Employer’s failure to obtain updated occupational health report renders dismissal unfair

In Kayongo v London Underground Ltd, the Employment Tribunal (ET) found that an employer acted unfairly by dismissing a long-term absent employee without first obtaining an up-to-date occupational health (OH) assessment.

Background

Ms Kayongo began working as a customer service manager at London Underground in 2004. In 2020, after an incident at Marble Arch Station, she became ill and was absent from work for about a year. Later in 2021, she was assigned to a permanent post in the Marylebone area, but before starting, she requested emergency leave to care for her daughter. Her absence continued due to anxiety, work-related stress, and an ADHD diagnosis.

A referral to OH in 2022 determined she was fit to return to work, yet over the next two years, she had repeated absences.

In total, she was away from work for approximately 135 weeks – over two and a half years. London Underground’s attendance policy allowed managers to dismiss employees who were unable to fulfil their roles for health reasons after 39 weeks of absence. As a result, Ms Kayongo was dismissed in March 2024.

Ms Kayongo appealed her dismissal. The appeal officer reviewed her last OH report from 2023, her attendance record, and considered whether alternative duties or redeployment had been explored. He determined redeployment was not feasible given her prolonged and recurrent absences and lack of engagement in return-to-work discussions, resulting in the termination of her employment being upheld.

Decision

The ET held that London Underground had legitimate grounds for concern regarding Ms Kayongo’s repeated absences. It was also found that they genuinely believed she was no longer able to fulfil her responsibilities.

Nevertheless, the claim for ordinary unfair dismissal and aspects of the disability discrimination claim were upheld and successful. The appeal officer relied on an OH report from 2023 recommending Ms Kayongo’s return to work, despite subsequent fit notes indicating she was unfit due to anxiety.

The ET concluded that the appeal officer should have deferred the decision and obtained updated OH evidence on Ms Kayongo’s prognosis and option of redeployment, before upholding the dismissal.

What does this mean for employers?

This case is a helpful reminder that, when managing long-term sickness absence, employers must ensure that the medical and OH evidence on which they rely is up to date when making a decision to dismiss. Even where an employee has been absent for a very significant period, a failure to obtain current medical evidence can render an otherwise reasonable dismissal unfair.

In addition to ensuring all medical evidence is up to date, employers should:

• consider any new information or fit notes;
• explore alternatives such as redeployment or adjusted duties;
• keep thorough records of actions taken; and
• remain aware of their obligations regarding disabilities and duty to make reasonable adjustments under the Equality Act 2010.

If you would like advice on managing long-term sickness absence or capability dismissals, please get in touch with a member of the Gordons Employment Team.