Employment

Employee unfairly dismissed despite taking 1 in 4 days off sick

I read with interest last week that a train driver from Kent was awarded £28,000 in compensation from his former employer, rail operator Southeastern, following his successful claim for unfair dismissal.

The case made headlines when it was reported that 45 year old asthma sufferer Darrin Thomas had taken 134 days off sick between January 2009 and November 2010, with an average of 1 day in every 4 being a sick day. Mr Thomas was sacked for 'poor attendance' in November 2010 and subsequently brought a claim at the Employment Tribunal. During the Tribunal proceedings Southeastern gave evidence that, whilst Mr Thomas's very first and very last absences were recorded as being caused by asthma related symptoms, the interim sick notes did not refer to Mr Thomas's condition at all. The company claimed to have been unaware that Mr Thomas's asthma may have been the cause of his frequent absences - indeed, Mr Thomas himself accepted that he only raised this point when lodging his appeal against dismissal. Mr Thomas gave evidence during the proceedings that he hadn't been aware of the 'significance' of his condition until he appealed against the company's decision.

So where does this leave employers when trying to deal with employees with particularly poor absence levels? Well, it is important to remember that this story has been picked up by the tabloid press who, it could be said, have an interest in reporting a story in its most salacious form. Indeed, it is not immediately clear from the various reports whether Mr Thomas' claim was one of unfair dismissal only or whether he had also brought a claim for disability discrimination. Further, little is being reported on the process and investigations carried out by the company prior to it taking the decision to dismiss. Such is the furore created by this story that Mr Thomas's family has responded by starting their own website in order to inform the public of what they say is the 'real story' behind the less sympathetic headlines.

Without reading the Tribunal judgement we'll sadly never know the ins and outs of this particular case. However, employers should take heart - contrary to the impression given by the various reports on this story, it remains possible to effect a fair dismissal in cases of poor attendance providing of course, as has always been the case, that a fair process has been followed and appropriate investigations have been made  (including an assessment of whether there is an underlying medical condition which may constitute a disability).

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