Jones (sitting alone) Mr A Neilson v – represented by Mr I Burke, solicitor Burke and Bannerman B&K Hume Groundswork Ltd — 2019

Mr Neilson was employed as a general operative from 1 March 2008 until his dismissal on 26 January 2018. The tribunal found that the period from September to November 2010 was a lay-off rather than a dismissal, so his continuous service ran from 1 March 2008. On that basis he had 9 completed years' service and had not been paid his full notice entitlement; £350 unpaid notice pay was awarded.

The tribunal accepted that the dismissal was for capability arising from the claimant's sickness absence and hernia-related surgery, but it found the procedure unfair. The respondent did not contact the claimant during most of his absence, relied on a 20-minute occupational health phone assessment and a contradictory report, did not seek the claimant's GP's view, did not discuss the report with the claimant, and simply adopted the HR consultants' recommendations without independent consideration. The tribunal held the dismissal was outside the band of reasonable responses.

On appeal, the claimant produced a fit note dated 15 January 2018 stating that he could undertake a phased return to manual tasks within the limits of his discomfort and told the appeal hearing he was fit for work. The tribunal held the appeal process was also flawed because the report did not address that evidence and the respondent did not seriously consider re-employment. It noted that there was no evidence the absence had caused operational difficulties, that no permanent replacement had been found until around 18 months after dismissal, and that a reasonable employer would have given serious consideration to taking the claimant back. The tribunal awarded a basic award of £6,075, a compensatory award of £15,146.20, £350 for loss of statutory rights, and an overall total of £21,921.20. The Employment Protection (Recoupment of Jobseekers' Allowance and Income Support) Regulations 1996 applied, with a prescribed element of £12,250 for the period 26 January 2018 to 19 September 2018.