Unfair Dismissal Following Two Years’ Sickness Absence

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Tokheim (UK) Ltd employed William Low as an assembly operator in June 1999. He began to suffer back pain early in 2010 and on 18th February 2010 he was signed off sick with severe sciatica. He underwent surgery in July and September that year in an attempt to resolve the problem but his condition had worsened by March 2011.

He had further surgery in September 2011, following which it was expected that he would at some time be able to return to work, and Mr Low kept Tokheim informed of the situation throughout. In November 2011, Tokheim wrote to him inviting him to a disciplinary hearing on 4th November 2011 stating they were considering terminating his employment due to his ongoing incapacity to attend work.

The Company accepted that he had fully complied with the Company’s absence procedures in providing medical reports and updates and that his surgeon had indicated he would be able to return to work although could not confirm exactly when. However the Company decided to terminate his employment with immediate effect following the disciplinary hearing.

Mr Low claimed unfair dismissal and the tribunal ruled in his favour stating that Tokheim should have obtained a medical report and prognosis before they decided to terminate his employment and ordered them to pay £4,500 in compensation to Mr Low.

It is essential for employers to ensure they have the most recent information on the employee’s ability to return to work before deciding to terminate. We advise referring employees who are long-term sick to an occupational health specialist for a report on their condition and likely ability to return to work, considering any possible alternatives before deciding to terminate.

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