In person For the v Respondent — 2023

Ms S Budathoki worked for Lexington Catering Ltd from 10 June 2010 and TUPE transferred to the respondent on 6 January 2020. She was dismissed on 5 August 2022 after a review process focused on her long-term kidney failure, dialysis, and inability to return to the on-site Finance Assistant role on any known timetable. The tribunal found that the respondent had consulted her over many months, obtained two Occupational Health reports, discussed her duties in detail, and looked at group vacancies and possible adjustments before reaching the dismissal decision.

The unfair dismissal claim was dismissed. The tribunal held that the reason for dismissal was capability arising from long-term ill-health, that the respondent genuinely and reasonably believed the claimant could not sustain the role as it had to be carried out predominantly on site, and that the decision fell within the band of reasonable responses. It placed weight on the absence of any reliable timescale for a kidney transplant, the extent to which the claimant needed assistance from colleagues to complete parts of the role, and the fact that the respondent had carried out welfare meetings, Occupational Health referrals, and an appeal process before confirming dismissal.

The unlawful deduction claim in respect of sick pay was also dismissed. The tribunal found that the claimant was contractually entitled to 10 days of company sick pay and that, for the relevant absences in December 2020 and January 2021, the respondent had paid the correct amounts of statutory and contractual sick pay even though the payslips were confusing. The tribunal noted the respondent’s calculation of the daily rates and accepted that the claimant had received the payments due.

The holiday pay issue was dismissed in part because 11 days of rolled-over 2021 holiday pay were paid just before the hearing, and in part because the remaining claim failed on the merits. The tribunal held that holiday only accrued while the contract of employment subsisted, that the contract ended on 5 August 2022, and that the claimant was not entitled to further holiday pay from 5 August 2022 to 31 October 2022. No tribunal award was made.