Dismissed during long-term sick leave: a capability decision that went too fast
A warehouse operative with 6.5 years' service was dismissed for capability after a year of sick leave for depression. The tribunal upheld the dismissal, finding the employer acted reasonably despite not waiting the 4-5 weeks suggested by occupational health.
1 min read · Last updated 19 May 2026
Case details
Key facts
- The claimant was employed as a warehouse operative from November 2015 until dismissal on 10 June 2022.
- He was absent from work due to ill health from 3 June 2021, diagnosed with depression.
- The respondent held multiple capability meetings and obtained an occupational health report dated 18 May 2022.
- The OH report suggested a review at 4-5 weeks to assess medication effect, but the respondent dismissed the claimant on 10 June 2022.
- The claimant refused alternative roles and locations offered by the respondent.
- The appeal hearing on 25 August 2022 upheld the dismissal as the claimant remained unfit for work.
Timeline
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Employment started
Claimant began working as a warehouse operative for WM Morrisons Supermarket Ltd.
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Investigation meeting
Claimant attended a formal investigation meeting regarding alleged breaches of the respect in the workplace policy.
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Sick leave started
Claimant first absent from work due to ill health, related to depression.
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Depression diagnosed
Claimant formally diagnosed with depression and prescribed fluoxetine.
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Telephone discussion
Claimant confirmed he was not fit to work and declined occupational health review.
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First capability meeting
Meeting chaired by Miss Makowska; alternative roles discussed.
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Second capability meeting
Claimant stated he was not fit to return; refused alternative roles.
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Third capability meeting
Claimant said he could not return; agreed to OH referral.
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Occupational health report
Dr Jowett reported that claimant was unfit and suggested a review at 4-5 weeks to assess medication effect.
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Dismissal
Miss Makowska dismissed the claimant on grounds of capability due to long-term ill health and breakdown of trust.
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Appeal hearing
Appeal heard by Mr Beaumont; claimant remained unfit and offered no return timetable.
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Appeal dismissed
Respondent upheld the dismissal.
The legal issue
The tribunal had to decide whether the employer acted reasonably in dismissing the employee on capability grounds due to long-term ill health, and whether failing to wait 4-5 weeks as suggested in an occupational health report amounted to a failure to make reasonable adjustments.
The outcome
The tribunal rejected the claim of unfair dismissal. It held that the employer had a genuine capability reason and followed a fair process, including multiple meetings and an occupational health referral. The decision to dismiss was within the band of reasonable responses, especially as the employee refused alternative roles and could not provide a return date.
The tribunal also dismissed the reasonable adjustments claim, as the occupational health advice did not create a 'provision, criterion or practice' that the employer was required to adjust.
No compensation was awarded.
Lessons & takeaways
- Employers can fairly dismiss for long-term sickness if they follow a proper process, including occupational health advice and exploring alternative roles.
- Refusing suitable alternative work can weaken a claim of unfair dismissal, as it shows the employer tried to accommodate.
- Occupational health recommendations are not always binding; tribunals consider the overall reasonableness of the employer's actions.
- Long-serving employees are entitled to more process, but a year of absence with no return date can justify dismissal.
A case of timing and trust
This case shows the fine line employers must walk when an employee is off sick long-term. The warehouse operative had been absent for a year with depression, and the employer had held several capability meetings. The occupational health report suggested a review in 4-5 weeks to see if new medication helped. But the employer dismissed just three weeks later, citing a breakdown of trust.
What the tribunal considered
The tribunal noted that the employee had refused alternative roles and locations, and could not give any return date. The employer had also offered a further occupational health review, which the employee declined. While the timing was tight, the tribunal decided the employer's decision was within the 'range of reasonable responses' – the key test for fairness.
Why the result matters
This case is a reminder that employers do not have to wait indefinitely for a recovery that may never come. However, it also highlights the importance of following a structured process and considering all options. Employees who want to challenge a capability dismissal should ensure they engage with occupational health and consider suitable alternative work offers.
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