After-school club manager’s dismissal fair, says Employment Tribunal

Redmans Solicitors
September 20, 2013

An after-school club manager has lost her claim for unfair dismissal in the Employment Tribunal against her former employer, Fife Council.

Ms Nicola Gardiner worked for Fife Council as an after-school club manager for a number of schools within its authority. In 2010 she went on maternity leave but in October 2010, during her maternity leave, her father was diagnosed with mesothelioma and she found it difficult to cope with this. She was due to return to work in October 2011 but outlined to the Council that she was finding it difficult not only looking after her young child but also her father and was allowed unpaid time off to take her father to outpatient appointments to deal with his illness. However, she found it difficult to juggle her various responsibilities and was referred to Occupational Health to examine whether she was suffering from “stress relating to family illness”. The Occupational Health report found that she had indeed been suffering from this, that she was unfit to work and that there was no predicted date on which she may be fit for work.

After this Occupational Health report Ms Gardiner went off work sick until May 2012, when she was interviewed again by the Council relating to a potential return to work. By this time she had received her full salary during her sickness absence for a period of six months and had been moved to half-pay for a further six months. She informed the Council that she was still unable to work and was unable to rise from bed some mornings, let alone attend work. After this meeting she was referred to a further Occupational Health therapist in June and another report was commissioned. This report stated that there had been no change in her health and that a date for return to work could still not be predicted.

A capability hearing was held with Ms Gardiner in August and the Council stated that she had various options, which included redeployment or dismissal due to ill health. Ms Gardiner reserved her position but after the capability hearing was adjourned she was dismissed for ill health in September 2012. She subsequently brought an Employment Tribunal claim for unfair dismissal and this came before the Employment Tribunal earlier this year.

The Employment Tribunal rejected Ms Gardiner’s unfair dismissal claim, finding that the school had carried out a proper procedure and that they had made a decision which was within the reasonable range of responses in dismissing her. The Employment Tribunal made it clear that they sympathised with Ms Gardiner’s situation but equally determined that the Council had received reports which made it clear that there was no anticipated return date from her sickness absence and that the Council was entitled to take action because of that.

Chris Hadrill, an employment solicitor at Redmans, commented on the case: “Employers have a legal obligation to carry out the correct procedures and to make a reasonable decision to dismiss employees. The Employment Tribunal clearly felt in this instance that the school’s dismissal of Ms Gardiner did not breach these obligations.”

Redmans Solicitors are employment solicitors in Kingston, offering specialist services including services as unfair dismissal solicitors