Mr A Khatab v Abellio London Limited — 2020

The claimant was employed as a bus driver and was dismissed on 17 April 2018 after a period of sickness absence for back pain. He argued that his absence had been exacerbated by stress following the respondent's refusal of additional annual leave to visit his sick son. The tribunal found that the respondent had a potentially fair reason for dismissal, namely capability, and had followed its absence and long-term sickness procedures.

The tribunal found that the respondent obtained occupational health evidence, discussed the reports with the claimant, considered his medical certificates, held welfare and capability meetings, warned him that dismissal was possible, allowed representation, considered alternative roles, and provided an appeal. The medical evidence did not identify a foreseeable return to work date or adjustments, and the claimant accepted he could not undertake an iBus Controller role because it required sitting for long periods. The tribunal concluded that the respondent acted reasonably procedurally and substantively, so the unfair dismissal complaint was dismissed.

On the wages issue, the claimant said he should have received sick pay at his full-time rate because his move to part-time hours should only have taken effect when he returned to work. The tribunal found, on the balance of probabilities, that the agreement was to reduce his hours to part-time three days per week with effect from 11 September 2015. On that basis the complaint for wages or damages for breach of contract was ill-founded and dismissed.