Claimant v Asda Stores Limited
Outcome
Individual claims
The tribunal found the claimant was dismissed for capability (long-term absence of 33 months) which was a potentially fair reason. The respondent acted within the band of reasonable responses by conducting a reasonable investigation, consulting with the claimant, and offering alternative vacancies before dismissing after waiting a considerable period despite the claimant's intransigence and refusal to engage unless his preconditions (apology, compensation discussion) were met.
This claim was struck out at a preliminary hearing on 8 July 2024 before the final hearing and was not considered at the full merits hearing.
Facts
The claimant was a delivery driver absent for 33 months continuously from November 2020 due to anxiety and depression which he attributed to the respondent's handling of a road traffic incident on 10 November 2020. Despite numerous attempts by management to support his return and offers of alternative employment, the claimant refused to engage unless the respondent apologised and discussed compensation for his losses. The claimant exhausted grievance processes and won a partial appeal against disciplinary action. He was eventually dismissed by Mr Cecere in September 2023 for capability due to long-term absence with no foreseeable return date.
Decision
The tribunal found the dismissal was for the potentially fair reason of capability (long-term absence). The respondent acted within the band of reasonable responses by conducting adequate investigation and consultation, waiting 33 months, offering alternative roles, and following its policies. The claimant's intransigence in setting preconditions for engagement did not make the dismissal unfair. The tribunal rejected the claimant's suggestion that a senior manager rather than Mr Cecere made the dismissal decision.
Practical note
An employer may fairly dismiss for long-term absence even when the employee attributes their ill health to the employer's conduct, provided reasonable investigation, consultation and waiting periods are undertaken, and the employee's refusal to engage constructively can be a relevant factor supporting fairness.
Legal authorities cited
Statutes
Case details
- Case number
- 2502087/2023
- Decision date
- 12 August 2025
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- retail
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Home Shopping Delivery Driver
- Service
- 5 years
Claimant representation
- Represented
- No