In person For the v Respondent — 2020

The claimant, a Work Coach, was dismissed by the Department for Work and Pensions for unsatisfactory attendance arising from persistent short-term sickness absence. The tribunal accepted that the dismissal was for a potentially fair reason, namely some other substantial reason within section 98(1)(b) of the Employment Rights Act 1996, and applied the section 98(4) fairness test and the band of reasonable responses approach. It also noted the respondent's attendance management procedure, the ACAS Code of Practice, and the intermittent absence authorities cited, including Garner, International Sports Co Ltd v Thomson and Lynock v Cereal Packaging Ltd.

On the facts, the claimant had a high level of absence and had received warnings and support under the attendance procedure. However, the tribunal found that the decision-maker took a formulaic approach and did not properly appreciate all relevant circumstances. The papers before him gave an inaccurate picture of the claimant's engagement with occupational health, including that he had not completed or withdrawn from appointments for reasons the tribunal regarded as more nuanced than the respondent's summaries suggested. The tribunal also found that the decision-maker did not properly understand the position on the claimant's outstanding grievances, which were potentially relevant to the reasons for absence.

The tribunal also relied on the claimant's changing line management, the impact of his mental health issues, the inaccurate presentation of the 18 September home visit, and the fact that he had asked for more time after his 21 September email. Balancing those matters against the claimant's attendance record, missed meeting, and failure to appeal warnings, the tribunal concluded that dismissal was outside the band of reasonable responses and therefore unfair. A remedy hearing was ordered, and the tribunal noted that the claimant had sought compensation only, with issues of loss, contribution and mitigation left for the remedy hearing.