(sitting alone) Mrs A Gilchrist v Limited (in Liquidation) — 2018

The claimant complained of unfair dismissal after being dismissed for what the respondent described as some other substantial reason, namely unacceptable absence levels. The tribunal accepted that the respondent had shown a potentially fair reason under s98(1)(b) ERA, but went on to consider whether dismissal was reasonable under s98(4) ERA.

The tribunal found that no reasonable employer, on the information available, would have concluded that there was no underlying health condition or no mitigating circumstances. The relevant absences in 2016 and 2017/18 were found to relate to ongoing issues with the claimant's left knee, beginning with an accident at work in April 2016, and the respondent had medical and other information pointing to that connection.

The tribunal also found that the respondent managed the claimant by reference to short-term absence triggers despite the relevant absences falling within the long-term absence procedure, and that other relevant factors such as length of service, prior employment history, possible redeployment, and the absence-free period after return to work were not considered. The appeal was procedurally unfair because the person who heard it had already reviewed and approved the dismissal decision. Compensation was awarded for unfair dismissal, with no Polkey reduction and no Acas uplift.