Claimant v Greene King Retail Limited
Outcome
Individual claims
Claim struck out for having no reasonable prospects of success. The claimant had been on continuous sick leave for over 12 months due to back, hip, and foot problems. He could not indicate when or if he would be fit to return to work, had no treatment that would improve his condition sufficiently, and no alternative roles were available. The dismissal on capability grounds was within the range of reasonable responses and both substantively and procedurally fair.
Claim for statutory sick pay struck out for having no reasonable prospects of success. Government documents showed the claimant's average earnings were not high enough to qualify for statutory sick pay. Additionally, even if entitled, the claimant would have exhausted entitlement during the 12-month absence and any claim would be out of time.
Facts
The claimant was employed as a kitchen porter for over 13 years (initially by Chameleon, then following TUPE transfer by Greene King). He suffered chronic back, hip, and foot problems that made standing for long periods impossible. He commenced sick leave in June 2022 and remained continuously absent for over 12 months. He could not indicate when or if he would recover sufficiently to return to work, and no alternative roles were available. He was dismissed on capability grounds on 13 October 2023 after meetings and an appeal.
Decision
The tribunal struck out both the unfair dismissal and unlawful deduction of wages claims on the basis they had no reasonable prospects of success. The dismissal was substantively and procedurally fair, falling within the range of reasonable responses. The wages claim failed because the claimant did not qualify for statutory sick pay due to insufficient earnings, and any entitlement would have been exhausted and out of time.
Practical note
A long-term capability dismissal following prolonged sickness absence will be fair where the employee cannot indicate when they will return, no medical improvement is foreseeable, and no suitable alternative roles exist, even if occupational health evidence was not obtained.
Legal authorities cited
Statutes
Case details
- Case number
- 2401084/2024
- Decision date
- 13 February 2025
- Hearing type
- strike out
- Hearing days
- 1
- Classification
- procedural
Respondent
- Sector
- hospitality
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Kitchen Porter
- Service
- 13 years
Claimant representation
- Represented
- No