Spray polisher unfairly dismissed after hip replacements: employer refused phased return

When a phased return offer is ignored

This case shows how an employer's failure to properly consider an employee's proposal for a phased return to work can render a capability dismissal unfair. The spray polisher, who had undergone bilateral hip replacements, was absent for over a year. When he was ready to return, he offered to start on four-hour shifts, but the employer refused, citing operational needs. Instead, the employer recruited a new sprayer and offered the claimant a lower-paid labourer role, which he declined. The tribunal found that the employer had not adequately consulted or explored the phased return option, making the dismissal procedurally unfair.

What the employer could have done differently

The employer could have agreed to a trial period of phased hours, or at least discussed the proposal further with the employee and his medical advisers. The tribunal noted that the employer's concerns about the employee's readiness were not unreasonable, but the decision to dismiss was premature. A more thorough consultation, including seeking updated medical evidence, might have led to a different outcome.

Why the result matters

This case is a reminder that employees on long-term sick leave have the right to be properly consulted before dismissal. However, the relatively low compensation reflects that the employee found a new job the day after dismissal with no loss of earnings. The rejection of the discrimination claims also shows that not every unfair dismissal of a disabled employee amounts to disability discrimination. The key is whether the employer's actions were because of the disability or a failure to make reasonable adjustments, which was not proven here.