In a perfect example of how not to handle high levels of sickness absence, a worker who was absent for 808 shifts over a 20-year career – costing the company an estimated £95,850 in sick pay – has won tribunal claims of unfair dismissal against his former employer.
The key issue here is, not that the absence levels were too low to consider dismissal, but the fact that the Company failed to follow a proper process at all.
Charlie Wood, Associate, discusses the case of Jaguar Land Rover and Mr Rumbold and outlines how companies can avoid any unfair dismissal claims.
Case Study: Jaguar Land Rover and Mr Rumbold
The Birmingham employment tribunal found that Jaguar Land Rover (JLR) unfairly dismissed Mr Rumbold, who had worked for the manufacturer from February 1999 until his dismissal on 7 December 2018. Due to the Company’s failure to follow their own procedures, the tribunal ruled that by the time JLR decided to end Rumbold’s employment, dismissal was “not a sanction which fell within the range of reasonable responses available to them”.
The tribunal heard there were a variety of reasons for Rumbold’s absences: some related to injuries at work, as well as an occasion of alleged assault against him in 2014, and other general health-related matters. But, the tribunal found that until 2018, it did not appear that JLR subjected Rumbold to any formal measures under its absence management procedures and it seemed that Rumbold was unaware that his absence was a problem until 2018. However, one would argue how an employee could not be aware that missing 808 shifts would at some point cause an issue.
During a meeting, the Claimant’s manager told the Claimant that he had the “worst absence record I have ever seen”. Shortly afterwards JLR made the decision to terminate the Claimant’s employment on the grounds of conduct and capability. The Claimant appealed the decision twice, but both appeals were unsuccessful.
The Claimant brought claims of disability discrimination, age discrimination, unfair dismissal and unpaid wages in the employment tribunal (ET)– however the claims of age discrimination and unpaid wages were later withdrawn.
The Tribunal stated, “The respondent simply saw an opportunity to consider the claimant’s employment and did not consider how the AMP (absence management policy) should be used in relation to the claimant, given that he had not been taken through it in accordance with its processes.”
The ET upheld the Claimant’s complaints of unfair dismissal and failure to make reasonable adjustments but dismissed other claims for disability discrimination. The ET ruled that JLR’s failure to follow its own procedures was wholly unreasonable and unfair for a company of this size.
Dismissing an Employee
This case is an important reminder to always follow thorough and fair processes whenever you are considering dismissing an employee in such circumstances. If you have policies and procedures in place, and you fail to follow them, this will most likely result in a Tribunal finding any subsequent dismissal unfair – and potential discriminatory.
Furthermore, it is important that issues like this aren’t allowed to build up. At the first point where absences became too high they should have been dealt with. Leaving them for years and then trying to proceed straight to dismissal was always going to be risky. So always remember to deal with issues promptly and fairly.
However, it is interesting to note that that the tribunal said any award granted to Rumbold is subject to a deduction to the compensatory award and Rumbold’s contributory fault.