Charmaine Angela Cunningham v Asda Stores Limited — 2024

The claimant was dismissed on capability grounds after a period of long-term sickness absence. The tribunal treated the claim as one of unfair dismissal under section 98 of the Employment Rights Act 1996, with the agreed issues focused on whether capability was the reason for dismissal, whether the respondent acted reasonably, and whether a fair procedure was followed.

The tribunal refused the claimant's application to rely on a covert recording relating to earlier grievance matters because it did not consider that evidence relevant to the capability dismissal issues. It found that the respondent had considered occupational health material, sickness absence, meetings, possible adjustments and alternative locations, and the claimant's position about returning to work.

The tribunal concluded that it was reasonable for the respondent to decide there was no realistic prospect of the claimant returning to work and that dismissal was within the band of reasonable responses. The unfair dismissal complaint was therefore dismissed.