Mr MILTON MUSAU MUNYIRI v LONDON NORTH EASTERN RAILWAY LIMITED Heard : By video [CVP] — 2023

The claimant brought a single complaint of unfair dismissal arising from his dismissal for capability on 11 April 2023, following a long period of sickness absence. The tribunal accepted that the respondent had a potentially fair reason for dismissal under s.98 ERA 1996, namely capability arising from long-term sickness absence. It found that the claimant had been absent for a very significant period, aside from a limited period in March 2022 when he was using annual leave, and that the respondent was entitled to consider whether it could reasonably wait any longer for a return to work.

The tribunal found that the respondent had carried out repeated welfare contact, occupational health reviews, and consideration of a phased return or alternative location. It accepted that the claimant’s medical picture changed over time, including stress-related symptoms and, later, disclosure of alcohol and cocaine use. At the point Mr Davies decided to dismiss, however, the tribunal found that the medical picture was incomplete because the respondent had identified a need for further information from the claimant’s GP practice before making a final decision.

The tribunal held that it would have been procedurally fairer for Mr Davies to await that further medical information before finalising the dismissal decision, and that it was not good practice to leave that inquiry to the notice period. However, it concluded that this defect was cured on appeal: Mr Moeller had the GP information, which did not materially alter the position, and it was very unlikely that waiting for it would have led to a different outcome. Looking at the process as a whole, the tribunal found that the respondent had substantially followed its sickness absence procedure and acted fairly in dismissing the claimant.

The complaint of unfair dismissal was therefore dismissed. No remedy was awarded.