Customer assistant unfairly dismissed after safety concerns ignored

What this case shows in practice

This case highlights the importance of employers investigating the underlying causes of an employee's long-term sickness absence. The claimant, a part-time customer assistant at Marks and Spencer, began her absence due to anxiety and depression following a customer incident where she confronted a shopper not wearing a mask. She also raised other safety concerns, including a previous armed robbery. Despite these concerns being flagged in occupational health reports and during meetings, the employer did not investigate them before deciding to dismiss on capability grounds.

What the losing side could have done differently

Marks and Spencer could have avoided this outcome by conducting a proper investigation into the claimant's safety concerns. Instead, they focused solely on the medical evidence that she was unfit for work with no foreseeable return. The tribunal noted that the employer failed to consider whether addressing the safety issues might have facilitated a return to work. A more thorough approach would have involved investigating the incidents, consulting with the claimant about possible adjustments, and considering whether a phased return or other support could have been offered.

Why the result matters for similar claims

This decision reinforces that capability dismissals must be based on a fair process that considers all relevant factors, including the reasons for the employee's ill health. Employers cannot simply rely on occupational health reports that say an employee is unfit for work; they must also explore whether the underlying causes can be addressed. The 25% Polkey reduction shows that even when the process is flawed, the tribunal may reduce compensation if it thinks dismissal was still likely. For employees, this case underscores the importance of raising safety concerns and ensuring they are documented, as this can form the basis of an unfair dismissal claim.