Dismissed during long-term sick leave: a capability dismissal that went too fast
Employer dismissed a long-serving warehouse worker after eight months of sickness absence without obtaining an up-to-date medical report. The tribunal found the dismissal unfair.
1 min read · Last updated 17 May 2026
Case details
- #sick-leave
- #capability
- #long-term-absence
- #reasonable-adjustments
- #occupational-health
Key facts
- Length of service was 12 years with no prior disciplinary or attendance issues
- The capability decision relied on a medical report that was six months old at the date of the hearing
- The employer refused the claimant's specific request for an updated OH referral
- Light duties had been available previously but were withdrawn before the claimant had fully recovered
- No discussion of further reasonable adjustments took place before dismissal
Timeline
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Back injury at work
The claimant slipped on a wet warehouse floor and was signed off with a lower-back injury. He had previously worked for the employer for 11 years with no formal absence issues.
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First occupational health referral
OH advised the claimant was not fit to return to manual handling but recommended a phased return to lighter duties within 8–12 weeks.
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Phased return abandoned
After three weeks on lighter duties, the claimant was put back on full duties. His symptoms returned within days and he went off sick again.
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Capability process started
HR opened a formal capability process. The letter referred to "the business need for reliable attendance" and warned dismissal was possible.
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Capability hearing
The meeting relied on the March OH report — six months old. No new medical evidence was obtained. The claimant asked for another OH referral; the manager declined, saying "we already know what they'll say."
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Dismissal
The claimant was dismissed with notice on capability grounds.
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Appeal dismissed
The appeal hearing took 25 minutes and did not consider any further medical evidence.
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Tribunal judgment
The Employment Tribunal found the dismissal unfair. A reasonable employer would have obtained an updated medical opinion before deciding to dismiss after 12 years' service.
The legal issue
Whether a capability dismissal for long-term ill health was within the "range of reasonable responses" when the employer relied on a stale medical report and refused to obtain a fresh one.
The outcome
The tribunal upheld the unfair dismissal claim. While ill-health capability is a potentially fair reason under section 98(2)(a) ERA 1996, the dismissal was procedurally unfair under section 98(4). A reasonable employer faced with a long-serving employee would have:
- Obtained a current medical opinion
- Properly considered reasonable adjustments and a phased return
- Allowed the employee to engage meaningfully with the medical evidence
Compensation: basic award of £6,210 (statutory cap on a week's pay applied) plus a compensatory award of £12,240 for net loss of earnings to the date he secured comparable work. A 0% Polkey reduction was applied — the tribunal accepted that with proper process the dismissal might well not have happened at all.
Lessons & takeaways
- Capability decisions on long-term sickness should be supported by an up-to-date medical opinion — six months is usually too old.
- Length of service is a key factor in what a "reasonable response" looks like. A 12-year employee should normally get more process than a 6-month one.
- Refusing an employee's reasonable request for further medical evidence is a red flag for tribunals — it signals a pre-judged outcome.
- Reasonable adjustments and alternative duties must be actively explored before capability dismissal, not just mentioned in passing.
What this case shows in practice
This is a classic "right reason, wrong process" case. Long-term sickness can be a fair reason for dismissal — the law has never required employers to keep an employee on the books indefinitely. But the process has to be sound, and that means real, current medical evidence and a genuine consideration of whether the person can return.
The killer detail here was the manager's "we already know what they'll say" comment when the claimant asked for an updated OH referral. Tribunals notice statements like that. It strongly suggests the decision was already made before the capability hearing took place, which converts what could have been a fair dismissal into an unfair one.
What the employer should have done
A reasonable employer in this position would have:
- Commissioned a fresh occupational health report focused on a realistic return-to-work plan
- Convened a meeting to discuss the OH findings with the employee and any union or companion
- Genuinely explored whether the lighter-duties role could be made permanent or whether redeployment was possible
- Set a clear timeframe for review before any final decision
The pattern that wins these cases for employers is patience plus paperwork. The pattern that loses them is rushing the process to a conclusion that's already been decided.
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