Bus driver with cancer dismissed: fair capability process upheld by tribunal
A bus driver dismissed after a year off sick with thyroid cancer has lost her unfair dismissal and discrimination claims. The tribunal found the employer acted reasonably in concluding there was no realistic prospect of return.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed as a bus driver from 29 August 2017.
- She was diagnosed with thyroid cancer on 6 May 2020 and was absent from work from 9 June 2020.
- The respondent followed its long-term sickness absence procedure and consulted with the claimant.
- The claimant was dismissed on 2 June 2021 due to incapability, with no realistic prospect of return.
- The respondent offered re-employment if the claimant recovered within six months.
- The claimant's appeal was upheld after an adjournment to allow more time for recovery.
Timeline
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Employment started
Claimant commenced employment as a bus driver.
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Cancer diagnosis
Claimant diagnosed with thyroid cancer.
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Sick leave began
Claimant went off sick and respondent notified of cancer.
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Brief return to work
Claimant returned to work for 11 days.
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Off sick again
Claimant off sick with post-op recovery and COVID-19 risk.
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Dismissal
Claimant dismissed on grounds of capability due to long-term sickness.
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Appeal lodged
Claimant appealed dismissal.
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First appeal hearing
Appeal hearing adjourned to allow more time for medical recovery.
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Appeal upheld
Appeal hearing reconvened; dismissal upheld as no improvement in health.
The legal issue
The tribunal had to decide whether the dismissal of a bus driver with 4 years' service, who had been absent for a year with thyroid cancer, was fair for capability reasons, and whether the employer discriminated against her on grounds of age, disability, or race, or subjected her to detriment for making protected disclosures.
The outcome
The tribunal dismissed all claims. It found that the respondent had a fair reason for dismissal (capability) and followed a reasonable procedure, including consulting the claimant and considering alternative roles. The offer of re-employment if she recovered within six months was a significant factor.
- The claimant's claims of unfair dismissal, discrimination (age, disability, race), failure to make reasonable adjustments, harassment, victimisation, and detriment/protected disclosure all failed.
- No compensation was awarded.
Lessons & takeaways
- Employers should follow their long-term sickness procedure and consult the employee before dismissing, as this helps show a fair process.
- Offering re-employment if the employee recovers within a set period can strengthen the employer's case that dismissal was a last resort.
- Employees with cancer are likely to be considered disabled from the point of diagnosis, but the employer's knowledge of the disability is key to discrimination claims.
- A dismissal for capability can be fair even if the employee has a serious illness, provided the employer has a reasonable basis for concluding no return is likely.
A difficult decision, but a fair process
This case shows how a tribunal assesses whether an employer acted reasonably when dismissing an employee with a serious illness. The bus driver had been off work for a year after being diagnosed with thyroid cancer. The employer kept in touch, consulted her, and considered alternative roles. When medical reports suggested no realistic prospect of return in the foreseeable future, they decided to dismiss.
What the employer did right
The tribunal noted that the employer followed its long-term sickness procedure, offered re-employment if the driver recovered within six months, and adjourned the appeal to allow more time for recovery. These steps demonstrated a genuine attempt to balance the employee's needs with the business's operational requirements. The tribunal also found that the employer did not have knowledge of the claimant's disability at the relevant time, which defeated the discrimination claims.
Why the result matters
This outcome is a reminder that a capability dismissal can be fair even when the employee has a serious condition like cancer. The key is the process: consultation, consideration of alternatives, and a reasonable conclusion based on the medical evidence. For employees, it highlights the importance of providing up-to-date medical information and engaging with the employer's process. For employers, it shows that a well-documented and compassionate approach can withstand scrutiny.
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