Mr D Withell v Greencore Food To Go Limited — 2020

Mr Withell was employed as a Picker/Auditor from 2 February 2016 until his dismissal on 6 March 2020 for capability arising from sickness absence. The tribunal accepted that the Respondent operated a staged sickness absence policy, that the Claimant had progressed through Stages 1 to 4 following repeated absences, and that the Stage 4 meeting ended with dismissal. It found no evidence that the Claimant had been told by Respondent staff not to take prescribed medication at work.

The tribunal held that the Respondent had shown a potentially fair reason for dismissal under section 98(2)(a) ERA 1996, namely capability, and it accepted that the sickness absence policy itself was not inherently unfair. However, it found that the dismissal fell outside the band or range of reasonable responses because the Respondent did not properly apply its own Stage 4 process. Paragraph 11.3 of the policy required consideration of whether there was a reasonable likelihood of return to work or achieving the desired level of attendance in a reasonable time, and the tribunal found that this enquiry was not carried out.

The tribunal also found that the Claimant was unfairly denied an appeal. The dismissal letter had been sent to the wrong address, the Claimant did not receive it, and the Respondent refused to entertain an out-of-time appeal despite the short delay and the Respondent's error. Applying Polkey v AE Dayton Services Ltd, the tribunal considered that an appeal was unlikely to have changed the outcome, but that did not cure the procedural unfairness. The dismissal was therefore held unfair.

After announcing its decision, the tribunal refused the Respondent's application for reconsideration. Remedy was adjourned to 21 January 2021, so this judgment does not record a final compensation figure.