(sitting alone)5 Mr M Swan v Caledonian MacBrayne Crewing (Guernsey)Limited — 2023

The claimant, Mr M Swan, was employed by Caledonian MacBrayne Crewing (Guernsey) Limited from 10 May 2010 until his dismissal on 13 February 2023. The only claim presented was unfair dismissal. The tribunal found that the respondent dismissed him for capability arising from intermittent sickness absence, which was a potentially fair reason under section 98 of the Employment Rights Act 1996.

The tribunal accepted that the respondent had applied its absence policy and had given the claimant warnings before dismissal. He received a Level 1 attendance warning on 18 January 2022 and a Level 2 warning on 8 November 2022 / 22 November 2022 after further absences. A Stage 3 Contract Review Meeting was convened after he was absent from work following his aunt’s terminal illness and death; the meeting took place on 10 February 2023 and the claimant was dismissed shortly afterwards. His appeal was heard by Craig Ramsay and was unsuccessful.

In considering reasonableness under section 98(4) ERA 1996, the tribunal rejected the claimant’s arguments that he had been targeted, that the respondent delayed unreasonably, that it relied on an inadmissible sickness history going back eight years, or that he had been denied welfare support or a proper chance to explain mitigation. The tribunal found that the claimant had been given welfare calls, had been told about unpaid compassionate leave and dependants leave, and had been given an opportunity to make representations at the review meetings. It also found that the respondent was entitled to take account of the full absence history under its policy and that the claimant’s overtime did not offset the operational impact of sickness absence.

The tribunal held that the dismissal was within the band of reasonable responses and therefore fair. It noted that the decision was at the harsh end of the band in light of the very recent death of the claimant’s aunt, but that this did not make it unfair. The claim was dismissed and no monetary award was made.