Hair assessor dismissed after 22-month sickness absence: tribunal upholds capability decision
A tribunal has ruled that Skills to Group Limited fairly dismissed a hair assessor with 4 years' service who had been absent for 22 months due to complications from knee surgery. The employer's concerns about workplace safety justified the dismissal.
1 min read · Last updated 18 May 2026
Case details
Key facts
- Mrs Clifford had a right knee replacement in February 2019 with complications causing impaired mobility and long-term sickness absence.
- She was absent from work for 22 months before dismissal, from 25 February 2019 to 24 December 2020.
- The respondent accepted Mrs Clifford was disabled and knew of her disability and its effects.
- The respondent obtained an occupational health report and a health and safety consultant's report, both concluding that adjustments could not guarantee a safe workplace.
- Mrs Clifford was offered a modified role of 2 days per month, which she refused.
- The respondent dismissed Mrs Clifford on grounds of capability, citing inability to provide a safe workplace and no foreseeable return to full duties.
Timeline
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Employment start
Mrs Clifford joined Skills to Group Limited as a Hair Assessor.
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Sick leave start
Mrs Clifford went on sick leave due to complications from a right knee replacement.
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Return to work indication
Mrs Clifford indicated she wished to return to work with adjustments.
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Intention to return
Mrs Clifford informed the respondent she intended to return to work on 6 April 2020.
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Health and safety consultant report
Mr Peters reported that Mrs Clifford expected to be furloughed and that adjustments were difficult.
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Occupational health report
Occupational health report suggested adjustments but noted uncertainty about fitness for full role.
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Company's conclusions
Ms Chaffe wrote to Mrs Clifford stating no sites could accommodate all adjustments and invited to capability hearing.
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Capability meeting
First capability meeting held; Mrs Clifford disputed the company's conclusions.
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Final capability meeting
Final capability meeting; Mrs Clifford refused modified role offer.
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Dismissal
Mrs Clifford was dismissed on grounds of capability with 4 weeks' notice expiring 24 December 2020.
The legal issue
The tribunal had to decide whether the dismissal of a long-term sick employee on capability grounds was unfair and whether it amounted to discrimination arising from disability. The key question was whether the employer's safety concerns justified the dismissal despite the employee's disability.
The outcome
The tribunal dismissed all claims, including unfair dismissal, disability discrimination, and a working time regulations claim.
Key reasons:
- The employer had obtained occupational health and health and safety reports showing that adjustments could not guarantee a safe workplace.
- The employee was offered a modified role of 2 days per month but refused it.
- The employer's legitimate aim of providing a safe working environment outweighed the employee's interests.
No compensation was awarded as all claims were dismissed.
Lessons & takeaways
- Employers should obtain up-to-date medical and safety evidence before dismissing on capability grounds, especially where disability is involved.
- Offering a modified role, even if refused, can strengthen an employer's case that it considered alternatives.
- Employees should engage with reasonable adjustment offers; refusing them may undermine a discrimination claim.
- Long-term sickness absence can justify dismissal if there is no realistic prospect of a safe return to full duties.
A case about safety and sickness
This case shows how employers can lawfully dismiss a long-term sick employee when workplace safety is at stake. The claimant, a hair assessor with four years' service, had been absent for 22 months after complications from a knee replacement. The employer, Skills to Group Limited, knew she was disabled and had tried to accommodate her, but ultimately concluded that no adjustments could guarantee a safe working environment.
What the employer did right
The employer obtained two expert reports: one from occupational health and one from a health and safety consultant. Both indicated that while some adjustments were possible, they could not eliminate safety risks. The employer also offered a modified role of just two days per month, which the claimant refused. The tribunal accepted that the employer's aim of providing a safe workplace was legitimate and that dismissal was proportionate, given the lack of a foreseeable return to full duties.
What the employee could have done differently
The claimant argued that the employer had taken an over-rigorous approach to safety. However, the tribunal noted that she had refused the modified role and had not provided medical evidence to show she could safely perform her job. If she had engaged with the adjustment process and provided alternative evidence, the outcome might have been different.
Why this matters
This case is a reminder that disability discrimination claims based on dismissal are not automatically successful. Employers must balance their duty to make reasonable adjustments with their duty to ensure a safe workplace. Where an employer can show it has considered alternatives and acted on expert advice, a dismissal on capability grounds may be fair.
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