Mr R Blygen v Islington Borough Council — 2023

Mr R Blygen was employed as a caretaker from 16 October 2007 until his dismissal on 22 September 2022, when Islington Borough Council dismissed him on capability grounds after a long period of sickness absence. He had been continuously absent from 7 June 2021 due to stress at work, against a background of earlier absence and a grievance history beginning in 2018 and a formal grievance lodged on 10 October 2019. The tribunal accepted that work-related stress caused his absence, and that the grievance was delayed, but it did not accept the claimant's case that dismissal was really because he had complained or that there had been collusion.

Applying sections 98(1), (2) and 98(4) of the Employment Rights Act 1996, the tribunal found the reason for dismissal was capability due to long-term sickness and that this was potentially fair. It relied on the up-to-date Occupational Health material, including the report of 9 September 2022, which said he remained unfit for work and was unlikely to return in the foreseeable future. The tribunal accepted that the respondent had considered the effect of the absence on the service, the cost of cover, the available options, and the claimant's own position that he might not be able to return even if matters were addressed.

The tribunal accepted that there had been delay in the grievance process and that the investigation could have been more thorough, particularly on whether Occupational Health recommendations had been followed. It nevertheless found that the respondent gave the claimant information in advance, allowed him to be accompanied, offered an appeal, and followed a fair sickness absence management process overall. It concluded that dismissal fell within the range of reasonable responses and that it was not reasonable to expect the respondent to wait longer. The unfair dismissal claim was therefore dismissed.

On the holiday pay claim, the tribunal treated the claim as one for accrued but untaken annual leave under the Working Time Regulations 1998. It found the holiday year ran from 1 April to 31 March, the claimant's entitlement was 35 days, he had 20 days carried over from the 2021/22 leave year, and he had accrued a further 3.34 weeks between 1 April 2022 and termination. On that basis he was due 7.34 weeks of holiday pay at a weekly rate of £508.89, giving £3,734.47, from which the respondent's payments of £2,106.45 were deducted, leaving £1,628.02 payable. The tribunal ordered that sum to be paid subject to deductions for income tax and national insurance.