Production operative dismissed after nine months' sick leave: employer acted fairly

A fair process for a difficult decision

This case shows that employers can fairly dismiss an employee who is long-term sick, provided they follow a thorough process. The claimant, a production operative, had been off work for nine months with foot pain. Her employer, Faccenda Foods Limited, obtained five separate occupational health reports, all of which stated she was unfit for work and gave no clear return date. The employer also held a medical capability hearing before deciding to dismiss.

The tribunal noted that the employer had genuine concerns about the claimant's ability to return to work and had waited a reasonable time. The claimant had not provided any medical evidence suggesting she would be fit soon. The employer's decision was within the range of reasonable responses.

What the employer did right

Faccenda Foods did not rush to dismiss. It kept in touch with the claimant, obtained regular medical updates, and considered alternative roles. The tribunal highlighted that the employer had a genuine belief in the claimant's incapacity, based on the medical evidence. The dismissal was for capability, not because of the disability itself, and the employer had a legitimate business need to fill the role.

Why the discrimination claims failed

The claimant also argued that her dismissal was discrimination arising from disability and that the employer failed to make reasonable adjustments. However, the tribunal found that the dismissal was a proportionate means of achieving a legitimate aim – the efficient operation of the business. The employer had considered adjustments but none were identified that would have enabled the claimant to return to work. The claim for failure to make reasonable adjustments also failed because the claimant had not requested any specific adjustments while off sick.

Key takeaways for similar cases

This case reinforces that employers who follow a fair process and rely on up-to-date medical evidence can defend capability dismissals. For employees, it highlights the importance of engaging with the employer and providing medical evidence that shows a realistic return date. Without that, a dismissal may be fair even if the employee has a disability.