Long-term sickness dismissal upheld: employer followed proper process
A tribunal has ruled that Openreach fairly dismissed a Customer Service Engineer with 13 years' service after 271 days of absence, finding the employer's process was reasonable and not discriminatory.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed as a Customer Service Engineer from 13 September 2007 until his dismissal on 29 May 2020.
- The claimant was absent from work for 271 days due to stress and anxiety.
- The claimant refused offers to transfer to a different patch and declined mediation.
- The claimant alleged race discrimination, harassment, and victimisation, but the tribunal found no evidence of racial motivation.
- The respondent followed its absence management policy and consulted the claimant before dismissal.
- The claimant's appeal against dismissal was heard and rejected.
Timeline
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Employment start
Claimant began employment as a Customer Service Engineer.
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Initial formal warning
Mr Swietochowski issued an initial formal warning for unsatisfactory attendance.
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Final written warning
Mr Hodgkiss issued a 12-month final written warning for unprofessional behaviour.
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Appeal against warning dismissed
Mr Miller dismissed the claimant's appeal against the final written warning.
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Grievance raised
Claimant raised a grievance against Mr Swietochowski alleging bullying and harassment.
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Sick leave begins
Claimant went on sick leave with stress.
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Grievance not upheld
Mr Young did not uphold the claimant's grievance.
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Second sick leave begins
Claimant went off sick with stress and anxiety, remaining absent until dismissal.
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Occupational health assessment
OH report stated claimant fit for work but barriers to return needed resolution.
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Dismissal decision
Mr Hodgkiss sent termination letter, ending employment on 29 May 2020.
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Appeal hearing
Mr Kelly heard the claimant's appeal against dismissal; appeal not upheld.
The legal issue
The tribunal had to decide whether the dismissal was unfair and whether the employer subjected the employee to direct race discrimination, harassment, or victimisation.
The outcome
The tribunal dismissed all claims, including unfair dismissal and race discrimination.
- The employee was absent for 271 days due to stress and anxiety.
- Openreach followed its absence management policy, offered alternative patches and mediation, and consulted the employee before dismissal.
- The tribunal found no evidence of racial motivation in any of the alleged incidents.
- No compensation was awarded as all claims failed.
Lessons & takeaways
- Employers should follow their own absence management policies and document each step to show a fair process.
- Offering alternative roles or adjustments can strengthen a capability dismissal case.
- Long-serving employees are entitled to a thorough process, but if the employer follows policy and consults, dismissal may still be fair.
- Allegations of discrimination must be supported by evidence; a tribunal will look for a clear link to a protected characteristic.
A fair process in long-term sickness cases
This case shows that even after 13 years of service, an employer can fairly dismiss an employee for long-term sickness if it follows a proper process. The employee was absent for 271 days with stress and anxiety, and Openreach engaged with him throughout, offering alternative patches and mediation. When he declined these, the company proceeded to dismissal after consultation.
What the employer did right
Openreach had a clear absence management policy and applied it consistently. It obtained an occupational health report, held meetings to discuss the employee's situation, and considered reasonable adjustments. The employee's refusal to engage with alternatives was a key factor. The tribunal noted that the employer's decision fell within the 'range of reasonable responses' – the legal test for fairness.
Why discrimination claims failed
The employee, who is black, alleged that his treatment was racially motivated. However, the tribunal found no evidence to support this. The managers involved had given non-discriminatory reasons for their actions, and the employee's own evidence did not show any racial animus. This highlights the importance of objective evidence in discrimination claims.
Key takeaway for employees
If you are off sick long-term, engaging with your employer's attempts to find a solution – such as alternative roles or mediation – can be crucial. Refusing reasonable offers may weaken your position if dismissal follows. For employers, the message is clear: follow your policy, document everything, and consider all options before dismissing on capability grounds.
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