Ms Belinda Gilbert v Home Office — 2020

The claimant was dismissed on 8 February 2018 after sickness absence associated with Chronic Fatigue Syndrome, depression and work-related stress. The tribunal found that until January 2018 the respondent, particularly through Mr Jack, had engaged with the claimant and sought to support her return to work, including occupational health referrals and consideration of adjustments.

The tribunal found the respondent's critical error occurred after receiving the occupational health material in late December 2017. The report indicated that the claimant might be able to return in a different team with a different line manager, and at a meeting on 15 January 2018 the claimant did not reject a proposed move but asked for further details. The tribunal found it was reasonable for her to seek that information and that the respondent did not adequately investigate that option before moving to dismissal.

The tribunal accepted that the reason for dismissal was capability and that this was a potentially fair reason under section 98 of the Employment Rights Act 1996. However, it held that dismissal was unfair under section 98(4) because the dismissing officer should have further investigated the medical evidence and the possibility of a return to a different role or manager, and should have waited longer before deciding to dismiss. The tribunal found no contributory fault, and gave non-binding guidance that it would be inclined to apply a 25% Polkey reduction if remedy were not settled.