NHS employee dismissed after two years' sick leave: capability decision upheld
An NHS trust fairly dismissed a theatre nurse with 10 years' service after she was absent for over two years due to stress. The tribunal found the employer acted reasonably in concluding she would not return to her role.
2 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #occupational-health
- #ill-health-retirement
- #rotation-of-duties
- #stress-at-work
- #delays-in-process
Key facts
- The claimant was employed from February 2009 until dismissal on 28 January 2019.
- The claimant's sickness absence began in November 2016 after a meeting about a new rota.
- The respondent obtained multiple occupational health reports and proposed adjustments.
- The claimant requested ill-health retirement and did not indicate she was fit to return to her previous role.
- The dismissal was for capability due to long-term sickness absence.
- The tribunal found the respondent acted reasonably and within the range of reasonable responses.
Timeline
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Meeting about rota rotation
The claimant met with Mr Lawless regarding a new rotation of staff between obstetrics and paediatrics. The claimant expressed dissatisfaction and accused Mr Lawless of bullying.
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Sickness absence begins
After the meeting, the claimant attended A&E and was signed off sick with stress. She did not return to work.
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First occupational health assessment
The claimant attended an OH assessment. The assessor noted the claimant wanted to work only in her original role and anticipated a return if reassured.
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Second occupational health assessment
The claimant attended a further OH assessment.
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Grievance raised
The claimant raised a grievance against Mr Lawless.
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Third occupational health assessment
The claimant attended a third OH assessment.
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Hospital admission
The claimant was admitted to hospital for four weeks, undergoing several operations.
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Occupational health assessment
The claimant attended an OH assessment and indicated redeployment was not an option.
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Stage 3 sickness absence meeting
The claimant attended a final sickness review meeting with Mr Walsh. She requested ill-health retirement.
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Dismissal decision
The claimant was notified of her dismissal on grounds of capability, with effective date of termination 28 January 2019.
The legal issue
The tribunal had to decide whether the employer's decision to dismiss for capability (long-term sickness) was both substantively and procedurally fair under section 98 of the Employment Rights Act 1996.
The outcome
The tribunal dismissed the claim of unfair dismissal. It held that the trust had a potentially fair reason for dismissal (capability) and acted reasonably in all the circumstances.
Key reasons:
- The employee had been absent for over two years with no prospect of returning to her original role.
- The trust obtained multiple occupational health reports and considered adjustments, but the employee consistently indicated she could only return to her original role, which was no longer available.
- The employee had requested ill-health retirement, which the trust was progressing.
- The delay in the dismissal process was partly due to the employee's own requests and hospital admissions.
No compensation was awarded as the claim failed.
Lessons & takeaways
- Length of absence is a critical factor: after two years off, employers may fairly conclude there is no realistic prospect of return.
- Consistently stating you can only return to your original role (and not considering alternatives) can weaken a claim that the employer failed to make reasonable adjustments.
- Requesting ill-health retirement can be seen as acknowledging you are not fit to return to work, which may support a capability dismissal.
- Employers who obtain regular occupational health advice and follow their sickness absence procedure are likely to be within the range of reasonable responses.
- Delays in the dismissal process caused by the employee's own circumstances (e.g., hospitalisation) do not automatically make a dismissal unfair.
When long-term sickness leads to dismissal: a case that shows the employer's perspective
This case involved an NHS employee with 10 years' service who was dismissed after being off sick for over two years. The employee had stopped work following a difficult meeting about a rota change and never returned. The trust obtained several occupational health reports, offered adjustments, and held formal sickness meetings. But the employee consistently said she could only return to her original role — a role that was no longer available.
The tribunal's decision to uphold the dismissal highlights how the law balances the interests of employees and employers in long-term sickness cases. The key question was not whether the employee was still unwell, but whether the employer acted reasonably in concluding that she was unlikely to return to her job in the foreseeable future.
What the employer did right
Barts Health NHS Trust followed a structured sickness absence procedure, obtained up-to-date medical advice, and considered adjustments. The employee had also requested ill-health retirement, which the tribunal saw as an indication that she did not expect to return to her previous role. The trust's decision to dismiss was not rushed — it took over a year from the first formal meeting to the dismissal date, partly due to the employee's own hospital admissions.
The tribunal noted that the trust could have done some things differently, such as obtaining a more recent occupational health report before the final decision. However, the overall process was found to be within the range of reasonable responses. This means that even if another employer might have waited longer or sought further evidence, the trust's approach was not so flawed as to make the dismissal unfair.
What this means for similar claims
For employees, this case is a reminder that long-term sickness absence does not automatically protect you from dismissal. If you are unable to return to your role and have not engaged with alternative options, an employer may fairly conclude that the employment relationship cannot continue. For employers, the case confirms that following a proper procedure, obtaining medical advice, and considering adjustments will usually satisfy the test of reasonableness — even if the process takes time and the outcome is dismissal.
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