Claimant v Marldon Service Station Ltd (Cox of Torbay)
Outcome
Individual claims
The respondent dismissed the claimant for capability reasons after long-term sickness absence but failed to follow a fair procedure. No reasonable warning was given, no OH or medical report was obtained, and the claimant was dismissed the day after a 'friendly chat' without a formal meeting or opportunity to respond. Although the substantive outcome would have been the same, the procedural unfairness rendered the dismissal unfair.
The claimant was entitled to 12 weeks' statutory notice pay as she had been employed for at least 12 years. She was dismissed with immediate effect without payment in lieu of notice. The respondent conceded this claim and the tribunal awarded £3,000 representing 12 weeks at £250 per week.
Workers on long-term sick leave can carry over a maximum of 4 weeks' holiday entitlement to be used within 18 months. The respondent paid the claimant 4 weeks rolled-over holiday pay plus accrued holiday for the final year of employment. The tribunal found the claimant was not entitled to any further holiday pay.
Facts
The claimant worked as a forecourt assistant for 17 years from 2006. She was on continuous sick leave from March 2020 onwards, sending in sick notes but receiving no pay. After over three years' absence, the respondent's manager visited her home on 25 May 2023 for a 'friendly chat', asked if she could return to work, then suggested she resign. When the claimant declined, the manager said dismissal would be considered. The next day, after an unsuccessful phone call, the respondent dismissed the claimant by text message with immediate effect without any formal meeting, warning, medical report or appeal.
Decision
The tribunal found the unfair dismissal claim succeeded because the respondent failed to follow a fair procedure: no reasonable warning, no medical report, no formal meeting and no appeal. The notice pay claim succeeded as the claimant was entitled to 12 weeks' statutory notice. However, no compensatory award for lost income was made because the claimant remained unfit for work and would have been fairly dismissed after a proper procedure. The holiday pay claim failed as the respondent had already paid the maximum entitlement for long-term sick leave.
Practical note
Even where dismissal for long-term sickness absence would be substantively fair, employers must still follow fair procedure including obtaining medical evidence, holding a formal meeting with reasonable notice, and offering an appeal - dismissal by text message without these steps is unfair.
Award breakdown
Award equivalent: 37.9 weeks' gross pay
Adjustments
Had respondent acted fairly and gone through a reasonable procedure, the substantive outcome would have been the same because claimant had been absent for over three years with no reasonable return date in sight. Tribunal made no compensatory award for lost income as claimant would have been dismissed in any event after a fair procedure.
Legal authorities cited
Statutes
Case details
- Case number
- 1404184/2023
- Decision date
- 6 May 2025
- Hearing type
- full merits
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- retail
- Represented
- Yes
- Rep type
- lay rep
Employment details
- Role
- forecourt assistant and cashier
- Salary band
- Under £15,000
- Service
- 17 years
Claimant representation
- Represented
- No
- Rep type
- lay rep