Production operative dismissed after year-long absence: tribunal strikes out unfair dismissal claim
A production operative who was dismissed after over a year of sickness absence has had her unfair dismissal and disability discrimination claims struck out. The tribunal found she was not disabled and her dismissal was fair.
2 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed from 3 September 2018 until dismissal on 28 June 2022 due to ill health capability.
- The claimant was absent from work for over a year, with multiple changing reasons for absence.
- Occupational Health reports indicated the claimant was fit to return with adjustments, but she declined a phased return.
- The claimant's disability claim was dismissed as she did not meet the definition of disability under s.6 Equality Act 2010.
- The unfair dismissal and breach of contract claims were struck out for having no reasonable prospect of success.
Timeline
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Employment started
Claimant began working as a Production Operative for Kettle Foods Ltd.
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Hospitalisation
Claimant taken to hospital by ambulance with chest pains, discharged same day.
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Sick note for chest pain
Claimant signed off work with chest pain.
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First capability hearing
Claimant attended first stage capability hearing; chest pains largely resolved; offered phased return but declined due to travel difficulties.
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Further capability meeting
Claimant referred to Occupational Health.
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Reconvened capability meeting
Claimant confirmed health improving, no mental health issues.
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Occupational Health review
Report stated claimant likely fit for role with adjustments; return arranged for 18 December 2021.
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Claimant did not return
Claimant submitted further sick notes citing stress for the first time.
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Further OH referral
Occupational Health confirmed no heart issues; claimant now suffering from stress and dizziness.
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Capability hearing
Claimant confirmed heart issues resolved but had Covid; main concern was travel anxiety.
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OH referral
Occupational Health reported main cause of absence was anxiety about leaving the house.
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Discharged from counselling
Claimant discharged from Wellbeing Counselling; anxiety scores reduced.
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Dismissal
Claimant dismissed due to ill health capability after over a year of absence.
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Preliminary hearing
Hearing to determine disability status and strike out application.
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Judgment issued
Employment Judge Postle dismissed disability claim and struck out unfair dismissal and breach of contract claims.
The legal issue
The tribunal had to decide whether the claimant was disabled under the Equality Act 2010, and whether her unfair dismissal and breach of contract claims had any reasonable prospect of success at a full hearing.
The outcome
The tribunal decided that the claimant was not disabled within the meaning of section 6 of the Equality Act 2010, so her disability discrimination claim was dismissed. Her unfair dismissal and breach of contract claims were struck out because they had no reasonable prospect of success.
The key reasons were:
- The claimant's health conditions (chest pain, anxiety) did not have a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.
- The employer had followed a proper capability process over 12 months, offering phased returns and occupational health support, which the claimant declined or did not engage with.
- The claimant's absence was lengthy and the reasons kept changing, making continued employment unsustainable.
No compensation was awarded as all claims were dismissed or struck out.
Lessons & takeaways
- To bring a disability discrimination claim, you must show you meet the legal definition of disability under the Equality Act 2010 – a condition that has a substantial and long-term adverse effect on normal daily activities.
- Employers can fairly dismiss for ill-health capability if they follow a proper process, including obtaining medical evidence, holding meetings, and considering adjustments – especially if the employee does not engage with return-to-work plans.
- If you are unable to attend a tribunal hearing due to health reasons, you must provide medical evidence to support your application for a remote hearing; otherwise the tribunal may proceed without you.
- Changing the stated reason for sickness absence multiple times can undermine your credibility and make it harder to argue that the employer acted unreasonably in dismissing you.
A year of absence, multiple reasons, and a final decision
This case shows how an employer can fairly dismiss an employee for ill-health capability after a long absence, even when the employee raises new health issues late in the process. The production operative had been off work for over a year, initially with chest pains, then Covid, then stress and anxiety. The employer, Kettle Foods Limited, held several capability meetings, referred her to occupational health, and offered a phased return with adjustments – but the claimant declined the return and did not engage with the support offered.
Why the tribunal struck out the claims
The tribunal found that the claimant was not disabled under the Equality Act 2010 because her conditions – unstable angina and anxiety – did not have a substantial and long-term adverse effect on her daily activities. The medical evidence showed her chest pains resolved quickly, and her anxiety, while real, did not meet the threshold for disability. Without disability status, her discrimination claim could not proceed.
Her unfair dismissal claim was struck out because the employer's decision to dismiss was within the range of reasonable responses. The employer had followed a proper capability process over 12 months, with multiple meetings, occupational health referrals, and offers of support. The claimant had declined a phased return and her absence reasons kept changing, making it reasonable for the employer to conclude that she was unlikely to return to work in the foreseeable future.
What this means for similar claims
This case is a reminder that employees who are long-term sick must engage with their employer's return-to-work plans and provide consistent medical evidence. Employers who follow a thorough capability process – including obtaining occupational health advice, holding meetings, and considering adjustments – are likely to be protected from unfair dismissal claims. It also highlights the importance of meeting the strict legal definition of disability to bring a discrimination claim; not every health condition will qualify, even if it causes significant absence from work.
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