Ms N. Christian v Marks and Spencer plc — 2022

The claimant was dismissed after just over five months of sickness absence for work-related stress, depression and panic attacks. The tribunal found that the sole reason for dismissal was capability, namely ill-health and consequent absence from work, and that there was no evidence of an ulterior motive connected with another employee.

The tribunal found that the respondent consulted with the claimant through calls and meetings, attempted to arrange further meetings, warned her that dismissal was a possible outcome, and sought consent for an occupational health referral. It found that the claimant did not fully cooperate with the process, including by not attending later meetings and not returning the occupational health consent form before dismissal. The tribunal concluded that the respondent acted reasonably in proceeding on the information available.

The tribunal also found that the respondent had reasonably explored alternatives, including work in the lingerie department, a role at the Thurrock outlet store, and an opportunity at Marble Arch, but that the claimant only wanted a VM stylist role in one of her preferred stores and no such vacancy was available. It held that dismissal fell within the band of reasonable responses and dismissed the unfair dismissal claim. The wrongful dismissal claim was dismissed because the claimant had been paid the notice pay to which she was entitled.