Dismissed after 3.5 years of sickness absence: a fair capability decision
An employment tribunal has ruled that B & M Retail Limited fairly dismissed a customer service assistant who had been absent for over three years due to muscular dystrophy. The tribunal rejected claims of unfair dismissal and disability discrimination.
2 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #facioscapulohumeral-muscular-dystrophy
- #occupational-health
- #capability-dismissal
- #disability-discrimination
Key facts
- The claimant was employed as a Customer Service Assistant from 19 August 2015 until 27 April 2021.
- She began a period of sickness absence on 26 November 2017 and never returned to work.
- She was diagnosed with Facioscapulohumeral Muscular Dystrophy (FMD) in January 2018.
- The respondent held welfare calls from January 2020 and two capability meetings in February and April 2021.
- An Occupational Health report in April 2021 stated no return to work in foreseeable future.
- The claimant was dismissed on 27 April 2021 on grounds of medical capability.
Timeline
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Employment started
Claimant began working as a Customer Service Assistant at B&M Retail Ltd's Netherfield store.
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Sickness absence began
Claimant started a period of long-term sickness absence due to shoulder pain, later diagnosed as FMD.
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Diagnosis of FMD
Claimant was diagnosed with Facioscapulohumeral Muscular Dystrophy, a degenerative condition.
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First welfare call
Respondent made first welfare call after over two years of no contact.
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First capability meeting
Meeting to discuss absence; claimant said she could not return for at least 6 months.
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Occupational Health referral
Telephone consultation with OH; report stated no return in foreseeable future.
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Second capability meeting
Claimant could not give return date; managers concluded she did not intend to return.
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Dismissal
Claimant was dismissed on grounds of medical capability; letter sent on day of her eye surgery.
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Appeal hearing
Appeal heard by Thomas Lax; claimant stated she could not return to work.
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Judgment
Tribunal found dismissal fair; all claims dismissed.
The legal issue
The tribunal had to decide whether the claimant was unfairly dismissed on capability grounds, and whether her dismissal amounted to direct disability discrimination or discrimination arising from disability.
The outcome
The tribunal unanimously decided that the claimant was fairly dismissed by B & M Retail Limited. All claims for unfair dismissal, direct disability discrimination, and discrimination arising from disability were dismissed.
The key reasons were:
- The claimant had been absent for over three years with no prospect of returning to work in the foreseeable future.
- The employer conducted welfare calls and two capability meetings, and obtained an occupational health report.
- The dismissal was within the range of reasonable responses for a capability dismissal.
- There was no evidence that the employer's decision was tainted by disability discrimination.
No compensation was awarded as the claims were dismissed.
Lessons & takeaways
- Length of absence is a critical factor: after years of sickness absence with no return date, a capability dismissal is likely to be fair.
- Employers should conduct regular welfare checks and capability meetings, and obtain up-to-date medical evidence before dismissing.
- A claimant who cannot provide a return date at the time of dismissal weakens their unfair dismissal claim.
- Disability discrimination claims require evidence that the employer's decision was influenced by the disability, not just the fact of absence.
- Representing yourself in a complex discrimination case can be challenging; legal advice is often beneficial.
A long absence with no end in sight
This case illustrates how employment tribunals approach capability dismissals when an employee has been on long-term sick leave for an extended period. The claimant, a customer service assistant, began her absence in November 2017 and never returned to work. By the time of her dismissal in April 2021, she had been absent for over three years. Her condition, Facioscapulohumeral Muscular Dystrophy, was degenerative and meant she could not perform her role.
What the employer did right
B & M Retail Limited did not rush into dismissal. After a gap in contact, the employer initiated welfare calls from January 2020 and held two formal capability meetings in February and April 2021. They also referred the claimant to occupational health, which produced a report stating she could not return in the foreseeable future. The tribunal noted that the employer considered alternatives but concluded there was no suitable role. The dismissal letter was sent on the day of the claimant's eye surgery, but the tribunal found this did not make the decision unfair.
Why the discrimination claims failed
The claimant argued that her dismissal was discriminatory because it was linked to her disability. However, the tribunal found no evidence that the employer's decision was motivated by her disability itself. The dismissal was based on capability – her inability to attend work – which is a separate ground. The tribunal also noted that the employer had made reasonable adjustments, such as providing a chair, and had not treated her unfavourably because of something arising from her disability. The key point was that the employer's process was fair and the decision was within the range of reasonable responses.
What this means for similar cases
For employees on long-term sick leave, this case reinforces that employers can fairly dismiss on capability grounds if there is no realistic prospect of a return. The burden is on the employee to provide a return date or engage with the process. For employers, the lesson is to follow a structured process: regular contact, formal meetings, up-to-date medical evidence, and consideration of alternatives. Even a long-serving employee can be fairly dismissed if the absence is prolonged and the employer acts reasonably.
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