Dismissed during long-term sick leave: small employer's decision upheld despite lack of medical report

A small employer's difficult decision

This case shows how employment tribunals balance the needs of a small business against the rights of an employee on long-term sick leave. The claimant, a shift manager and transport planner, had been off work for eight months with a range of conditions including chronic fatigue syndrome, sleep apnoea and diabetes. His employer, a frozen food transport company with only around 10 staff, had to decide whether to keep his job open indefinitely.

The tribunal accepted that the employer genuinely believed the claimant was no longer capable of doing his job. It had held welfare meetings, tried to obtain a GP report (though the report never arrived), and ultimately dismissed him. On appeal, the employer offered to pay for an occupational health assessment, but the claimant declined. The tribunal found that the employer had done enough, particularly given its small size.

What the employer did right

Although the employer did not have an up-to-date medical report at the time of dismissal, the tribunal noted that it had taken reasonable steps to get one. The claimant had signed a consent form, but the GP did not respond. Crucially, the employer offered to obtain an occupational health report at the appeal stage – an offer the claimant turned down. The tribunal saw this as a reasonable attempt to gather evidence, and the claimant's refusal weakened his case.

The employer also consulted the claimant throughout the process, held a capability hearing, and considered alternatives such as redeployment (though no suitable roles existed). The tribunal concluded that the dismissal was within the range of reasonable responses for a small employer.

Why the discrimination claim failed

The claimant also argued that his dismissal amounted to discrimination arising from disability. The tribunal accepted that his sickness absence arose from his disability, but found that the dismissal was a proportionate means of achieving the legitimate aim of business efficacy. The employer needed a reliable transport planner, and the claimant had been absent for eight months with no clear return date. The tribunal balanced the claimant's needs against the employer's business needs and found the decision to dismiss was justified.

Key takeaway for similar cases

This case is a reminder that tribunals will consider the size and resources of an employer when assessing fairness. Small employers are not expected to have the same HR machinery as large corporations. However, they must still show they have genuinely tried to explore the medical position and consulted the employee. For employees, accepting an offer of an occupational health report can be crucial – declining it may be seen as failing to engage with the process.