Miss D Foley v The Chief Constable Of Merseyside Police — 2026

Miss Foley was dismissed on 11 December 2023 following a capability process. The tribunal accepted that the principal reason was her capability to provide regular and sustained attendance, rather than her part-time, term-time or home-working pattern. It found that she had experienced very high absence levels over approximately 16 years, had not provided regular and reliable service after her removal from safeguarding work, and had failed to engage adequately with attempts at redeployment. The respondent had made numerous attempts to return her to work or find alternative work, and there was no reasonable prospect at dismissal that her attendance would improve.

The tribunal found that the capability investigation, hearing and appeal were reasonable. It accepted that ACC Wilson considered the claimant's personal circumstances, the reasons for her absences, the effect on colleagues and managers, and the unsuccessful redeployment process. Proceeding with the rescheduled capability hearing in the claimant's absence was reasonable because she had notice, had not requested a postponement, and had not provided representations or supporting evidence. The dismissal was for a fair reason, followed a fair procedure and fell within the range of reasonable responses, so the unfair dismissal complaint was dismissed.

The direct sex discrimination complaints concerned discipline and dismissal for absence, restrictions on home working, allocation of work, support with redeployment forms and the capability hearing. The tribunal found no evidence that a man with the claimant's attendance record and lack of engagement in redeployment would have been treated more favourably. Mr Kay was not in materially similar circumstances, substantial assistance with the redeployment forms had been offered, and the decisions concerning home working and capability arose from attendance and operational issues rather than sex. The direct sex discrimination complaints were therefore dismissed.

Most alleged harassment was not related to sex. The tribunal found that the comments that it was not Merseyside Police's responsibility to arrange the claimant's childcare and that the respondent was effectively paying her to care for her children at home were related to sex under British Bung Manufacturing Co Ltd and another v Finn, because childcare responsibilities are more prevalent among women and such comments are more likely to be directed at women. Applying s.26(4) Equality Act 2010 and Richmond Pharmacology v Dhaliwal, however, it found that in the circumstances it was not reasonable for those comments to have the prohibited effect; the harassment complaints were dismissed.

The part-time-worker complaints were dismissed because the claimant identified no actual comparable full-time worker, as required by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and Carl v University of Sheffield. The tribunal also found that, even if a hypothetical comparator were considered, there was no evidence that a full-time worker in otherwise comparable circumstances would have received more favourable treatment. The unauthorised-deduction complaint was also dismissed: although the claimant advanced a figure of £530, she could not establish how or when it had been deducted or when it was properly payable under s.13 Employment Rights Act 1996. No remedy was awarded.