Automated Summary
Key Facts
Employment Tribunal ruled Abellio London Ltd unfairly dismissed Mr B Chowdhury on 24 May 2017 due to long-term sickness absence. The claimant, with eight years' service and no prior sickness history, had been on sick leave since 2 February 2017 for left shoulder pain. The employer dismissed him without waiting for his physiotherapy appointment on 23 June 2017, despite the claimant indicating he expected to return to work on that date and his condition improving. The Tribunal found the dismissal unreasonable as the employer failed to follow a reasonable procedure and the decision fell outside the band of reasonable responses.
Issues
- The respondent established that the dismissal was for capability due to long-term sickness absence, which is a potentially fair reason under the Employment Rights Act 1996. The Tribunal found this reason to be valid as the dismissal was admitted by the respondent.
- The Tribunal found the dismissal unfair because the employer, Ms Patel, was unreasonable in refusing to await the outcome of the claimant's physiotherapy appointment on 23 June 2017. The claimant was improving, had a clear return date, and the employer could have reasonably waited. The employer's decision fell outside the band of reasonable responses.
Holdings
The Employment Tribunal found that the dismissal was unfair. The Tribunal determined that the employer, Ms Patel, did not reasonably wait for the outcome of the claimant's physiotherapy appointment on 23 June 2017, despite the claimant indicating he expected to return to work on that date and the medical evidence showing improvement. The dismissal was outside the band of reasonable responses.
Remedies
The Employment Tribunal found the dismissal to be unfair and ordered a remedy hearing on 18 May 2018 to determine appropriate compensation. The claimant was directed to submit an updated schedule of loss by 6 April 2018, including evidence of mitigation efforts. The hearing is listed for 3 hours.
Legal Principles
- The employer's decision must fall within the band of reasonable responses that a reasonable employer could adopt, considering all circumstances including the employee's improving condition and specific return-to-work dates. The Tribunal found the employer's refusal to await a physiotherapy appointment (23 June 2017) was unreasonable and outside this band.
- The burden of proof is neutral in unfair dismissal cases. The employer must establish a potentially fair reason for dismissal (such as capability), and then the Tribunal must determine whether the dismissal was fair in all circumstances, including the size and resources of the employer. This is mandated under section 98(4) of the Employment Rights Act 1996.
Cited Statute
Employment Rights Act 1996
Judge Name
K Andrews
Passage Text
- In all the circumstances therefore I conclude that the decision to dismiss was outside the band of reasonable responses and unfair.
- it was not reasonable for Ms Patel to refuse to await the outcome of that appointment; she could reasonably be expected to wait longer. The claimant, who had eight years' service and no relevant prior sickness history, had commenced the absence on 2 February 2017 and his condition was improving. He was cooperating with the respondent's process and taking the required action to aid his own recovery. Deciding to dismiss on 22 May 2017 and refusing to await the outcome of the appointment on 23 June 2017 was unreasonable in all the circumstances including the size and resources of this large employer.