Bus driver dismissed after refusing to engage: tribunal upholds capability decision
A bus driver with 14 years' service was fairly dismissed for capability after he refused to attend occupational health appointments or engage with his employer. The tribunal also found no disability discrimination.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was a bus driver employed by Metroline Travel Ltd from 16 July 2007 until dismissal in June 2021.
- The claimant was absent from work from 20 February 2021 due to work-related stress and depression.
- The claimant refused to engage with the respondent, attend meetings, or undergo further occupational health assessments.
- The respondent dismissed the claimant for capability reasons due to his lengthy absence and lack of cooperation.
- The tribunal found the claimant was disabled due to depression at the material time.
- The tribunal held that the dismissal was not unfair and not discriminatory.
Timeline
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Partner's death
The claimant's partner died from Covid-19, which he said triggered his depression.
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Sick leave begins
The claimant went on sick leave with work-related stress.
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Occupational health report
An OH report noted the claimant was unfit for work due to mental health symptoms and perceived managerial issues.
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Claimant refuses further OH
The claimant stated he would not attend further OH assessments and would 'let the courts decide his fate'.
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Capability hearing invitation
The claimant was invited to a capability hearing but did not attend.
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Dismissal
Mr Rogers dismissed the claimant with 12 weeks' notice pay for capability reasons due to ill health.
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Appeal lodged
The claimant appealed the dismissal.
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Tribunal hearing
The substantive hearing took place over two days.
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Judgment issued
The tribunal dismissed all claims and ordered the £1,000 deposit to be paid to the respondent.
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Costs judgment
The claimant was ordered to pay £3,125 in costs for unreasonable conduct.
The legal issue
The tribunal had to decide whether the claimant's depression made him disabled, whether his dismissal was unfair, and whether it amounted to direct disability discrimination.
The outcome
The tribunal dismissed all claims. It found that although the claimant was disabled due to depression, the employer had a potentially fair reason for dismissal (capability) and acted reasonably in all the circumstances. The claimant's refusal to engage with occupational health or attend meetings meant the employer had little alternative but to dismiss.
- The claimant was ordered to pay his £1,000 deposit to the respondent.
- In a later costs judgment, he was ordered to pay £3,125 in costs for unreasonable conduct.
Lessons & takeaways
- If you are on long-term sick leave, engaging with your employer's occupational health process is crucial – refusing can undermine a future unfair dismissal claim.
- An employer can fairly dismiss for capability if an employee refuses to cooperate, even if the employee is disabled, as long as the process is reasonable.
- Pursuing a claim without reasonable prospects can lead to a deposit order and costs being awarded against you.
When refusal to engage becomes a barrier to a fair dismissal claim
This case shows the limits of protection for disabled employees who are unwilling to participate in their employer's capability process. The claimant, a bus driver with 14 years' service, went on sick leave in February 2021 after his partner died from Covid-19. He was diagnosed with depression and work-related stress. However, he repeatedly refused to attend occupational health appointments or capability meetings, telling his employer he would 'let the courts decide his fate'.
Metroline Travel Ltd dismissed him in June 2021 on capability grounds. The tribunal accepted that the claimant was disabled, but held that the dismissal was fair and not discriminatory. The employer had a potentially fair reason – capability – and acted within the range of reasonable responses. The claimant's refusal to engage left the employer with no realistic alternative.
What the employer did right
Metroline obtained an occupational health report, invited the claimant to meetings, and gave him multiple opportunities to cooperate. When he refused, they proceeded to a capability hearing in his absence and dismissed with notice pay. The tribunal noted that the employer's process was reasonable, especially given the claimant's clear statements that he would not engage.
What this means for similar claims
Employees who are absent due to ill health should be aware that simply refusing to engage with their employer's reasonable requests for medical information or meetings can seriously weaken any later claim for unfair dismissal or discrimination. While disability is a protected characteristic, it does not give an automatic right to remain in employment if the employee frustrates the employer's attempts to manage the situation. The case also serves as a warning about the risks of pursuing weak claims: the claimant had to pay a £1,000 deposit and was later ordered to pay £3,125 in costs.
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