Solid surface fitter dismissed after two years off sick: capability dismissal upheld
An employment tribunal has rejected an unfair dismissal claim from a solid surface fitter who was dismissed on capability grounds after two years of sickness absence, finding the employer acted reasonably.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed as a Solid Surface Fitter from January 2016 until dismissal in October 2020.
- He suffered a back injury at work on 29 October 2018 and never returned to work.
- The claimant made three protected public interest disclosures in May 2019 about health and safety concerns.
- The respondent obtained three occupational health reports, all indicating the claimant was unfit for his substantive role.
- The claimant refused to apply for alternative desk-based roles and insisted on adjustments to his original role.
- The dismissing officer and appeal officer were unaware of the protected disclosures and their decisions were not influenced by them.
Timeline
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Employment commenced
Claimant started work as an Area Handyman, later became a Solid Surface Fitter.
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Work injury
Claimant injured his back while moving granite worktops and commenced long-term sickness absence.
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First protected disclosure
Claimant emailed senior managers raising health and safety concerns about unsafe working practices.
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Third protected disclosure
Claimant emailed senior managers attaching his formal grievance and alleging falsification of RIDDOR reports.
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Grievance hearing
Claimant attended a grievance hearing chaired by Mr Claydon; grievance was rejected on 26 June 2019.
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Formal capability meeting
Meeting chaired by Mr Edwards; claimant confirmed he could not return to his substantive role and did not want alternative jobs.
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Dismissal letter
Mr Edwards dismissed the claimant by reason of capability due to long-term sickness absence.
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Appeal hearing
Appeal chaired by Mr Brown; appeal was rejected on 12 January 2021.
The legal issue
The tribunal had to decide whether the dismissal was unfair generally and/or automatically unfair because the claimant had made protected public interest disclosures about health and safety concerns.
The outcome
The tribunal dismissed all claims. It found that the dismissal was for capability due to long-term sickness, not because of the protected disclosures. The employer had obtained three occupational health reports, all stating the claimant was unfit for his substantive role. The claimant refused to apply for alternative roles and insisted on adjustments to his original job, which were not feasible. The dismissing and appeal officers were unaware of the disclosures, so the dismissal was not automatically unfair.
Lessons & takeaways
- If you are unable to do your job due to long-term sickness, be open to considering alternative roles offered by your employer – refusing may weaken a later unfair dismissal claim.
- Employers should obtain up-to-date medical evidence before dismissing on capability grounds; relying on old reports can be risky.
- Making a protected disclosure does not automatically protect you from a fair dismissal for an unrelated reason, such as capability.
- Length of service and the nature of the role matter: a physically demanding job with no light duties may justify dismissal sooner than a desk-based role.
A long road to dismissal
This case shows how a long-term sickness absence can lead to a fair dismissal when the employee is unable to return to their physically demanding role and refuses suitable alternative work. The claimant, a solid surface fitter, injured his back at work in October 2018 and never returned. Over two years, the employer obtained three occupational health reports, all confirming he was unfit for his role, which involved heavy lifting of granite worktops.
The employer offered desk-based roles, but the claimant refused to apply, insisting instead on adjustments to his original job. The tribunal found that the employer acted reasonably: it explored alternatives, but the claimant's refusal left no option but to dismiss on capability grounds.
The protected disclosure angle
The claimant had raised health and safety concerns in May 2019, which were protected disclosures. However, the tribunal found that the dismissing and appeal officers were unaware of these disclosures, so they could not have influenced the decision. This highlights that a protected disclosure does not create a 'safe harbour' if the dismissal is for a separate, fair reason.
What the employer did right
The employer followed a fair process: it obtained medical advice, held a capability meeting, considered alternative work, and allowed an appeal. The key factor was the claimant's refusal to engage with alternative roles. Had he applied, the outcome might have been different. For employees in similar situations, the lesson is clear: if your employer offers alternative work, consider it seriously – it may be your best chance to keep your job.
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