M A v The Secretary of State for Justice — 2024

The claimant brought a complaint of unfair dismissal after being dismissed by the respondent on capability grounds following long-term sickness absence. The tribunal recorded background findings that the claimant had experienced sexual harassment and a sexual assault by a colleague, that the colleague was later dismissed and convicted, and that the claimant’s health difficulties and absence were connected with those events. The tribunal also noted that possible disability-related arguments might have been arguable, but they were not claims before it.

The tribunal found that, by the time of the first and second formal absence review meetings, the claimant was saying that she could not return to work and had no anticipated return date. Occupational health reports also indicated that she was not fit to return to work, that there were no adjustments suggested to facilitate a return, and that a return to work in the prison service was unlikely in the foreseeable future.

The tribunal accepted that the decision-maker considered the claimant’s own comments, the occupational health material, possible alternative roles, the cause of the absence, and the operational impact of continued absence. Although the respondent might have waited longer, the tribunal concluded that dismissal at that point was within the range of responses of a reasonable employer and that the dismissal was not unfair.