Train driver dismissed while medical evidence said he could return: a capability case that failed to consult
A London Underground train driver with five years' service was unfairly dismissed and discriminated against after being sacked for long-term sickness despite occupational health and a specialist both saying he could return with adjustments.
1 min read · Last updated 19 May 2026
Case details
- #long-term-sickness
- #disability-discrimination
- #failure-to-make-reasonable-adjustment
- #occupational-health
- #procedural-unfairness
- #failure-to-consult
Key facts
- The claimant was dismissed on 10 July 2021 due to long-term sickness absence caused by lower back pain and facet joint arthritis.
- The respondent's occupational health adviser stated on 16 April 2021 that medical termination was not necessary and symptoms were expected to resolve.
- The claimant saw an orthopaedic specialist on 7 July 2021 who found no reason for medical retirement and recommended conservative management and ergonomic adaptations.
- The appeal decision-maker, Mr Smith, did not consult the Head of London Underground Occupational Health before dismissing the appeal, contrary to the respondent's own procedure.
- The dismissal was found to be unfair, discriminatory under section 15 of the Equality Act 2010, and a failure to make reasonable adjustments.
Timeline
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Employment started
The claimant began working as a train driver for London Underground Limited.
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Sickness absence began
The claimant went off sick due to lower back pain and facet joint arthritis.
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Physiotherapy referral
Occupational health physiotherapist recommended 5 sessions over 8 weeks; claimant attended only one session.
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Paternity leave started
Claimant took paternity leave, which reset his sick pay entitlement.
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Occupational health assessment
Shola Babafemi assessed claimant; stated medical termination not necessary and symptoms expected to resolve.
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First case conference
First case conference held since absence began; notes not sent to claimant until July.
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Dismissal decision made
Ms Simms decided to dismiss claimant on medical grounds, effective 10 July 2021.
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Dismissal communicated
Claimant informed of dismissal; notes of earlier meetings sent for first time.
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Specialist consultation
Orthopaedic specialist found no reason for medical retirement; recommended conservative management and ergonomic adaptations.
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Appeal hearing
Mr Smith heard appeal; did not consult Head of LUOH before dismissing appeal.
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Appeal dismissed
Mr Smith upheld dismissal decision.
The legal issue
The tribunal had to decide whether the dismissal for medical incapability was unfair, whether it amounted to unfavourable treatment because of something arising from the driver's disability (lower back pain and facet joint arthritis), and whether London Underground failed to make reasonable adjustments.
The outcome
The tribunal upheld all three claims: unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments.
The key reasons were:
- The decision-maker relied on a stale occupational health report from April 2021 and ignored a specialist's opinion from July 2021 that said medical retirement was unnecessary.
- The appeal officer failed to consult the Head of London Underground Occupational Health, contrary to the respondent's own procedure.
- The respondent did not consider reasonable adjustments such as ergonomic adaptations or a phased return.
Compensation will be determined at a remedy hearing scheduled for 30 and 31 January 2024.
Lessons & takeaways
- Employers must consider the most up-to-date medical evidence before dismissing on capability grounds, especially when an employee provides a recent specialist report.
- Failing to follow your own internal procedures, such as consulting occupational health on appeal, can make a dismissal procedurally unfair.
- Long-term sick employees with disabilities are entitled to reasonable adjustments; dismissing without exploring these risks a discrimination claim.
- A lengthy delay in holding the first case conference (here, over 7 months) can indicate a lack of proper process and support for the employee.
This case shows how a failure to follow proper process and consider up-to-date medical evidence can turn a capability dismissal into a costly legal defeat. The train driver, who had five years' service, was absent with lower back pain and facet joint arthritis. Despite occupational health advising in April 2021 that medical termination was not necessary and symptoms were expected to resolve, and a specialist in July 2021 finding no reason for medical retirement, London Underground pressed ahead with dismissal.
What went wrong
The decision-maker, Ms Simms, relied on the April report and did not wait for the specialist appointment that was already booked. The appeal officer, Mr Smith, failed to consult the Head of London Underground Occupational Health, a step required by the respondent's own procedure. The tribunal noted that the first case conference was not held until seven months after the absence began, and notes were not shared with the driver until after the dismissal decision.
Why this matters
For employees in similar situations, this case reinforces that employers cannot simply rely on old medical reports when newer evidence is available. It also highlights that failing to make reasonable adjustments—such as ergonomic adaptations or a phased return—can lead to a finding of disability discrimination. For employers, the message is clear: proper consultation, up-to-date medical evidence, and adherence to internal procedures are not optional; they are essential to a fair dismissal process.
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