Mr A Ali v GH London Ground Handling Services Ltd — 2022

Mr Ali worked as a customer service agent at Heathrow from 2001, with a Tupe transfer to GH London Ground Handling Services Limited on 1 December 2014. He began sickness absence on 6 July 2020 and remained on fit notes until dismissal. The tribunal recorded that his contract entitled him to 52 weeks' full sick pay because he had more than six years' service, and that he kept the respondent informed throughout. The employer did not contact him about the absence until about 3.5 months had passed, when it began a sickness review process.

An occupational health report on 12 November 2020 said the claimant's skin changes were compatible with psoriasis. It said he remained unfit for his full duties, but could undertake sedentary duties such as check-in work for up to four hours at a time, and recommended further medical investigation and specialist referral. After a meeting on 20 November 2020, the claimant sent the report to his GP and asked for a response. On 26 November 2020 the respondent said it had decided to prefer the occupational health report and required him to return on four-hour shifts the next day. At the final sickness meeting on 1 December 2020, GL said the respondent would go ahead with the occupational health advice and that a dismissal could follow if he did not return.

The dismissal letter of 2 December 2020 said the parties had reached a stalemate and there was no foreseeable date when he would be fit to return, because he was refusing to accept the occupational health advice. The appeal was heard on 8 December 2020. The appeal outcome upheld the dismissal and rejected the GP letter sent by the claimant because it was not signed or dated. The tribunal found that the principal reason for dismissal was the respondent's belief that a stalemate or impasse had been reached, not capability, because GL and then EC considered the claimant capable of returning on reduced hours. On that basis, it held that the respondent had not shown a potentially fair reason under section 98(1)(b) ERA 1996 and the dismissal was unfair.

The tribunal also found that, even if there had been a potentially fair reason, the process was unreasonable. The respondent had made up its mind early, did not wait a reasonable time for the GP's comments, did not refer back to occupational health for clarification, did not properly explore the claimant's duties on return, and did not provide the written meeting outcomes required by its sickness absence procedure. Applying the Polkey issue, the tribunal found the claimant would probably have returned to work sometime between mid-February and the end of May 2021 after a consultant review, so there should be no deduction for a chance of dismissal in any event. It also found no reduction for conduct or contribution because the claimant cooperated throughout, attended the meetings, and kept the respondent updated.