Night care assistant dismissed for capability after unresolved payroll system errors: a fair dismissal but notice pay awarded
A night care assistant with 7 years' service was fairly dismissed for capability due to long-term sickness linked to unresolved grievances about payroll system errors. The tribunal awarded £153.62 for unpaid notice pay but rejected all other claims.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #night-care-assistant
- #ess-lite-ibc-system
- #grievance-procedure
- #occupational-health
- #protected-disclosure
- #disability-discrimination
Key facts
- The claimant was employed as a Night Care Assistant from 4 October 2012 until dismissal on 19 July 2019.
- She was on long-term sick leave from 1 August 2018 due to anxiety and depression.
- The respondent accepted she was disabled from 1 August 2018.
- The claimant raised multiple grievances about errors in the ESS Lite/IBC system recording her work pattern and sickness absence.
- The respondent dismissed her for capability due to high risk of future absence linked to unresolved grievances.
- The tribunal found the dismissal fair but awarded £153.62 for unpaid notice pay.
Timeline
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Employment started
Claimant began work as a Night Care Assistant at Solent Mead Care Home.
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First long-term sickness absence
Claimant went on sick leave due to anxiety and depression until February 2017.
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Stage one warning
Claimant received a formal warning for sickness absence; raised concerns about work pattern recording.
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Grievance and stage two warning
Claimant submitted a grievance about pay and records; a stage two warning was issued.
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Second long-term sickness absence
Claimant went on sick leave due to stress and anxiety, remaining off until dismissal.
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Second grievance
Claimant submitted a grievance alleging disability discrimination.
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Grievance meeting at 10pm
A grievance meeting was held at 10pm at the claimant's request; tribunal found timing reasonable.
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Final review meeting (part 1)
Meeting chaired by Mr Cameron; claimant agreed work pattern corrections but remained hostile.
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Dismissal
Claimant was dismissed for capability due to high risk of future absence.
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Appeal dismissed
Appeal heard by Mrs Ashton and dismissed.
The legal issue
The tribunal had to decide whether the dismissal for capability was fair, and whether the employee suffered disability discrimination, victimisation, or detriment for making protected disclosures about payroll system errors.
The outcome
The tribunal upheld the dismissal as fair but awarded the employee £153.62 for unpaid notice pay.
- The employer had a genuine belief, based on occupational health advice and the employee's own statements, that she would remain absent for the foreseeable future due to unresolved grievances about the ESS Lite/IBC system.
- The dismissal was within the range of reasonable responses, as the employer had followed its capability procedure and offered adjustments, but the employee refused to return until the system errors were corrected.
- However, the employer failed to pay the correct notice pay, resulting in a small award.
Lessons & takeaways
- Employers should ensure that payroll and absence recording systems are accurate and that employee grievances about them are properly investigated before relying on absence records in capability proceedings.
- An employee's refusal to return to work due to unresolved grievances may be seen as a legitimate concern, but if the employer has taken reasonable steps, a capability dismissal can still be fair.
- Even if a dismissal is fair, employers must still pay the correct notice pay; failure to do so can lead to a claim for unpaid wages.
- Long-serving employees (7+ years) are entitled to a higher notice period, so employers should check contractual and statutory notice entitlements carefully.
- Tribunals will scrutinise whether an employer's belief in future absence is genuinely held and based on up-to-date evidence, not just historical data.
A dispute over payroll records leads to a capability dismissal
The claimant, a night care assistant with 7 years' service, went on long-term sick leave in August 2018 due to anxiety and depression. The root cause of her stress was a long-running dispute about errors in the employer's ESS Lite/IBC system, which recorded her work pattern and sickness absence. She raised multiple grievances, alleging that the system misrepresented her hours and absence, and refused to return to work until the issues were resolved.
What the employer did and what the tribunal decided
Hampshire County Council followed its capability procedure, obtaining occupational health advice that the claimant was unlikely to return in the foreseeable future. The employer concluded that the risk of further absence was high, given the claimant's stated position that she would not return until the system errors were corrected. The tribunal found that the dismissal was fair because the employer had a genuine belief in the risk of future absence, based on the evidence available, and had acted within the range of reasonable responses.
However, the tribunal noted that the employer had not paid the correct notice pay. The claimant was entitled to 7 weeks' notice under her contract, but the employer paid only 4 weeks. The tribunal awarded £153.62 for the shortfall.
What this case shows
This case illustrates that a capability dismissal can be fair even when the underlying cause of absence is a dispute about workplace systems, provided the employer has followed a proper process and has a genuine belief in the likelihood of continued absence. However, employers must not overlook basic contractual obligations such as notice pay. For employees, the case highlights the importance of engaging with the employer's process and providing medical evidence, as a refusal to return to work can be used to justify dismissal.
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