Mrs D Daisy v Marks and Spencer plc — 2022

The Claimant's only claim was unfair dismissal. The Tribunal found that the Respondent dismissed her for capability, following a period of absence due to anxiety and depression, and that the dismissing and appeal officers genuinely believed she was no longer capable of work. The Tribunal also found that the Respondent had adequately consulted her through regular contact, five formal ill-health meetings, and occupational health referrals.

The Tribunal found the Respondent had investigated matters concerning the Claimant's personal safety at work, but had not shared the outcome of that investigation with her until the appeal outcome letter, after the internal process had closed. The Claimant had repeatedly identified fears about personal safety at work, including incidents involving an aggressive customer, a robbery, and a shoplifting incident, as causing or contributing to her absence.

The Tribunal concluded that the Respondent could reasonably have been expected to wait longer before dismissing the Claimant, engage with her about the investigation outcome, and explore what steps might address her safety concerns. Dismissal without that engagement was outside the range of reasonable responses, so the unfair dismissal claim was well-founded. The Tribunal assessed a 25% chance that the Claimant would have been dismissed in any event after a fair process and directed a corresponding Polkey reduction to any compensatory award.