Personal support worker dismissed after 18 months' sick leave: capability dismissal upheld
A personal support worker who was dismissed after 18 months' absence due to bowel cancer and a hernia has lost her unfair dismissal claim. The tribunal found the dismissal was fair, and even if the procedure had been flawed, she would have been dismissed anyway.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #disability-discrimination
- #capability-dismissal
- #polkey-deduction
- #small-employer
- #social-services-pressure
Key facts
- The claimant was employed as a personal support worker from 23 November 2018 until her dismissal on 9 December 2021.
- The claimant was absent from work due to ill health from 1 June 2020, having had surgery for bowel cancer and developing a post-stoma hernia.
- The respondent, who is disabled and of limited means, dismissed the claimant on grounds of capability after 18 months' absence.
- The claimant refused to provide consent for a medical report from her consultant, despite requests from the respondent.
- The Tribunal found the dismissal was substantively fair and, by majority, procedurally fair.
- The Tribunal unanimously held that had a fair procedure been followed, the claimant would have been dismissed anyway (100% Polkey deduction).
Timeline
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Employment started
Claimant began working as a personal support worker for the respondent.
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Absence began
Claimant went off work due to ill health.
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Surgery
Claimant had major surgery to remove a cancerous tumour, resulting in a stoma bag.
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Attempted return failed
Claimant hoped to return to work in May 2021 but was unable due to a post-stoma hernia.
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Invitation to capability meeting
Respondent sent letter inviting claimant to a meeting to discuss her ongoing absence.
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Capability meeting
Meeting held by telephone; claimant stated she hoped to return in May 2022.
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Dismissal
Claimant was dismissed by letter on grounds of capability.
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Appeal invited
Respondent invited claimant to an appeal hearing.
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Appeal withdrawn
Claimant refused to deal with T&J and escalated to ACAS, effectively withdrawing her appeal.
The legal issue
The tribunal had to decide whether the claimant's dismissal for capability (long-term sickness) was fair under section 98(4) of the Employment Rights Act 1996, and whether it amounted to discrimination arising from disability under section 15 of the Equality Act 2010.
The outcome
The tribunal dismissed the claimant's unfair dismissal and discrimination claims.
- The dismissal was substantively fair: after 18 months' absence and no clear return date, the employer was entitled to dismiss on capability grounds.
- By a majority, the procedure was also fair: the employer invited the claimant to a meeting, considered her views, and offered an appeal.
- Even if the procedure had been unfair, the tribunal unanimously applied a 100% Polkey deduction, meaning the claimant would have been dismissed anyway.
- The discrimination claim failed because the dismissal was a proportionate means of achieving a legitimate aim (running the business).
Lessons & takeaways
- Long-term sickness dismissals can be fair if the employer has a genuine business need and has considered the employee's circumstances.
- Refusing to provide consent for a medical report can weaken an employee's case, as the employer may rely on available information.
- Even if a procedure is flawed, a tribunal may find that dismissal was inevitable, reducing compensation to zero.
- Small employers with limited resources may be given more leeway in capability procedures.
This case shows how a small employer can fairly dismiss an employee on long-term sick leave when there is no realistic prospect of a return to work in the near future. The claimant, a personal support worker, had been absent for 18 months following surgery for bowel cancer and a subsequent hernia. Despite hoping to return in May 2022, she had not provided a firm date or consent for a medical report from her consultant.
What the employer did right
The employer, Mr A Shakespeare, who is himself disabled and of limited means, conducted a capability meeting by telephone, considered the claimant's views, and invited her to an appeal. The tribunal noted that the employer had a legitimate business need to fill the role. The majority found the procedure fair, given the circumstances and the employer's resources.
What the claimant could have done differently
The claimant refused to consent to a medical report from her consultant, which meant the employer had to rely on fit notes and the claimant's own statements. Providing consent might have given the employer clearer evidence of her prognosis and could have influenced the outcome. Additionally, she withdrew her appeal, which limited her ability to challenge the decision.
Why the result matters
This case reinforces that capability dismissals can be fair even after long absences, especially when the employee cannot provide a definite return date. It also highlights that a 100% Polkey deduction can eliminate compensation entirely if the tribunal believes dismissal was inevitable. For employees, it underscores the importance of cooperating with the employer's requests for medical evidence and engaging with the process.
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