Dismissed while on long-term sick leave: a capability process that fell short
An employment tribunal has ruled that a hire controller with degenerative disc disease was unfairly dismissed and discriminated against because of her disability. The respondent, Torrent Trackside Ltd, dismissed her without warning after 10 months' absence.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #disability-discrimination
- #degenerative-disc-disease
- #occupational-health
- #acas-code-uplift
- #polkey-reduction
Key facts
- The claimant was employed as a Hire Controller from 19 June 2019 until her dismissal on 7 October 2021.
- She had degenerative disc disease, which was accepted as a disability under the Equality Act 2010.
- She went on sick leave on 13 January 2021 due to neck and back pain, and later ruptured her Achilles tendon in April 2021.
- The respondent dismissed her for capability after 10 months' absence, without prior warning that dismissal was being considered.
- The tribunal found the dismissal procedurally unfair and discriminatory, but held that a fair dismissal could have occurred by the end of November 2021.
- The claimant's claims for failure to make reasonable adjustments were dismissed.
Timeline
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Initial job offer declined
The claimant was offered a role but declined due to back pain from degenerative disc disease, awaiting a steroid injection.
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Second job offer accepted
After successful injection, the claimant accepted a position as Hire Controller.
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Employment started
The claimant began work, declaring no medical conditions.
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Rota system introduced
The respondent moved to a 2 weeks in office, 2 weeks at home rota.
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Sick leave started
Claimant went off sick due to neck and back pain.
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First OH appointment
Occupational Health report confirmed degenerative disc disease as lifelong condition.
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Welfare meeting at home
Meeting held; claimant returned work equipment.
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Second OH appointment
OH report stated claimant was disabled and unfit for work for at least 10-12 weeks.
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Invitation to meeting
Letter sent for meeting to discuss condition and return to work, without mentioning dismissal.
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Dismissal
Claimant dismissed for capability; offered appeal to Marie Shaw.
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Judgment issued
Tribunal found unfair dismissal and discrimination, but held fair dismissal could have occurred by end of November 2021.
The legal issue
The tribunal had to decide whether the dismissal for capability was fair under section 98(4) of the Employment Rights Act 1996, whether it amounted to unfavourable treatment arising from disability under section 15 of the Equality Act 2010, and whether the respondent failed to make reasonable adjustments.
The outcome
The tribunal upheld the claimant's claims for unfair dismissal and discrimination arising from disability, but dismissed her claim for failure to make reasonable adjustments.
The key reasons were:
- The respondent dismissed the claimant without giving her any prior warning that dismissal was being considered, making the process procedurally unfair.
- The respondent relied on an occupational health report that was six weeks old, even though the claimant had offered an updated report from her consultant.
- However, the tribunal found that a fair dismissal could have occurred by the end of November 2021 (about six weeks after the actual dismissal), so any compensation will be limited to that period.
Compensation has not yet been determined and will be decided at a remedy hearing if the parties cannot agree.
Lessons & takeaways
- Employers should give employees a clear warning that dismissal is being considered before making a final decision, especially in long-term sickness cases.
- Refusing to consider an updated medical report when one is offered can make a dismissal procedurally unfair and discriminatory.
- Even where a fair dismissal is possible, failing to follow a proper process can result in a finding of unfair dismissal and disability discrimination.
- Employees with disabilities should be aware that employers have a duty not to treat them unfavourably because of something arising from their disability, unless it can be justified.
This case shows how a seemingly straightforward capability dismissal can go wrong when the employer rushes the process and ignores updated medical evidence. The claimant, a hire controller with degenerative disc disease, had been off sick for 10 months when her employer, Torrent Trackside Ltd, decided to dismiss her. The tribunal found that the employer failed to give her any warning that dismissal was being considered, and relied on a six-week-old occupational health report when the claimant had offered a more recent report from her consultant.
What the employer could have done differently
The employer could have avoided the finding of unfair dismissal by following a fair process. This would have included giving the claimant a clear warning that her job was at risk, considering the updated medical evidence, and exploring whether any adjustments could help her return to work. The tribunal noted that the claimant's disability (degenerative disc disease) was accepted, and dismissing her without proper consideration of her condition amounted to discrimination arising from disability.
Why this result matters
The case is a reminder that even if an employer believes a dismissal is justified on capability grounds, the process must be fair. The tribunal found that a fair dismissal could have occurred about six weeks later, so the claimant's compensation will be limited. But the finding of unfair dismissal and discrimination still stands, and the employer will have to pay compensation for that period. For employees in similar situations, this case highlights the importance of providing updated medical evidence and asking for a fair process before any decision is made.
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