Claimant v Mahenthran v Open Reach Ltd — 2022

Mrs Mahenthran was employed by Open Reach Limited from 19 June 1989 until her dismissal on 12 June 2019 as a jeopardy controller. The tribunal accepted that all of her sickness absences were genuine, but found they were for a range of different reasons and that there was no underlying health condition accounting for all, or the majority of, the absences. It held that the reason for dismissal was failure to maintain an acceptable level of attendance arising from repeated sickness absence. Applying Wilson v The Post Office, the tribunal characterised that reason as some other substantial reason within section 98(1)(b) ERA 1996; it said the facts could also fall within capability under section 98(2)(a).

On fairness, the tribunal found the respondent followed its attendance policy by issuing an initial formal warning in July 2018, a final formal warning in August 2018, and then moving to dismissal after further absence in January 2019. It found the claimant had been offered occupational health support at stages of the process, that the policy did not require the 43-day stomach-related absence to be discounted, and that there was no requirement to extend monitoring periods. The tribunal also accepted that the second and third line managers could rely on the earlier stages of the process and did not have to reinvestigate the case from scratch.

Under section 98(4) ERA 1996 and the band of reasonable responses, the tribunal held the dismissal was fair in all the circumstances, taking account of the claimant's long service, the impact of the absences on the business, and the later absences after the final warning. The claim was therefore dismissed. The judgment records that the parties had agreed hypothetical remedy figures if needed - a basic award of £15,225, £500 for loss of statutory rights, and past loss of earnings of £37,275 - but no award was made because the claim failed.