Mr K Thompson v Board 24 Ltd — 2022

Mr Thompson worked for Board 24 Ltd for 25 years, most recently as a fork lift truck driver. He went off sick on 6 July 2020 and did not return before his dismissal on 22 June 2021. The tribunal accepted that he had previously had a very good sickness record and that the respondent had also investigated his earlier grievance allegations of bullying and harassment, finding no evidence to support them.

The unfair dismissal claim was brought on capability grounds. The tribunal recorded that the respondent engaged with the claimant throughout the absence process, held absence meetings, asked for information about his sickness and medication, sought permission to contact his GP, and referred him to Occupational Health and the company’s employment assessment scheme. The claimant did not provide sufficient medical information, refused Occupational Health, and at the capability meeting on 11 June 2021 said he was not fit to return to work and did not know when he might be able to return.

Applying section 98 ERA 1996 and the case law it cited on ill-health dismissal, including Iceland Frozen Foods, Spencer, Daubney, BS v Dundee City Council and McCadie, the tribunal found that the respondent genuinely believed the claimant was no longer capable of performing his duties. It found that the respondent had adequately consulted him and had carried out a reasonable investigation into his up-to-date medical position.

The tribunal also found that the respondent had waited a sufficient period before dismissal, given that the claimant had been absent for nearly 50 weeks and had not provided the information needed to assess a safe return to work. It held that dismissal for capability fell within the range of reasonable responses. The claimant’s unfair dismissal claim was therefore dismissed and no remedy was awarded.