Dismissed after declining support: a fair capability decision for long-term sickness
A Decision Maker with three years' service was fairly dismissed after repeated sickness absence and declining offers of support. The tribunal upheld the Department for Work and Pensions' decision.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #occupational-health
- #attendance-management
- #work-related-stress
- #refusal-of-support
Key facts
- The claimant was employed as a Decision Maker from 14 September 2016 until 28 October 2019.
- The claimant had three substantial periods of sickness absence in the 12 months before dismissal, attributed to work-related stress.
- The claimant repeatedly declined offers of Occupational Health, Employee Assistance Programme, and stress reduction plans.
- The decision to dismiss was made by Ms Regan, who concluded there was poor prospect of reliable attendance.
- The appeal against dismissal was heard by Ms Qureshi, who upheld the decision.
- The tribunal found the dismissal was fair and the respondent acted reasonably.
Timeline
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Grievance raised against claimant
Colleague Ms B raised a grievance against the claimant following an incident on 20 April 2018.
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First period of sickness absence
Claimant began 50 working days' sick leave due to stress and back pain, returning on 20 January 2019.
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First H&AIM meeting
Meeting chaired by Mr Tomlinson; claimant declined stress risk assessment and Occupational Health referral.
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First written warning
Claimant received a first written warning for unsatisfactory attendance with a 6-month review period.
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Appeal against first warning
Claimant appealed the first warning; appeal was unsuccessful on 19 March 2019.
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Second period of sickness absence
Claimant began 22 working days' sick leave due to work-related stress, returning on 17 July 2019.
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Second H&AIM meeting
Claimant did not attend; Ms Gibson issued a final written warning on 6 August 2019.
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Third period of sickness absence
Claimant absent due to a virus from 22 August to 1 September 2019, exceeding trigger point for dismissal.
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Dismissal meeting
Claimant did not attend; her union representative attended. Ms Regan decided to dismiss.
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Dismissal effective
Claimant was handed dismissal letter and dismissed with notice.
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Appeal meeting
Claimant attended with union representative; Ms Qureshi upheld dismissal on 5 December 2019.
The legal issue
The tribunal had to decide whether the dismissal for capability (ill health absence) was fair, considering whether the employer acted reasonably in treating the poor prospect of reliable attendance as sufficient reason to dismiss.
The outcome
The tribunal decided that the claimant was not unfairly dismissed.
Key reasons:
- The employer had a genuine belief, based on the attendance record and the employee's refusal of support, that reliable attendance was unlikely.
- The dismissal process was fair: warnings were given, and the employee had the opportunity to engage but declined.
- The decision to dismiss fell within the range of reasonable responses for a capability dismissal.
No compensation was awarded as the claim failed.
Lessons & takeaways
- If you are off sick long-term, engaging with occupational health and support offers can strengthen your position and show you are trying to return.
- Employers can fairly dismiss for capability if attendance is poor and there is no reasonable prospect of improvement, even if the absence is due to work-related stress.
- Refusing reasonable support offers, such as stress risk assessments or Employee Assistance Programmes, may weaken a claim of unfair dismissal.
- Length of service matters: with three years' service, the employer's duty to explore alternatives is less extensive than for longer-serving employees.
This case shows how an employer can fairly dismiss an employee for long-term sickness absence when the employee has repeatedly declined offers of support. The claimant, a Decision Maker at the Department for Work and Pensions, had three significant periods of sickness absence in the year before dismissal, all attributed to work-related stress. The employer offered occupational health referrals, an Employee Assistance Programme, and stress reduction plans, but the claimant turned them down.
What the employer did right
The employer followed its attendance management procedure, issuing a first written warning and a final written warning before moving to dismissal. At each stage, the claimant was given the opportunity to engage but chose not to. The dismissing officer, Ms Regan, considered the attendance record and the lack of engagement with support, concluding that reliable attendance was unlikely. The appeal officer, Ms Qureshi, independently reviewed the decision and upheld it.
What the employee could have done differently
The claimant's refusal to accept support was a key factor. If she had engaged with occupational health or a stress risk assessment, the employer might have been able to identify adjustments or a phased return. Instead, the employer had little evidence that attendance would improve. The tribunal noted that the employer had acted reasonably in the circumstances.
Why this matters
This decision reinforces that employees on long-term sick leave cannot simply refuse all support and then claim unfair dismissal. Employers are expected to explore options, but if the employee blocks those efforts, a dismissal for capability may be fair. For anyone in a similar situation, engaging with support is crucial — both for your health and for your legal position.
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