Cleaner with 14 years' service dismissed after phased return failed: capability dismissal upheld
A tribunal has upheld the dismissal of a cleaner with 14 years' service who could not cope with reduced duties due to osteoarthritis. The employer was found to have acted reasonably in dismissing for capability after a phased return failed.
2 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #osteoarthritis
- #occupational-health
- #redeployment-considered
- #phased-return
- #polkey-deduction
Key facts
- The claimant was employed as a cleaner from 22 January 2007 until dismissal on 12 March 2021.
- The claimant suffered from osteoarthritis causing mobility difficulties and significant sickness absence.
- The claimant had five periods of absence due to osteoarthritis in the last two years, totalling 129 days.
- The respondent obtained a GP report and an occupational health report, and implemented a phased return with light duties.
- The claimant returned to work on 1 March 2021 but after two days could not cope even with reduced duties.
- The respondent dismissed the claimant for capability reasons after a meeting on 3 March 2021.
Timeline
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Employment started
Claimant commenced employment as a cleaner.
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First absence due to osteoarthritis
Claimant absent from 8 May to 26 July 2018.
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Second absence
Claimant absent from 3 September to 30 November 2018.
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Home meeting with manager
Ms Coupland met claimant at home to discuss absence and support.
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Third absence
Claimant absent from 9 September to 6 November 2019.
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GP report obtained
GP report stated claimant not fit for work as cleaner.
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Furloughed due to Covid-19
Claimant placed on furlough until 19 September 2020.
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Final absence started
Claimant absent from 30 November 2020 until 1 March 2021.
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Occupational health assessment
Occupational health report recommended phased return and light duties.
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Formal meeting
Meeting to discuss absence, occupational health recommendations, and redeployment.
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Return to work
Claimant returned on phased return with light duties.
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Final meeting and dismissal
Claimant said he was in agony; dismissal letter sent same day.
The legal issue
The tribunal had to decide whether the cleaner's dismissal for capability due to ill health was fair, and whether the employer discriminated by dismissing him because of something arising from his disability or failed to make reasonable adjustments.
The outcome
The tribunal dismissed all claims: unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments.
- The employer had obtained GP and occupational health reports, implemented a phased return with light duties, and considered redeployment.
- The cleaner returned but could not cope after two days, and the employer dismissed him after a meeting.
- The tribunal found the employer's decision was within the range of reasonable responses and that reasonable adjustments had been made.
No compensation was awarded.
Lessons & takeaways
- Employers should obtain up-to-date medical evidence and consider occupational health recommendations before dismissing for capability.
- Implementing a phased return and light duties can demonstrate that an employer has acted reasonably.
- Redeployment should be considered, but there is no obligation to create a new role or wait indefinitely for surgery.
- Long service does not automatically make a dismissal unfair if the employee cannot perform their role despite adjustments.
When a phased return isn't enough
This case shows that even long-serving employees can be fairly dismissed for capability if their health prevents them from doing their job, despite reasonable adjustments. The cleaner had worked for Pektron Group Limited for 14 years, but osteoarthritis caused significant mobility issues and 129 days of absence over two years.
The employer took several steps to support him: they obtained a GP report and an occupational health assessment, which recommended a phased return and light duties. They also considered redeployment, but no suitable sedentary roles were available. When the cleaner returned on 1 March 2021, he could only manage two days before saying he was in agony. The employer held a meeting and dismissed him the same day.
What the employer did right
The tribunal noted that the employer had a genuine concern about the cleaner's ability to perform his role, and that the decision to dismiss was based on the medical evidence and the failed return. The employer had also considered alternatives, such as redeployment and waiting for surgery, but concluded these were not viable. The tribunal found that the employer's actions fell within the range of reasonable responses for a capability dismissal.
Why the discrimination claims failed
The cleaner also claimed that his dismissal was discriminatory because of his disability. However, the tribunal found that the employer had a legitimate aim – ensuring the business had a reliable workforce – and that the dismissal was a proportionate means of achieving that aim. The employer had made reasonable adjustments by implementing the phased return and light duties, and there was no evidence that they had failed to make any other adjustments.
What this means for similar cases
This case highlights that employers who follow proper procedures – obtaining medical advice, considering adjustments, and exploring redeployment – can fairly dismiss an employee who is unable to perform their role due to long-term sickness. However, each case turns on its facts, and employers should ensure they have up-to-date medical evidence and consider all options before dismissing.
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