The Complainant had been employed since May 2006 and was absent on sick leave from 20th April 2015 until her dismissal in January 2016. The Complainant's medical certificates indicated that she had a neck and shoulder injury or a medical illness and was unable to give a return to work date at a sick review meeting on May 10th 2015. The Complainant did not attend a further absence review meeting on May 26th but attended the re-scheduled meeting on July 16th when she was still awaiting X-ray results. An occupational assessment appointment in September 2015 confirmed that the Complainant was unfit for work or modified duties and would remain unfit to return within a further three months. The Complainant then failed to attend four scheduled absence review meetings on September 30th, October 27th, November 3rd and 12th November. The Complainant did attend a review meting on December 1st and confirmed she was unable to provide a return to work date. The Respondent also wrote to the Complainant on September 14th and December 8th about her failure to submit required medical certificates. The Complainant attended a meeting on December 18th to discuss her employment status and was informed advance of the meeting by letter that termination of employment was a possible outcome. The Complainant confirmed there was no change to her medical status and that she was unlikely to be able to return in the near future. The Complainant's employment was terminated on January 14th 2016 with four weeks notice and she declined to exercise the right of appeal offered.
The Complainant then submitted a sick note on January 23rd 2016 which she was told was not required as her employment had been terminated. The Complainant said she had not received the termination letter and did not understand that a decision about her employment was going to be made after the meeting of the 18th December 2015.
The Adjudicator found that the Respondent had acted reasonably in terminating employment on grounds of the Complainant's incapacity which was confirmed medically and that the Company had satisfied the obligations placed on it as set out in Humphreys v Westwood Fitness Club . The Adjudicator found that the Respondent had been proactive and diligent in establishing the medical status of the Complainant and that the purpose of the meeting on 18th December 2015 had been clearly communicated in advance "I must warn you that a possible outcome of this meeting may be to terminate your employment on the grounds of sickness capability". An interpreter was also present at the meeting.
The Adjudicator also noted that the Complainant's level of co-operation in the review process was not satisfactory as she had failed to attend five scheduled meetings and to submit medical certification on time and found that it was not wholly credible that the termination letter had mysteriously failed to arrive when all previous communications were successfully delivered.
The complaint of unfair dismissal was not upheld.