Miss J Fisher v Department for Work and Pensions — 2021

The claimant was employed by the Department for Work and Pensions as a Decision Maker and was dismissed on 28 October 2019. The tribunal treated the claim as unfair dismissal under the Employment Rights Act 1996; although the claimant referred to constructive dismissal, she accepted that she had not resigned.

The tribunal found that the respondent proved the reason for dismissal was the claimant's sickness absence and poor prospects of reliable attendance, which related to capability. It found that the respondent followed a reasonable procedure, including staged attendance management, meetings, appeal opportunities, consultation efforts, and offers of Occupational Health, the Employee Assistance Programme and a stress reduction plan.

The tribunal concluded that by October 2019 it was reasonably open to the respondent to decide it could not wait any longer, given the claimant's pattern of absences, the impact of absence, and the lack of grounds for optimism that attendance would improve. The dismissal was therefore fair.