Warehouse operative dismissed after 480 days' sickness: capability decision upheld
A warehouse operative with 4.5 years' service was fairly dismissed after lengthy sickness absence. The tribunal rejected claims of discrimination and victimisation.
2 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed as a warehouse operative from December 2014 until 30 May 2019.
- The claimant was absent for 480 working days between August 2016 and May 2019 due to various health issues.
- The respondent dismissed the claimant on grounds of capability due to ill health after a series of meetings and an occupational health referral.
- The claimant's previous employment tribunal claim (3328523/2017) was struck out for non-compliance with an Unless Order.
- The respondent conceded the claimant had a disability (stress and depression) and had knowledge of it.
- The claimant was underpaid wages due to payroll errors, but all outstanding amounts were paid by 24 May 2019.
Timeline
-
Employment started
Claimant began working as a warehouse operative for Asda Stores Limited.
-
First sickness absence
Claimant signed unfit for work by GP due to work-related stress.
-
Original tribunal claim presented
Claimant presented a complaint to the Employment Tribunal (case 3328523/2017) alleging harassment and discrimination.
-
Unless Order made
Employment Judge Byrne made an Unless Order requiring the claimant to provide text messages by 16 January 2019.
-
Original claim dismissed
The original claim was dismissed for failure to comply with the Unless Order.
-
Dismissal
Claimant dismissed on grounds of capability due to ill health after a capability review meeting.
-
Appeal hearing
Appeal heard by Mr Baxter, General Manager; appeal not upheld.
-
Current claim presented
Claimant issued new claim form after early conciliation.
-
Preliminary hearing
Employment Judge Ord struck out several claims as res judicata or abuse of process.
-
Final hearing
Substantive hearing before Employment Judge Postle and members over four days.
The legal issue
The tribunal had to decide whether the claimant was unfairly dismissed on capability grounds due to ill health, and whether he suffered unlawful deduction of wages, direct sexual orientation discrimination, victimisation, failure to make reasonable adjustments, and direct disability discrimination.
The outcome
The tribunal dismissed all claims. The claimant had been absent for 480 working days over nearly three years due to various health issues, including stress and depression. Asda followed a capability process with meetings and an occupational health referral before deciding to dismiss.
Key reasons:
- The dismissal was fair because the claimant's long-term absence made it impossible for him to perform his role, and Asda acted reasonably in relying on the available medical evidence.
- The discrimination and victimisation claims were struck out as they had already been decided in a previous claim (res judicata) or were an abuse of process.
- The unlawful deduction of wages claim failed because all underpayments had been corrected before the claim was presented.
No compensation was awarded.
Lessons & takeaways
- Long-term sickness absence can justify dismissal on capability grounds if the employer follows a fair process and obtains appropriate medical advice.
- Claims that have already been litigated cannot be re-raised in a new tribunal claim – this is known as res judicata or cause of action estoppel.
- If an employer corrects a wage underpayment before a tribunal claim is issued, the claim for unlawful deduction of wages will likely fail.
- An Unless Order requiring disclosure of documents must be complied with strictly; failure to do so can result in the claim being struck out.
When long-term sickness leads to dismissal
This case shows that even a long-serving employee can be fairly dismissed on capability grounds if their ill health prevents them from doing their job. The claimant, a warehouse operative with 4.5 years' service, was absent for 480 working days between August 2016 and May 2019. Asda held capability meetings and obtained an occupational health report before deciding to dismiss. The tribunal found that the decision was within the range of reasonable responses for a reasonable employer.
What the employer did right
Asda followed a structured process: they referred the claimant to occupational health, held formal capability meetings, and gave him the opportunity to appeal. The tribunal noted that the employer had knowledge of the claimant's disability (stress and depression) but still acted reasonably in dismissing on capability grounds, given the length of absence and lack of prospect of a return to work in the near future.
Why the discrimination claims failed
The claimant tried to bring claims of sexual orientation discrimination and victimisation that were based on incidents from 2016 – the same allegations he had made in an earlier tribunal claim (case 3328523/2017). That earlier claim was struck out for failing to comply with an Unless Order. The tribunal ruled that the new claims were an abuse of process because they should have been raised in the earlier proceedings. This is a reminder that claimants cannot re-litigate old grievances in a new claim.
The wage claim also failed
The claimant alleged he had been underpaid due to payroll errors. However, Asda had corrected all underpayments by 24 May 2019, before the tribunal claim was presented. The tribunal therefore found no unlawful deduction of wages at the time the claim was made.
Key takeaway for employees
If you are off sick for a long period, your employer may be able to dismiss you fairly if they follow a proper process and obtain medical evidence. However, if you believe your dismissal is linked to a protected characteristic (like disability), you should raise that at the time and ensure any discrimination claim is brought within the three-month time limit. Re-using old allegations will likely be struck out.
Similar cases
Security officer dismissed after back injury: tribunal finds unfair dismissal and disability discrimination
A security officer with six years' service was unfairly dismissed after a back injury. The tribunal also found that CIS Security Ltd failed to make reasonable adjustments and discriminated against him arising from his disability.
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.
Accountant dismissed after 15 months' sick leave: tribunal rejects discrimination and whistleblowing claims
An accountant with 15 years' service was fairly dismissed for incapability after 15 months' sick leave. The tribunal rejected her claims of disability discrimination, victimisation, and whistleblowing.
Practice nurse dismissed for gross misconduct: flawed process but dismissal inevitable
A practice nurse with 46 years' experience was unfairly dismissed due to a flawed disciplinary process, but the tribunal found she would have been dismissed anyway and reduced her compensation by 60% for her own conduct. She was awarded £1,610.66.