26-year service, long-term sickness: capability dismissal upheld by tribunal
A Visual Merchandising Team Manager with 26 years' service was dismissed after over six months' absence. The tribunal rejected her claims of unfair dismissal and disability discrimination.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed from 22 October 1995 as a Visual Merchandising Team Manager until dismissal on 4 March 2022.
- The claimant suffered from anxiety and depression, formally diagnosed as generalised anxiety disorder in March 2021.
- The claimant had a difficult relationship with some staff and felt undermined.
- The claimant was dismissed on grounds of capability after over six months' absence with an 80% non-attendance rate.
- The respondent had knowledge of the claimant's disability from March 2021 (and constructive knowledge from February 2020).
- The tribunal found no discrimination, harassment, victimisation, or unfair dismissal.
Timeline
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Employment start
Claimant began working for Marks & Spencer as a Visual Merchandising Team Manager.
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Acute anxiety symptoms
Claimant began suffering from more acute symptoms of anxiety and depression.
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Occupational health assessment
Telephone occupational health assessment; report noted anxiety and medication.
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Furloughed
Claimant furloughed due to Covid-19 until 30 August 2020.
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Mental health crisis
Claimant taken to mental health crisis unit after fearing catching Covid.
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Panic attack
Claimant suffered panic attack; agreed to spend less time on sales floor.
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Formal diagnosis
Claimant formally diagnosed with generalised anxiety disorder.
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End of year review
Claimant rated 'missed' in annual review; became upset and later left work.
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Grievance submitted
Claimant submitted formal grievance alleging failure in duty of care and discrimination.
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Dismissal
Claimant dismissed on grounds of capability due to long-term sickness absence.
The legal issue
The tribunal had to decide whether the dismissal was unfair and whether the employer discriminated by failing to make reasonable adjustments, harassing, or victimising the employee due to her disability (generalised anxiety disorder).
The outcome
The tribunal dismissed all claims. It held that the employer had a genuine reason for dismissal (capability) and followed a fair process, including obtaining occupational health advice and considering adjustments. The employee's long service did not outweigh the need to manage sustained absence.
- The tribunal found no discrimination arising from disability, as the dismissal was justified by the need to manage attendance.
- No failure to make reasonable adjustments: the employer had already reduced floor time and offered counselling.
- Harassment and victimisation claims were also rejected due to lack of evidence.
Lessons & takeaways
- Long service does not guarantee protection from dismissal if you are unable to attend work for a prolonged period.
- Employers who engage with occupational health and consider adjustments are more likely to defend capability dismissals successfully.
- Keep a clear record of any requests for adjustments and the employer's responses to support a discrimination claim.
- If you have a disability, ensure your employer is formally notified of your condition and any specific needs to trigger the duty to make adjustments.
When long service isn't enough
This case shows that even 26 years of loyal service cannot always save a job when long-term sickness absence reaches a critical point. The employee, a Visual Merchandising Team Manager, had been absent for over six months with an 80% non-attendance rate due to generalised anxiety disorder. Marks & Spencer dismissed her on capability grounds, and the tribunal upheld that decision.
What the employer did right
The tribunal noted that Marks & Spencer had taken several steps before dismissing: they obtained occupational health reports, reduced the employee's time on the shop floor, arranged counselling, and considered a phased return. These actions showed that the employer was not acting hastily. The key factor was that the medical evidence did not indicate a likely return to work in the foreseeable future, even with adjustments.
Why the discrimination claims failed
The employee argued that her dismissal was discrimination arising from disability. However, the tribunal accepted that the employer had a legitimate aim—managing attendance—and that dismissal was a proportionate means of achieving it. The reasonable adjustments claim also failed because the employer had already implemented the main adjustment requested (less floor time) and there was no evidence that further adjustments would have enabled a return.
What this means for similar claims
Employees with long service may feel they deserve more leeway, but tribunals will focus on the employer's process and the medical prognosis. If an employer can show they have genuinely tried to support a return and have followed a fair procedure, a capability dismissal is likely to be fair—even for a disabled employee. For claimants, the lesson is to engage early with occupational health and to document any requests for adjustments clearly.
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