Customer assistant who asked to be dismissed: capability dismissal upheld
A customer assistant with eight years' service who asked to be dismissed on capability grounds lost her unfair dismissal claim. The tribunal found Sainsbury's acted reasonably.
2 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #occupational-health
- #final-written-warning
- #request-to-be-dismissed
- #covid-19-concerns
Key facts
- The claimant was employed as a Customer Assistant from September 2012 until dismissal on 21 October 2020.
- She had a final written warning for absence, issued on 17 December 2019, which was still live.
- She went on sick leave on 12 May 2020 due to anxiety and depression and never returned.
- Her GP and an Occupational Health report stated she was unfit for work with no adjustments possible.
- The claimant asked to be dismissed on grounds of capability, confirmed in text messages and at the appeal.
- The respondent dismissed her for capability after four absence review meetings.
Timeline
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Employment started
Claimant began working as a Customer Assistant at Sainsbury's Lampeter store.
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Final written warning
Claimant received a final written warning due to absences, valid for 12 months.
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Raised till distance concern
Claimant told manager Alun Grabham that the distance between tills and packing area was less than two metres.
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Sick leave started
Claimant went on sick leave due to anxiety and depression.
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First absence review meeting
First ARM with Clare Jenkins; claimant still unfit.
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Second absence review meeting
Second ARM; claimant still unfit.
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Third absence review meeting
Informal ARM on claimant's birthday; no written invitation.
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Fourth absence review meeting
ARM where claimant allegedly asked to be dismissed; OH report discussed.
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Dismissal
Final ARM with Alun Grabham; claimant dismissed for capability with immediate effect.
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Appeal hearing
Appeal heard by Matthew Clarke; dismissal upheld on 23 November 2020.
The legal issue
The tribunal had to decide whether the claimant was unfairly dismissed (ordinary and automatically for protected disclosures), whether she was discriminated against because of her disability, and whether Sainsbury's failed to make reasonable adjustments.
The outcome
The tribunal dismissed all claims. It found that Sainsbury's had a genuine reason for dismissal (capability) and followed a fair procedure, including four absence review meetings and an appeal. The claimant had a final written warning for absence and had asked to be dismissed on multiple occasions.
No compensation was awarded as the claims were unsuccessful.
Lessons & takeaways
- If you are off sick long-term and want to be dismissed, make sure you understand the implications—it can strengthen the employer's case that dismissal is reasonable.
- Employers should obtain up-to-date medical evidence before dismissing for capability, but if the employee agrees with the outcome, the process may still be fair.
- A final written warning for absence can make it easier for an employer to justify dismissal for capability if the absence continues.
- Raising health and safety concerns about social distancing does not automatically protect you from dismissal if the real reason is capability.
When an employee asks to be dismissed
This case shows that an employer can fairly dismiss an employee who is long-term sick, even when the employee has a disability, if the employee themselves wants to be dismissed and the employer follows a proper process. The customer assistant had been off work since May 2020 with anxiety and depression. She had a final written warning for absence from December 2019. During her sick leave, she told her manager she wanted to be dismissed on capability grounds—something she repeated in text messages and at her appeal.
Sainsbury's held four absence review meetings over five months, obtained an occupational health report confirming she was unfit with no adjustments possible, and ultimately dismissed her in October 2020. The tribunal accepted that the claimant genuinely wanted to be dismissed, and that this made the dismissal reasonable. The claimant also argued that she had made protected disclosures about social distancing at the tills, but the tribunal found these were not the reason for her dismissal.
What could have been done differently?
From the employer's perspective, Sainsbury's did many things right: they held multiple meetings, considered medical evidence, and gave the claimant a chance to appeal. However, the case might have been avoided if the employer had explored whether any adjustments could have helped the claimant return to work, even if the medical report said none were possible. For employees, the lesson is that asking to be dismissed can backfire if you later change your mind—it undermines a claim that the dismissal was unfair.
Why this matters
This decision confirms that a capability dismissal can be fair even when the employee has a disability, provided the employer has a genuine reason and follows a fair procedure. It also highlights that an employee's own request to be dismissed is a relevant factor. For employees considering a similar claim, the key is to show that the employer did not act reasonably—for example, by rushing the process or ignoring medical advice. Here, the tribunal found Sainsbury's acted reasonably throughout.
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