17-year employee dismissed for long-term back pain: tribunal upholds council's capability decision
A tribunal has ruled that London Borough of Hillingdon fairly dismissed a Restorative Justice Officer with 17 years' service after a year-long absence due to back pain, rejecting claims of unfair dismissal and disability discrimination.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #occupational-health
- #back-pain
- #redeployment
- #sick-pay-scheme
- #range-of-reasonable-responses
Key facts
- The claimant was employed as a Restorative Justice Officer from 2 June 2003 until 22 June 2020.
- He was absent from work due to back pain from 12 August 2019 until his dismissal.
- The respondent obtained occupational health reports in November 2019, February 2020, and July 2020.
- The claimant was dismissed on grounds of capability on 31 March 2020, effective 22 June 2020.
- The appeal against dismissal was heard by Mrs Kelly and dismissed on 27 July 2020.
- The tribunal found the dismissal was not unfair and was proportionate means of achieving a legitimate aim.
Timeline
-
Claimant's sickness absence begins
Claimant reported unable to work due to back pain; absence continued until dismissal.
-
First long-term absence review meeting
Ms Ellis held a telephone review meeting with the claimant.
-
Second long-term absence review meeting
Ms Ellis held a further telephone review; a 4-week review period was set.
-
Occupational health report (Mr Wilson)
Report stated claimant was unfit for work due to a prolapsed disc, awaiting consultant review.
-
Absence capability hearing (Ms Hawes)
Hearing set an 8-week review period to allow completion of physiotherapy.
-
Second long-term capability hearing (Ms Wyatt)
Ms Wyatt discussed adjustments and redeployment; referred claimant for further occupational health.
-
Occupational health report (Dr Sperber)
Report stated claimant remained unfit but expected recovery within 6 weeks; no long-term adjustments needed.
-
Decision to dismiss
Ms Wyatt decided to dismiss the claimant on grounds of incapability due to ongoing absence and service impact.
-
First appeal hearing (Mrs Kelly)
Appeal hearing adjourned as claimant raised new information about work-related injury and asthma.
-
Second appeal hearing
Hearing adjourned for further occupational health assessment and GP report.
-
Occupational health report (Ms Willis)
Report stated claimant fit to resume work in 2 weeks if suitable role with home working could be provided.
-
Appeal dismissed
Mrs Kelly dismissed the appeal, upholding the decision to dismiss.
The legal issue
The tribunal had to decide whether the claimant's dismissal for capability by reason of ill-health was unfair and whether it amounted to disability discrimination under section 15 of the Equality Act 2010.
The outcome
The tribunal unanimously dismissed the claimant's claims of unfair dismissal and disability discrimination.
The key reasons were:
- The respondent had obtained three occupational health reports over the course of the absence and held multiple review meetings.
- The decision to dismiss was within the range of reasonable responses for a reasonable employer, given the length of absence and the impact on service delivery.
- The dismissal was a proportionate means of achieving a legitimate aim (managing the service), and the respondent had considered redeployment and adjustments.
No compensation was awarded as the claims failed.
Lessons & takeaways
- Employers should obtain regular occupational health reports and hold review meetings during long-term sickness to demonstrate a fair process.
- A dismissal for capability may be fair even if the employee has long service, provided the employer has considered alternatives like redeployment.
- Disability discrimination claims based on dismissal may fail if the employer can show the dismissal was a proportionate means of achieving a legitimate aim.
- Employees should engage with occupational health and provide updated medical evidence to support their return to work.
What this case shows in practice
A Restorative Justice Officer with 17 years of service was dismissed after a year-long absence due to back pain. The tribunal found that the London Borough of Hillingdon had followed a reasonable process, obtaining three occupational health reports and holding multiple review meetings. The decision to dismiss was based on the ongoing absence and its impact on the service, not on a predetermined outcome.
What the employer did right
The council had a clear sickness management procedure. It held regular review meetings, considered adjustments and redeployment, and sought occupational health advice at key points. The appeal process also allowed for further medical evidence, including a report that suggested the claimant could return to work with home working. Despite this, the appeal was dismissed, and the tribunal upheld that decision as within the range of reasonable responses.
Why this matters for similar claims
This case shows that long service does not automatically make a capability dismissal unfair. The key is whether the employer acted reasonably in the circumstances, considering the medical evidence, the employee's views, and the business needs. Employees in similar situations should ensure they provide up-to-date medical evidence and engage with the process, as failure to do so may weaken their claim.
Similar cases
Customer service assistant dismissed on medical grounds without recommended risk assessment
A tribunal has upheld the dismissal of a London Underground customer service assistant with 13 years' service, finding that the employer acted reasonably despite not carrying out a recommended risk assessment before termination.
Dismissed after 12 years due to long-term sickness: employer's redeployment efforts upheld
A Food Technology Technician with 12 years' service was fairly dismissed for capability after a long-term sickness absence, the tribunal ruled, finding the employer had properly considered redeployment and made reasonable adjustments.
NHS healthcare assistant dismissed after 20-month sick leave: disability discrimination claim fails
A healthcare assistant with 7 years' service was dismissed after 20 months' sick leave due to a work-related arm and neck injury. The tribunal found the NHS trust's decision was proportionate, balancing patient safety and staffing needs.
Dismissed after refusing redeployment: a capability decision that passed the fairness test
A Housing Solutions Assistant with PTSD was fairly dismissed after a lengthy sickness absence when he refused all redeployment options, the tribunal has ruled.