Ms M McDonald v Marks and Spencer plc — 2021

The claimant was dismissed after a one-shift migraine absence on 15 July 2019 caused her to meet the triggers under the respondent's new Sickness Absence Policy, while she was subject to a live final written warning issued under the previous Attendance at Work Policy. The tribunal accepted that the respondent's reason for dismissal was the claimant's recurring absences and the operation of the attendance policy triggers, amounting to some other substantial reason under section 98(1)(b) ERA.

The tribunal found that the earlier written warning and final written warning had been issued fairly under the previous policy, and that the new policy triggers were not inherently unreasonable. However, the claimant had not been informed of the new policy or the changed triggers before they took effect. The tribunal held that dismissing her for failing to comply with changed sickness absence thresholds which had not been communicated did not fall within the range of reasonable responses under section 98(4) ERA.

On remedy, the tribunal found there was a 100% chance the claimant would have been dismissed on the same date if the respondent had properly communicated the new triggers, so the compensatory award was reduced to nil under Polkey. The basic award was reduced by 15% under section 122(2) ERA because the claimant had not raised her lack of awareness of the new policy at the return to work meeting or absence review meeting, resulting in an adjusted basic award of £1,397.40.