Car park enforcement officer dismissed after 1,163 days off sick: capability dismissal upheld
An employment tribunal has upheld the dismissal of a car park enforcement officer who had been absent for 1,163 days out of 1,992 due to bipolar disorder, finding the NHS trust acted reasonably.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #bipolar-disorder
- #occupational-health
- #relapse-prevention-plan
- #ill-health-retirement
- #car-park-enforcement
Key facts
- The claimant was employed as a car park enforcement officer from 8 June 2015.
- He had three long-term sickness absences due to bipolar affective disorder, totalling 1163 calendar days out of 1992 possible days.
- The respondent made numerous adjustments including redeployment to a bespoke car park role.
- The most recent OH report (20 November 2020) stated the claimant was fit to return on a phased basis but also supported ill-health retirement.
- The claimant's private psychiatrist (Dr El-Khayat) reported reduced risk of relapse, but the respondent was not satisfied attendance would improve.
- The claimant was dismissed on 9 December 2020 for capability reasons due to poor attendance.
Timeline
-
Employment started
Claimant commenced work as a Security and Car Park Officer at Salisbury District Hospital.
-
First long-term absence
Claimant began first significant sickness absence due to bipolar disorder, lasting until 14 January 2017.
-
Second long-term absence
Claimant began second long-term absence, lasting until 9 January 2018.
-
Third long-term absence
Claimant began third long-term sickness absence, which continued until dismissal.
-
Redeployment to car park attendant
Claimant was redeployed to a car park attendant role, later made substantive on 1 February 2019.
-
Latest OH report
Occupational Health report stated claimant fit to return on phased basis but supported ill-health retirement due to attendance history.
-
Absence review meeting
Meeting held via video; claimant attended with his sister. Decision to dismiss was taken.
-
Dismissal
Claimant's employment terminated with payment in lieu of notice, effective date of termination.
-
Appeal dismissed
Appeal hearing on 2 March 2021; outcome letter dated 8 March 2021 upheld dismissal.
-
Post-dismissal relapse
Claimant relapsed around September/October 2021, leading to hospitalisation from 12 November 2021 to 15 March 2022, and again from October 2022 to 12 January 2023.
The legal issue
The tribunal had to decide whether the dismissal for capability (long-term sickness) was fair under s.98(4) ERA and whether it amounted to unlawful discrimination arising from disability under s.15 Equality Act 2010, specifically whether it was a proportionate means of achieving a legitimate aim.
The outcome
The tribunal dismissed both the unfair dismissal and disability discrimination claims.
- The trust had a genuine belief that the claimant was no longer capable of performing his duties due to his long-term sickness absence.
- The trust adequately consulted the claimant and carried out a reasonable investigation, including obtaining up-to-date medical evidence.
- The decision to dismiss was within the range of reasonable responses, given the extreme level of absence and the trust's legitimate aim of maintaining a reliable workforce.
- No compensation was awarded.
Lessons & takeaways
- Long-term sickness absence can justify dismissal if the employer has a genuine belief in incapability and follows a fair process.
- Employers should obtain up-to-date medical evidence and consider adjustments before dismissing on capability grounds.
- A history of very high absence levels can outweigh a recent medical report suggesting fitness to return.
- Disability discrimination claims based on dismissal for sickness absence may fail if the employer can show the dismissal was a proportionate means of achieving a legitimate aim.
A case of extreme absence
This case illustrates the difficult balance employers must strike when an employee has a long-term health condition but is absent for extended periods. The car park enforcement officer had been off sick for 1,163 days out of a possible 1,992 – nearly 60% of his employment. The NHS trust had made numerous adjustments, including redeployment to a bespoke role, but attendance did not improve.
What the employer did right
The trust obtained an occupational health report in November 2020 which stated the claimant was fit to return on a phased basis but also supported ill-health retirement. The trust was not satisfied that attendance would improve, given the history. It held a review meeting, considered the claimant's representations, and dismissed with notice. The tribunal found this process was within the range of reasonable responses.
Why the discrimination claim failed
The claimant argued that the dismissal was discrimination arising from disability. The tribunal accepted that the dismissal was because of something arising from his disability (the absence). However, it found that the trust had a legitimate aim – ensuring a reliable workforce – and that dismissal was a proportionate means of achieving that aim, given the extreme level of absence and the lack of realistic prospects of improvement.
Key takeaway for employees
While employers must make reasonable adjustments and consider up-to-date medical evidence, there comes a point where the level of absence becomes unsustainable. Employees with long-term conditions should engage with occupational health and explore all options, including ill-health retirement, before the situation reaches dismissal.
Similar cases
Paramedic with 29 years' service dismissed on capability grounds after ill-health retirement application supported by employer
A paramedic with nearly three decades of service was fairly dismissed on capability grounds after a thorough absence management process, the tribunal has ruled. All claims of unfair dismissal and disability discrimination were dismissed.
NHS employee dismissed after two years' sick leave: capability decision upheld
An NHS trust fairly dismissed a theatre nurse with 10 years' service after she was absent for over two years due to stress. The tribunal found the employer acted reasonably in concluding she would not return to her role.
Long-term sickness dismissal: employer's flawed process saved by fair appeal
A station support assistant lost his unfair dismissal claim after 20 months off work. The tribunal found the initial decision to dismiss was premature, but the appeal corrected the flaw.
Meter reader with 16 years' service unfairly dismissed for ill health capability
A meter reader who was dismissed while on long-term sick leave after a motorbike accident has won his unfair dismissal and disability discrimination claim. The tribunal found that Morrison Data Services Ltd failed to obtain an up-to-date occupational health report before deciding to dismiss.