D Hoey Mr A Ferguson v Multi Packaging Solutions UK Limited — 2018

The tribunal found that the sole claim was for unfair dismissal and that the reason for dismissal was capability within section 98(2)(a) ERA 1996. The claimant had been employed since 2004, had long periods of absence in 2016 and 2017, and had been managed through occupational health input, temporary light duties, altered hours, and a final written warning issued on 31 March 2017. The tribunal accepted that the respondent had tried to support a return to work and that the claimant was still unfit to do the contracted role at the point of dismissal and appeal.

A central issue was the claimant's capacity to resume the role he had been employed to do, as opposed to only light duties. The tribunal accepted that there was confusion after the 24 April 2017 review meeting about what tasks the claimant would perform when his hours increased, but it found that the respondent had not acted unreasonably in concluding that the claimant could not safely or reliably return to the full role. The tribunal accepted the medical evidence before the respondent, including occupational health, GP, and physiotherapy input, and noted that the claimant himself said he was not able to do the job he had been contracted to do at the time of dismissal and appeal.

Applying section 98 ERA 1996 and the range of reasonable responses approach, the tribunal concluded that dismissal on 17 May 2017 fell within the range open to a reasonable employer. It held that the respondent was entitled to decide that it could not wait any longer given the length of absence, the uncertain prognosis, the impact on operations, and the repeated pattern of attempted improvement followed by setbacks. The tribunal noted that more involvement from occupational health in day-to-day meetings might have helped, but it found that the outcome would not have differed.

Because the dismissal was found to be fair, the tribunal did not determine compensation. It nevertheless observed that if dismissal had been unfair, it would likely have found that dismissal would have occurred shortly afterwards in any event, probably during summer 2017. The judgment therefore ends with the dismissal of the unfair dismissal claim and no monetary award.