Dismissed after months of sickness absence: capability decision upheld by tribunal
A store manager with 15 years' service was dismissed for inability to sustain reliable attendance due to depression. The tribunal found the dismissal fair and not discriminatory, despite his disability.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #depression
- #occupational-health
- #phased-return
- #attendance-record
- #justification
- #talking-therapy-declined
Key facts
- The claimant was employed as a store manager from April 2005 until dismissal in January 2020.
- The claimant suffered from depression and was a disabled person under the Equality Act.
- The claimant's attendance in 2019 was 8% due to depression-related absences.
- The claimant declined talking therapies despite medical advice.
- The respondent dismissed the claimant for inability to sustain reliable attendance.
- The appeal was delayed partly due to the claimant's failure to provide grounds and the pandemic.
Timeline
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Employment started
The claimant began working for Superdrug Stores plc.
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Absence due to depression
The claimant was absent from work from 12 January to 20 May 2019 due to depression.
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Occupational health report
Dr Mishir reported that the claimant was fit to return to work with a phased return.
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Return-to-work interview
The claimant attended a return-to-work interview and began a phased return.
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Further absence
The claimant began another period of absence around 10 or 12 June.
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GP report
Dr Whitfield's report recommended a phased return and reiterated the importance of talking therapies.
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Second phased return agreed
A return-to-work meeting agreed a second phased return starting 4 November.
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Informal verbal warning for lateness
Ms Fleming issued an informal verbal warning for persistent lateness.
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Disciplinary meeting for lateness
The claimant did not attend; Mr Vass decided to issue a first written warning, but no outcome letter was sent.
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Capability meeting and dismissal
The claimant attended a capability meeting with Mr Vass and was dismissed for inability to sustain reliable attendance.
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Appeal hearing
The appeal was heard by Mr McMullan, who upheld the dismissal.
The legal issue
The tribunal had to decide whether the dismissal was unfair and whether it amounted to disability discrimination under section 15 of the Equality Act 2010.
The outcome
The tribunal dismissed the claims of unfair dismissal and disability discrimination. It found that the respondent acted reasonably in dismissing the claimant for capability reasons, given his very low attendance record and his failure to engage with recommended treatment.
- The claimant's attendance in 2019 was only 8% due to depression-related absences.
- The respondent followed a capability procedure, obtained medical reports, and offered phased returns.
- The claimant declined talking therapy despite medical advice.
- The appeal was delayed partly due to the claimant's own failure to provide grounds and the pandemic.
- The only award was £375 for unpaid expenses, agreed by consent.
Lessons & takeaways
- Employers can fairly dismiss for capability if attendance is very low and the employee has not engaged with recommended treatment.
- Declining recommended medical treatment, such as talking therapy, can weaken a claim that the employer failed to make reasonable adjustments.
- Long service does not automatically make a dismissal unfair if the employer has followed a proper process and the employee's attendance is unsustainable.
- Disability discrimination claims under section 15 require showing that the dismissal was because of something arising from the disability; the employer can justify it if the response is proportionate.
This case shows that even long-serving employees can be fairly dismissed for capability reasons when their attendance record is extremely poor and they have not followed medical advice. The store manager had 15 years of service but was absent for most of 2019 due to depression. Superdrug obtained occupational health reports, offered phased returns, and recommended talking therapy, which the claimant declined.
What the employer did right
Superdrug followed a structured capability procedure. They obtained medical evidence, held meetings, and allowed phased returns. The tribunal noted that the claimant's refusal of talking therapy was a significant factor — it meant that the employer's options were limited. The dismissal was for 'some other substantial reason' (SOSR) — inability to sustain reliable attendance — which the tribunal accepted as a potentially fair reason.
What the claimant could have done differently
Engaging with the recommended talking therapy might have improved his health and attendance, and would have strengthened his position in any claim. The tribunal also noted that the claimant's own delays in providing appeal grounds contributed to the appeal taking longer, which undermined his criticism of the process.
Why this matters
For employees with long-term health conditions, this case highlights the importance of cooperating with medical advice and treatment. For employers, it confirms that a fair process — including obtaining up-to-date medical evidence and considering adjustments — can justify dismissal even where the employee is disabled. The key is to show that the employer acted reasonably in all the circumstances.
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