Production operative dismissed during long-term sick leave: unfair dismissal claim fails on service
A production operative who was dismissed while on sick leave for plantar fasciitis and depression lost her unfair dismissal claim because she had less than two years' service. All disability discrimination claims were also dismissed.
1 min read · Last updated 19 May 2026
Case details
Key facts
- The claimant worked as a production operative at Fox’s Biscuits from 27 July 2018 via an agency until 12 November 2018 when she became a permanent employee.
- She had plantar fasciitis and depression, which the respondent conceded were disabilities.
- She was dismissed on 19 August 2020 on grounds of capability due to ill health after being absent since 21 November 2019.
- The tribunal found she did not have two years' continuous employment, so the unfair dismissal claim was dismissed for lack of jurisdiction.
- All disability discrimination claims (harassment, direct discrimination, failure to make reasonable adjustments) were dismissed as not well-founded.
Timeline
-
Started work via agency
Claimant began working at Fox’s Biscuits through Staffline Recruitment agency.
-
Became permanent employee
Claimant was directly employed by Northern Foods PLC (predecessor of respondent) as a production operative.
-
First occupational health visit
Claimant visited the on-site occupational health advisor, who recommended regular changes between sitting and standing.
-
Chair taken away
Mr Hussain took a chair from the claimant, saying it was his; claimant informed him she needed it as a reasonable adjustment.
-
Manager suggested going off sick
Mr Patel told claimant 'maybe you should go off sick if you are unable to do your job'.
-
Photo incident
Mr Hussain took photos of claimant sitting on a stool and yelled at her; claimant became distressed and went off sick the next day.
-
Started sick leave
Claimant commenced ill health absence and did not return to work.
-
Dismissal meeting
Claimant was dismissed on grounds of capability due to ill health; she had a panic attack during the meeting.
-
Appeal hearing
Appeal heard by Mr McLeod; he obtained an updated occupational health report.
-
Appeal dismissed
Mr McLeod upheld the dismissal decision, stating the required adjustments could not be accommodated.
The legal issue
The tribunal had to decide whether the claimant had two years' continuous employment to bring an unfair dismissal claim, and whether the respondent discriminated against her on grounds of disability by harassment, direct discrimination, or failure to make reasonable adjustments.
The outcome
The tribunal dismissed all claims. The unfair dismissal claim was struck out because the claimant had only 1 year and 9 months of continuous employment, falling short of the two-year qualifying period. All disability discrimination claims were also dismissed as not well-founded.
- Unfair dismissal: claim dismissed for lack of jurisdiction (no award)
- Harassment related to disability: dismissed
- Direct disability discrimination: dismissed
- Failure to make reasonable adjustments: dismissed
Lessons & takeaways
- Employees with less than two years' service generally cannot bring an unfair dismissal claim, unless the reason is automatically unfair (e.g., whistleblowing or discrimination).
- Even if an employer concedes a disability, discrimination claims still require evidence of unfavourable treatment because of the disability or a failure to make reasonable adjustments.
- A tribunal will consider whether the employer took reasonable steps to obtain medical evidence and explore adjustments before dismissing on capability grounds.
- The quality of occupational health reports and the employer's engagement with them can be critical in defending a disability discrimination claim.
What this case shows in practice
This case illustrates the importance of the two-year service requirement for unfair dismissal claims. The production operative had worked for Fox’s Biscuits for just under two years when she was dismissed while on long-term sick leave. Despite having conceded disabilities (plantar fasciitis and depression), the tribunal found that the employer had not discriminated against her. The claimant's allegations of harassment, direct discrimination, and failure to make reasonable adjustments were all dismissed.
What the losing side could have done differently
The claimant's representative argued that the employer had failed to make reasonable adjustments, such as providing a chair or allowing flexible working. However, the tribunal accepted the employer's evidence that it had considered adjustments but concluded they were not feasible in the production environment. The employer had obtained occupational health advice and held a dismissal meeting. To strengthen their position, the employer could have documented more clearly why specific adjustments were not possible and considered alternative roles.
Why the result matters for similar claims
This case is a reminder that the two-year service threshold is a strict requirement for ordinary unfair dismissal claims. Employees with less than two years' service who believe they were dismissed for a discriminatory reason can still bring discrimination claims, but they must prove the discrimination. Here, the tribunal found no evidence that the dismissal or the treatment leading up to it was because of disability. The case also shows that employers who follow a reasonable process and obtain medical advice can defend capability dismissals even where the employee has a disability.
Similar cases
Security officer dismissed after back injury: tribunal finds unfair dismissal and disability discrimination
A security officer with six years' service was unfairly dismissed after a back injury. The tribunal also found that CIS Security Ltd failed to make reasonable adjustments and discriminated against him arising from his disability.
Dismissed after 10-month absence: employer's reasonable adjustments were enough
An employment tribunal has upheld the dismissal of an assistant branch manager with 28 years' service who was absent for 10 months with anxiety. The employer had offered multiple adjustments but the claimant insisted on a customer ban.
Cancer survivor unfairly dismissed after being forced to compete for her own job in restructure
A lead early years consultant with six years' service was unfairly dismissed and discriminated against after Lancashire County Council required her to compete for a role substantially similar to her own while she was on long-term sick leave for cancer treatment. The tribunal awarded over £800,000 in compensation.
20-year manager dismissed for capability after employer refused to adjust role for disability
A Global Governance Risk and Compliance Manager with 20 years' service was unfairly dismissed and discriminated against after GlaxoSmithKline failed to make reasonable adjustments for her hand disability. The tribunal awarded £24,785 for injury to feelings.