Robust absence management procedure leads to fair dismissal

  • Employment Law
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Peninsula Group, HR and Health & Safety Experts

(Last updated )

The case of Maxwell v HBOS serves as a useful reminder of the importance of implementing and adhering to robust internal policies and procedures as, ultimately, this led to the successful defence of an unfair dismissal claim.

Following a restructure process, a long-service employee (started May 1998) was given the option of volunteering for redundancy, which he did. However, it was made clear to him, and all others, that there was no guarantee a voluntary redundancy (VR) request would be accepted and, eventually, the employer decided not to proceed with VR for this individual.

Instead, in June 2018, he was offered an alternative role which he reluctantly accepted. In October 2018, he argued that the new role was unsuitable so asked for his VR application to be reconsidered, but this was rejected. The business later initiated a further round of voluntary redundancies but the employee wasn’t eligible to apply due to the grade of his new role being too low.

In April 2021, he submitted a grievance alleging he’d been unfairly treated during restructures; that he was forced to move to a lower grade role; and that he was denied the opportunity to apply for VR. The employee argued that he’d been let down, unappreciated, pushed around and not taken seriously, and stated that the combined issues had led him to suffer from stress and mental health issues. When asked of his preferred grievance outcome, he made it clear he wished to be redundant. The grievance and subsequent appeal were not upheld, and the employee was signed off sick.

Early in his sickness absence, the manager agreed to weekly check-in meetings; referred him to various support networks, such as EAP, Bupa and Bank Workers Charity; created a wellness plan to record discussions and actions; and arranged an occupational health assessment. These steps were all in line with the internal “Health, Wellbeing and Attendance Policy.”

The occupational health report indicated that the employee felt the working relationship had irretrievably broken down, and that returning to work would be “extremely difficult.” OH recommended the employee complete two or three counselling sessions before discussing work issues, and that a stress risk assessment be conducted.

The employer confirmed they were happy to implement the OH recommendations and undertook several further meetings under the “wellness plan,” as well as made attempts to identify a mental health advocate for the employee. Despite this, by May 2022, all attempts to encourage him to return to work had failed and the final review meeting stage was reached.

The employee was made aware that a potential outcome of this meeting was dismissal. He was clear that he could see no way of returning to work, as he felt he had been badly treated and didn’t trust management. His union rep suggested considering something other than dismissal, such as redundancy or ill-health retirement, but there was no need for redundancies and no medical evidence to suggest he’d never work again, so both were rejected.

Ultimately, the employee was dismissed under medical capability. An appeal was raised but not upheld, leading to a claim for unfair dismissal being raised.

The ET rejected the claim and highlighted that the key to this decision was the employer’s efforts to accommodate his concerns and bring him back to work. Specifically, it consulted him throughout the absence, implemented counselling, undertook a stress risk assessment and offered adjustments recommended by occupational health, including reduced hours, discretionary breaks and a phased return. The process followed in this case is what led to the employer’s success.

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