Mr Hugh Jones Respondents Graig Shipping PLC v Mr R Barker — 2017

The tribunal found that Mr Hugh Jones had been employed by Graig Shipping plc as company accountant, later Group Accountant, from 19 October 2006, and that he had been absent from work from September 2009 because of knee and hip problems. The employer kept his employment open while he pursued income protection benefit under the Aviva policy, and the tribunal accepted that this arrangement meant he was not in practice performing work for the respondent for around six years.

By early 2016 the claimant said he intended to return to work after hip surgery, but the decision-maker, Mr Chris Davies, was concerned that he had not maintained continuing professional development, had not kept up with changes in the business or financial practice, and would be unable to resume the senior accounting role after such a long absence. The tribunal accepted that there was no current vacancy for him and that the accounting team had changed in the meantime. It also accepted that the respondent was not required to create a new role for him or to dismiss the person already performing the job.

The claimant appealed, arguing among other things that his employment had only been kept open notionally and that he should be allowed to return. The appeal was heard by Mr Phillip Atkinson, whom the tribunal accepted was sufficiently independent to hear the appeal. Applying section 98(2) and section 98(4) of the Employment Rights Act 1996, the tribunal held that the dismissal was for some other substantial reason and fell within the range of reasonable responses. The unfair dismissal claim was therefore dismissed. The tribunal did not make findings on the claimant's separate allegation of collusion with Aviva, and the earlier notice pay and holiday pay issues had already been resolved by payment before the hearing.