Dismissed during long-term sick leave: a capability decision that went too fast
A behaviour lead with 17 years' service was unfairly dismissed after her employer relied on outdated medical reports and failed to follow its own sickness procedure. The tribunal awarded £23,222, including £9,000 for injury to feelings.
2 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #occupational-health
- #stale-medical-report
- #acas-code-uplift
- #disability-discrimination
- #sickness-absence-procedure
Key facts
- Mrs Begg was employed as Behaviour Lead and Community Liaison from 2004 until her dismissal on 21 July 2021.
- She was absent due to ill-health from 6 November 2019 and did not return to work.
- The respondent obtained occupational health reports in March and December 2020 but did not obtain up-to-date medical evidence before dismissal.
- No formal sickness absence review meetings were held under the respondent's policy.
- The stage 3 meeting was arranged via the union representative without a formal invitation letter to Mrs Begg.
- Mrs Begg was dismissed for capability (sickness absence) and the tribunal found the dismissal unfair and discriminatory.
Timeline
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Employment start
Mrs Begg began continuous employment with the respondent, exact date uncertain but around 1 September or 1 October 2004.
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Sick leave begins
Mrs Begg was signed off work due to ill-health and never returned.
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First occupational health assessment
Occupational Health assessed Mrs Begg as psychologically fragile and unfit for work, recommending informal discussions only.
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Union requests meetings
Mrs Begg's union representative emailed Mr Tunstall requesting sickness meetings and an Occupational Health referral.
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Union repeats request
Union representative again emailed about lack of sickness meetings and need for Occupational Health referral.
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Second occupational health assessment
Occupational Health reported a 50:50 mix of work and personal issues, with recovery timeframe unclear and spanning many months.
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Email about stage 3 meeting
Mr Tunstall emailed Mrs Begg referring to stage 3 as 'final discussions about exit plans and monies'.
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Ill-health retirement application
Mrs Begg applied for ill-health retirement; it was rejected in May 2021.
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Dismissal
Mrs Begg was dismissed following a stage 3 sickness absence meeting, with reason being her sickness absence.
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Ill-health retirement mistakenly granted
Mrs Begg received a letter granting ill-health retirement, but this was later withdrawn as an error.
The legal issue
The tribunal had to decide whether Solihull Metropolitan Borough Council unfairly dismissed the employee on capability grounds (sickness absence) and whether the dismissal amounted to discrimination arising from disability under the Equality Act 2010.
The outcome
The tribunal decided that the dismissal was both unfair and discriminatory.
- The employer failed to obtain up-to-date medical evidence before dismissing, relying instead on a report from December 2020 when the dismissal took place in July 2021.
- No formal sickness absence review meetings were held under the employer's own policy, and the stage 3 meeting was arranged informally without a proper invitation.
- The employee was awarded:
- Basic award: £13,872
- Compensation for loss of statutory rights: £350
- Injury to feelings: £9,000
- Total: £23,222
Lessons & takeaways
- Employers should obtain up-to-date medical evidence before making a capability dismissal, especially when the employee has been absent for a long time.
- Following your own sickness absence procedure is essential — skipping stages or holding informal wellbeing meetings instead of formal reviews can make a dismissal unfair.
- Discrimination arising from disability can be found even if the employer did not intend to discriminate, if the reason for dismissal is something arising from the disability.
- If an employee offers an updated medical report, the employer should consider it rather than relying on stale reports.
A long-serving employee let down by process
This case shows what can happen when an employer rushes a capability dismissal without following its own procedures. The employee had worked for the council for 17 years as a Behaviour Lead and Community Liaison. After being signed off work in November 2019 due to ill-health, she never returned. The council obtained occupational health reports in March and December 2020, but by the time of her dismissal in July 2021, those reports were stale — and the council did not seek an update.
What the employer did wrong
The council's sickness absence policy set out a three-stage process, but no formal stage 1 or 2 meetings were held. The employee's manager visited her at home, but these were wellbeing visits, not formal reviews. The stage 3 meeting was arranged informally via the union representative, without a proper invitation letter. The manager admitted in evidence that he did not discuss the occupational health reports with the employee and based his view on 'inferences and deduction'. When the employee applied for ill-health retirement, the council initially granted it by mistake, then withdrew it — adding to the confusion.
Why the result matters
The tribunal found that the dismissal was both unfair and discriminatory. The unfairness came from the lack of up-to-date medical evidence and the failure to follow the proper procedure. The discrimination finding (under section 15 of the Equality Act) was because the reason for dismissal — long-term sickness — arose from the employee's disability. The tribunal rejected the council's argument that it could have justified the discrimination, noting that the flawed process meant the decision was not a proportionate means of achieving a legitimate aim.
The total award of £23,222 included £9,000 for injury to feelings, reflecting the distress caused by the dismissal. The basic award was reduced to nil under the Polkey principle because the tribunal found the employee would have been dismissed anyway within a few months, but the injury to feelings award was not reduced. This case is a reminder that even when an employee is unlikely to return to work, the employer must still follow a fair process and consider up-to-date medical evidence.
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