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Dismissal of an employee on long term sick leave deemed fair by the Employment Appeals Tribunal26th February 2013 Employment
Case - Jennings v Barts and The London NHS Trust UKEAT/0056/12
Mr Jennings worked for the Respondent NHS Trust for 9 years until his dismissal in January 2008, on grounds of poor attendance due to poor health. During his employment he had intermittent ill-health absences, initially due to back problems and latterly to angina and a stress related psychiatric problem due to a car accident. This was initially diagnosed as post-traumatic stress disorder (PTSD) and caused anxiety, panic attacks and sleep disorders.
The Trust applied a vigorous short term absence policy. In July and August 2007, Mr Jennings took a few short term absences sue to "stress. Disciplinary proceedings were started under the policy. Mr Jennings claimed this put him under further stress, meetings were arranged to discuss this but were always postponed or held in his absence when he failed to attend. At the latest hearing, the Trust commenced its long term sickness absence procedure without informing Mr Jennings (this was against policy).
In November 2007, an Occupational Health (OH) report suggested a phased return starting in four to six weeks. Mr Jennings was asked to complete a "stress at work questionnaire. He never completed this despite being reminded. A further OH report suggested that a phased return to work should begin in March 2008. However on 23 January 2008, a final stage meeting under the long term sickness absence procedure, concluded that his continued absence was unfair to colleagues, and Mr Jennings may not even return to work as no date had been set or confirmed by him. Mr Jennings was dismissed and the appeal was unsuccessful.
Mr Jennings brought proceedings for Unfair Dismissal and Failure to make reasonable adjustments. The Tribunal rejected both claims.
The dismissal was deemed not to be unfair. Mr Jennings argued that since an OH report suggested a phased return to work in March 2008, it was premature to dismiss him in January. The Tribunal however held that OH reports were usually "positive and optimistic as this is what employees suffering from stress and depression needed to hear. The report rather envisaged a further review in March and Mr Jennings had himself been pessimistic about his return to work in March. Mr Jennings had made no suggestions regarding his return to work, or options for redeployment despite having ample opportunities to do so.
Regarding the disability issue - the Trust now accepted that Mr Jennings had a disability but argued that at the time they did not and could not have known. This was rejected by the Tribunal who held that the Trust had "imputed knowledge of the disability. However, with regard to the failure to make reasonable adjustments, the Tribunal found that the provision, criterion or practice in question, was the short term absence policy and the fact that it did not permit unplanned intermittent absences without sanctions that would ultimately lead to dismissal. The Tribunal did not uphold Mr Jennings claims, however, that it would have been reasonable for the Trust to exempt him from the short term absence policy.
Mr Jennings appealed against each decision.
Employment Appeals Tribunal (EAT)
The EAT upheld the Tribunal's decisions. The EAT acknowledged that the full list of issues had not been gone through in detail however held that it was not necessary for the Tribunal to discuss everything on the list, and that the Tribunal had explained its reasonings adequately. The EAT agreed on all of the conclusions and confirmed that the Tribunal had not fallen in error at any point.