Capability dismissal upheld after employee disengaged during long-term sickness
A customer service adviser with functional neurological disorder lost his unfair dismissal and disability discrimination claims. The tribunal found the employer's process was fair and the dismissal justified.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #disability-discrimination
- #functional-neurological-disorder
- #attendance-management
- #reasonable-adjustments
- #capability-dismissal
Key facts
- The claimant was employed as a Customer Service Adviser from 1 May 2018 until dismissal on 12 August 2022.
- The claimant had functional neurological disorder, anxiety, and depression, accepted as disabilities.
- The respondent had constructive knowledge of the claimant's disability from 24 November 2020.
- The claimant had a high absence record and was issued a written warning on 23 December 2021.
- The claimant disengaged from work after 6 January 2022 and did not return.
- The respondent dismissed the claimant on grounds of capability after a fair process.
Timeline
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Employment started
Claimant commenced employment as a Customer Service Adviser.
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Hospital admission
Claimant admitted to Kettering General Hospital with back pain and jerky movements; diagnosed with likely functional disorder.
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Claimant asserted disability
Claimant emailed respondent stating he considered himself disabled under the Equality Act.
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Definitive diagnosis
Claimant received formal diagnosis of functional neurological disorder from UCL Hospital specialist.
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Written warning issued
Claimant received a written warning for high absence levels after six Stage 2 meetings.
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Claimant stopped working
Claimant logged into work system, saw investigation invite, and never returned to work.
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Dismissal
Respondent dismissed claimant on grounds of capability due to ill health.
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Appeal hearing
Appeal hearing held in claimant's absence; dismissal upheld.
The legal issue
The tribunal had to decide whether the employer's decision to dismiss the employee on capability grounds due to long-term sickness was fair and whether it amounted to disability discrimination, including failure to make reasonable adjustments.
The outcome
The tribunal dismissed all claims, including unfair dismissal and disability discrimination.
The key reasons were:
- The employer had a fair process, including multiple meetings, a written warning, and an appeal.
- The employee disengaged from work after January 2022 and did not return, making dismissal on capability grounds reasonable.
- The employer had made reasonable adjustments, such as reduced hours and phased return, but the employee did not engage.
No compensation was awarded as the claims were dismissed.
Lessons & takeaways
- Employees who disengage from work and fail to engage with the employer's process risk losing their unfair dismissal claim, even if they have a disability.
- Employers should ensure they follow a fair process, including warnings, meetings, and appeals, to defend against unfair dismissal claims.
- Having a documented history of reasonable adjustments and attendance management can help employers show they acted reasonably.
- Employees should engage with occupational health and return-to-work plans to strengthen their position in a capability dismissal.
What this case shows
This case illustrates that even when an employee has a recognised disability and a long period of sickness, an employer can fairly dismiss on capability grounds if the process is thorough and the employee disengages. The customer service adviser had functional neurological disorder, anxiety, and depression, and had been off work since January 2022. Despite multiple attempts by the employer to manage his attendance and offer adjustments, the employee stopped engaging entirely.
What the employer did right
BSH Home Appliances Limited followed a structured attendance management process. The employee received a written warning after six stage 2 meetings, and the employer offered adjustments such as reduced hours and a phased return. When the employee did not return to work, the employer held a capability meeting, considered medical evidence, and allowed an appeal. The tribunal found this process fell within the range of reasonable responses.
Why this matters
For employees, the key takeaway is that disengaging from the process can undermine a claim. Even if you have a disability, you must cooperate with your employer's reasonable attempts to manage your absence. For employers, this case confirms that a well-documented process, with clear warnings and opportunities for the employee to engage, can successfully defend against unfair dismissal and discrimination claims.
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