Bus driver with 13 years' service dismissed for capability after sick pay dispute
A bus driver with osteoarthritis was fairly dismissed for capability after 24 weeks' absence, but won £1,017 for unpaid sick pay. The tribunal rejected all discrimination claims.
2 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #osteoarthritis
- #sick-pay-dispute
- #light-duties-search
- #occupational-health
- #grievance-appeal
Key facts
- The claimant was employed as a bus driver from 19 November 2004 until dismissal on 15 February 2018.
- The claimant suffered from osteoarthritis affecting his feet, ankles, knees, hands, left elbow and spine, which was conceded as a disability.
- The claimant was absent from work from 30 August 2017 due to an exacerbation of his arthritis.
- The respondent conducted a thorough search for light duties but found no suitable alternative employment.
- The claimant was dismissed on grounds of capability due to ill-health after 24 weeks of continuous absence.
- The claimant succeeded in his claim for unlawful deductions from wages in the gross sum of £1,017.03.
Timeline
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Employment started
The claimant began employment as a bus driver with Metroline Travel Ltd.
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Sickness absence began
The claimant started a period of sickness absence due to arthritis and gout.
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Return to work
The claimant returned to work but did not complete a self-certificate for the absence.
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Further sickness absence
The claimant reported sick again, and Mr Seers did not accept the genuineness of the illness.
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Grievance raised
The claimant raised a grievance about Mr Seers' conduct and non-payment of sick pay.
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Grievance outcome
Mr Brusa partially upheld the grievance, awarding sick pay from 22 September 2017.
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Grievance appeal outcome
Mr Dalby awarded sick pay from 30 August 2017, conditional on the claimant sending fit notes to Mr Seers.
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Dismissal
The claimant was dismissed on grounds of capability due to ill-health.
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Remedy hearing
The tribunal awarded the claimant £1,017.03 gross for unlawful deductions.
The legal issue
The tribunal had to decide whether the bus driver's dismissal for capability due to long-term ill health was fair, and whether the employer discriminated against him on grounds of disability or age in relation to sick pay, disciplinary proceedings, and failure to make reasonable adjustments.
The outcome
The tribunal found that the bus driver's dismissal for capability was fair. The employer had carried out a thorough search for light duties and had a genuine belief, based on medical evidence, that the driver was unlikely to return to work in the foreseeable future. The process was within the range of reasonable responses for an employee with 13 years' service.
However, the tribunal upheld the claim for unlawful deductions from wages. The employer had failed to pay sick pay for part of the absence, amounting to £1,017.03 gross.
All other claims – including unfair dismissal, direct and indirect disability and age discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment, and victimisation – were dismissed.
Lessons & takeaways
- A thorough search for alternative light duties can make a capability dismissal fair, even for long-serving employees.
- Disputes over sick pay can lead to separate claims for unlawful deductions, separate from the fairness of dismissal.
- Employees should ensure they provide fit notes and follow reporting procedures to avoid disputes over sick pay.
- Employers should keep medical evidence up to date and consider updated reports before deciding to dismiss.
This case shows how a long-serving employee can be fairly dismissed for capability due to long-term sickness, even when there is a dispute about sick pay. The bus driver had worked for Metroline Travel Ltd for 13 years before osteoarthritis and gout led to a continuous absence of 24 weeks. The employer conducted a thorough search for light duties but found no suitable alternative roles. The tribunal accepted that the employer genuinely believed the driver was unlikely to return to work in the foreseeable future, based on medical reports and the length of absence.
What made the dismissal fair was the process: the employer considered the driver's long service, explored all options for alternative work, and gave him a chance to respond before the decision was made. The tribunal noted that the employer's search for light duties was 'thorough' and that the decision fell within the range of reasonable responses. This is a reminder that even employees with substantial service can be dismissed for capability if the employer follows a proper procedure and has a genuine medical basis.
However, the employer stumbled on the sick pay issue. The driver raised a grievance about non-payment of sick pay, and while the employer eventually paid some of it, there remained an outstanding amount of £1,017.03. The tribunal found this was an unlawful deduction from wages. This part of the claim succeeded because the employer had not paid the contractual sick pay due for the period in question.
What the losing side could have done differently
Metroline Travel Ltd could have avoided the unlawful deductions claim by paying sick pay promptly and correctly from the start. The dispute over sick pay escalated and led to a separate claim, even though the dismissal itself was fair. For employees, this case highlights the importance of keeping records of fit notes and following the employer's reporting procedures to avoid disputes over pay.
Why the result matters
This case is a useful example of how capability dismissals can be fair when the employer has genuinely explored alternatives and has a reasonable basis for believing the employee cannot return. It also shows that separate claims for unpaid wages can succeed even when the main dismissal claim fails. Employees considering similar claims should focus on whether the employer followed a fair process and considered all options, rather than just the fact of dismissal.
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