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Fair Dismissal on Grounds of Incapacity

In this very protracted absence review process the Respondent Company engaged in regular and detailed communication with the Complainant about whether she was fit to return to work, after an Occupational Assessment conducted in March 2016 indicated that it was highly unlikely that the Complainant would ever be able to return to her previous duties. The Complainant disputed the prognosis and suggested that she was able to return to work immediately and was given an opportunity by the Company to provide a report from her own GP that she was fit to return to work and to safely carry out her duties. Despite a number of attempts to communicate with the Complainant by both email and courier, no medical report was forthcoming and the Complainant failed to attend a number of scheduled meetings to discuss the matter. Correspondence issued to the Complainant as presented to the Adjudicator clearly stated that her return to work could be facilitated subject to medical evidence, with subsequent correspondence stating that if the Complainant did not attend a rescheduled meeting to discuss the matter a decision on her continued employment would be made in her absence. As the Complainant had failed to supply alternative medical evidence as requested from her in May 2016, and also failed to attend scheduled meetings about the matter, she was dismissed by letter on 25th November 2016 which was sent by courier. The decision to dismiss was appealed and the appeal was not upheld at a hearing on 12th January 2017.

The Adjudication Officer found that the Complainant was fairly dismissed on grounds of incapacity as she had failed to supply a medical certificate from her own GP to indicate fitness to return to work, or to attend a further appointment with the Company's Occupational Health Advisor.  It was held that the Company had behaved reasonably and afforded the Complainant every opportunity to counter the medical prognosis they had received. Humphries v Westwood Fitness Club was cited and the standards set for due process and consultation with the employee had been met.

Whilst the absence review procedure was was very protracted in this case, it does illustrate that a fair process that offers an employee the opportunity to provide alternative medical evidence and to provide feedback on a potential return to work can result in a dismissal being deemed fair even when an employee wishes to return to work after an occupational injury has occurred.

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