Case study

Dismissed while off sick

...Ms S, who suffered from depression, was warned to improve her attendance or face disciplinary action...

Office worker packing a box
  • Date: 11 September 2023


Sales consultant Ms S had a history of stress and depression and took more than 60 sick days in her first year with the company. She was threatened with disciplinary action if her attendance did not improve and was eventually dismissed while on sick leave.

The tribunal ruled that the employer’s actions were ‘motivated’ by the employee’s mental health, which was classed as a disability under the Equality Act, and that this made her an ‘unattractive employee’ in the sales director’s eyes.

She was awarded just over £36,000 for injury to feelings and loss of earnings.


Ms S worked for her employer for a total of two years. During her first year she took just over 60 days sick leave and also had issues with timekeeping.

She suffered with anxiety, severe mood swings, emotional distress, loss of concentration and sleep loss. In response, her employer assigned her new duties, including answering customer service calls. Two months later she was given further new duties, which involved travelling to construction sites.

This latest change caused Ms S further stress and led to a worsening of her symptoms. At a meeting with her manager, Ms S explained that she felt overwhelmed, unhappy and her mental health was poor.

No support was provided, and instead Ms S received a letter warning her that if her attendance did not improve she could face formal disciplinary action.

Two months after this, Ms S asked to temporarily reduce her working hours but this was denied.

Ms S went off sick again due to stress and depression. She was tearful and anxious during a welfare meeting with her manager.

Finally, Ms S was asked to attend a disciplinary hearing but she informed her employer she was too unwell to do so, submitting a fit note as evidence.

A disciplinary meeting was held in her absence and she was dismissed with effect from the day following the expiry of her fit note.

Ms S raised a grievance, which the employer dismissed, and lodged an appeal against her dismissal, which was also dismissed.


Ms S took her case to an employment tribunal which found that she had been discriminated against on grounds arising out of her disability. It also found the employer discriminated against her by failing to make reasonable adjustments, under section 20 of the Equality Act 2010.

She was awarded £36,735 for injury to feelings and loss of earnings.


  • Employers must be aware of the definition of ‘disability’ under the Equality Act 2010.
  • An employee who is classed as disabled in employment terms is entitled to a wealth of protection and added employment rights, including the right to have reasonable adjustments made to the workplace.
  • MDDUS members can login to their online account to find a range of employment law resources, including factsheets on long term absence, grievance and disciplinary, plus many more.

This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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