal for gross incompetence (unauthorised absence and failure to report) was unfair and that the failure to report arose from his disability, making it discriminatory.
What the losing side could have done differently
Duncan Lewis could have avoided liability by taking simple steps: obtaining medical evidence, referring the claimant to occupational health, exploring adjustments such as part-time work or unpaid leave, and postponing the disciplinary hearing to allow him to participate. The tribunal noted that the respondent's HR had agreed to contact the claimant about adjustments but never did. A reasonable employer would have paused the disciplinary process to understand the medical position.
Why the result matters for similar claims
This case reinforces that disability discrimination claims can succeed even where the employee has short service (here, just over 2 years). It also shows that a failure to follow absence reporting procedures may be a consequence of the disability itself, and employers must consider that before dismissing. The partial success on reasonable adjustments highlights that even where adjustments are discussed, failing to implement them can lead to liability.
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