Cashier dismissed for intermittent sickness absence: fair dismissal upheld
A cashier with nearly 3 years' service was fairly dismissed for capability after failing to meet an attendance objective. The tribunal rejected her claims of unfair dismissal, breach of contract, and unlawful deductions.
1 min read · Last updated 18 May 2026
Case details
- #short-term-intermittent-absence
- #capability-dismissal
- #attendance-objective
- #occupational-health-non-engagement
- #polkey-not-applied
Key facts
- The claimant was employed as a cashier from 3 January 2020 until dismissal on 23 February 2021.
- She had significant intermittent sickness absence from 2019 onwards, with absences for various unconnected reasons.
- The respondent set an attendance objective of 4% absence over six months from September 2020.
- The claimant's absence level remained high (15.3% during the objective period, 36% over 12 months).
- The claimant did not engage with occupational health or attend several capability meetings.
- The respondent dismissed the claimant for capability (ill-health) after following its sickness absence policy.
Timeline
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Started employment with Marks & Spencer
Claimant began working as a cashier for Marks & Spencer, which later transferred to HSBC.
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Employment transferred to HSBC
Claimant's employment moved to HSBC UK Bank Plc.
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Absence Attendance Plan (AAP) started
Respondent commenced a three-month AAP requiring substantial improvement in attendance.
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Capability meeting set attendance objective
A formal capability meeting set a six-month attendance objective of 4% absence, with warning of potential dismissal.
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Holiday reduction of 42 hours
Respondent reduced claimant's holiday entitlement by 42 hours due to high absence.
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Invitation to final capability hearing
Claimant invited to a formal capability hearing due to failure to meet attendance objective.
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Dismissal
Claimant dismissed on grounds of capability (ill-health) after failing to improve attendance.
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Appeal hearing
Appeal against dismissal heard; decision upheld.
The legal issue
The tribunal had to decide whether the dismissal was fair for capability (ill-health) and whether the employer made unlawful deductions from wages or breached contract regarding notice pay, expenses, and holiday pay.
The outcome
The tribunal dismissed all claims.
- The dismissal was fair: the respondent had a genuine concern about the claimant's high absence levels (36% over 12 months) and followed its sickness absence policy, including setting a 4% attendance objective and offering occupational health support. The claimant did not engage with the process.
- The breach of contract claim failed: the claimant was paid her notice pay and was not entitled to the claimed expenses of £129.
- The unlawful deductions claim failed: no unauthorised deductions were made in the February and March 2021 payslips.
- The holiday pay claim failed: the respondent did not unlawfully refuse the claimant the right to take holiday.
Lessons & takeaways
- Employers can fairly dismiss for intermittent short-term absence if they follow a proper process, including setting clear attendance objectives and offering support like occupational health.
- Employees who fail to engage with capability meetings or occupational health may weaken their case for unfair dismissal.
- Length of service is relevant: with nearly 3 years' service, the employer's process was reasonable; longer-serving employees may expect more steps.
- Claims for breach of contract or unlawful deductions require clear evidence of an entitlement; the tribunal will scrutinise whether sums were actually due.
What this case shows
This case illustrates how employers can fairly manage intermittent short-term sickness absence when they follow a structured process. The cashier had significant absence levels—36% over 12 months—and the bank set a clear attendance objective of 4% over six months. When the claimant failed to meet that objective and did not engage with occupational health or attend several capability meetings, the bank dismissed her for capability (ill-health).
What the employer did right
HSBC followed its sickness absence policy step by step: it started with an Attendance Plan, held formal capability meetings, set a measurable objective, warned of potential dismissal, and offered occupational health support. The tribunal noted that the claimant's non-engagement was a key factor. The dismissing officer considered the impact on the business and the lack of improvement, and the appeal process was fair.
Why the result matters
For employees with similar short-term absence patterns, this case shows that employers can dismiss fairly if they give clear warnings and opportunities to improve. However, the outcome might differ for longer-serving employees or where the employer fails to offer support. The tribunal also rejected the claimant's other claims, confirming that employers are not liable for deductions or breach of contract if they have paid all sums due.
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