(sitting alone) Miss I Bruce v Association Ltd — 2018

The claimant worked for Ark Housing Association Ltd as a care worker from 23 December 2014. The tribunal found that the respondents operated a detailed sickness absence management policy because short-term absences were disruptive in a care setting involving vulnerable service users. The claimant had a series of short absences across 2015, 2016, 2017 and early 2018 for a range of reasons, including sickness and diarrhoea, respiratory illness, personal stress, virus infection, headache/migraine and joint/bone injury.

The tribunal accepted that the claimant passed the relevant triggers under the respondents' policy and was taken through stages 1, 2 and then stage 3 of the absence procedure, although the respondents showed flexibility on earlier occasions by not immediately escalating her to the next stage. It found that managers discussed her absences with her, explained the process, and offered support, including access to a confidential counselling service, which she declined. The tribunal rejected the suggestion that the claimant's absences all stemmed from the January 2016 incident involving a service user's death, finding there was no evidential basis for that link.

Applying section 98 of the Employment Rights Act 1996 and the authorities on intermittent short-term absence, the tribunal held that the dismissal was for capability arising from health-related attendance and that it was not for the tribunal to substitute its own view of the appropriate attendance threshold. It accepted the respondents' evidence that intermittent absences caused particular operational difficulty in their service and concluded that, although the decision was harsh, it fell within the band of reasonable responses open to a reasonable employer. The unfair dismissal claim was therefore dismissed, and no remedy was awarded.