Delay in challenging repeated sickness meant dismissal was unfair

Background facts

Mr Rumbold (R) began working at Jaguar Land Rover (JLR) in 1999. Over the course of his employment, R was absent due to incapacity on no less than 808 separate occasions.

There was no single cause for his absences; as well as injuries sustained at work, R took time off following an alleged assault.

Health-related issues

On other occasions, R cited various general health-related issues. In 2018 he notified JLR that he had been diagnosed with avascular necrosis disease in his hip. This condition caused R to be absent from 12 March to 13 August of that year.

On his return to work R was asked to attend a return to work interview with his line manager. This included a review of his health and a discussion about what support JLR could offer him.

Alternative roles

As R couldn’t carry out his usual job role due to his condition, JLR temporarily moved him to alternative job roles.

In December 2018 R was refused a request for holiday. Nevertheless, he didn’t turn up to work stating that he had to attend a medical appointment. This prompted JLR to launch an investigation into his performance.

Performance review

This process was conducted by another manager, Mr Carter (C). He noted that R “had the worst absence record” he had ever seen and it was estimated that his 808 episodes of sickness absence had cost JLR over £95,000 in sick pay.

As a result JLR terminated R’s employment with immediate effect on 7 December 2018.

Tribunal claim

R then claimed unfair dismissal, discrimination and failure to make reasonable adjustments at the employment tribunal. Whilst it had some sympathy for JLR, it was critical of the way it had chosen to handle R’s sickness absence.

Rather than challenge R’s absences when they reached an unacceptable level, JLR had allowed the situation to silently drag on for nearly two decades. C had then looked at all of R’s absences together but no consideration was given to whether he had a disability or if reasonable adjustments were necessary. This meant JLR had effected an unfair dismissal.

Key points

JLR’s biggest mistake was that it did not question R’s sickness absence until 2018, long after his record had become unacceptable. If an issue is allowed to drift unchallenged, this is likely to end up going against the employer.

It’s best to hold a return to work interview after every episode of sickness absence. As well as discouraging fraudulent sickness absence, this will enable an employer to pick up on questionable absence patterns and ascertain if any adjustments or support may be needed.