In Mr A. Daniel v Mr C. Spence, Mrs M. Spence and Mr A. Spence T/A G.E. Spence and Sons the claimant originally started working for Mr A. Spence’s grandfather on 01 June 1981. The claimant was a farm worker, and the respondent operated a mixed farm. The claimant lived in the same small village as the respondent, and they knew each other well. Mr A. Spence ran the farm with the assistance of the claimant.
On 07 January 2021 the claimant suffered an accident at work when he slipped and fell on ice. He continued to work whilst in pain, taking painkillers but his condition worsened, and he was admitted to hospital on 04 February 2021 for spinal surgery.
Despite the spinal surgery the claimant was left with a physical impairment. The claimant informed Mr C. Spence of his hospitalisation on 05 February 2021 and that he would not be returning to work following the expiration of his holiday on 08 February 2021. The claimant was to supply fit notes regularly to the respondent, up to 16 April 2022, which gave the reason for absence as being “Primary decompression of the lumbar spine”.
On 01 April 2021 Mr C. Spence wrote to the claimant asking for sight or his medical records to determine whether he could continue to undertake agricultural work. The claimant refused, as he considered it was too early to consider a return to work as he was awaiting physiotherapy.
The tribunal noted that CS asked on a “number of occasions” for consent to view the medical records, all of which were refused. Daniel told the tribunal he believed this to be harassment and an attempt to “engineer his dismissal”, but the tribunal determined CS was “genuinely seeking” information on whether he was likely to return to work. At this point, AS was running the farm alone.
On 17 September, CS again asked via letter to see Daniel’s medical records, stating he was “anxious” to know when he could return to work, how he could be supported and if any reasonable adjustments could be made. The letter also said if the records were not provided a “meeting would be held to make a decision on the matter of employability”.
The tribunal noted that Daniel “reasonably concluded” that they were actively considering his termination.
On 22 September, Daniel “indicated” he would be prepared to attend a medical consultation – with a view to obtaining an occupational health report at the cost of the farm – and that he planned to return to work. However, he also said his father had just died, and asked for “this week” to recover from his loss.
The tribunal said although at this point Daniel was content to be examined so CS could “obtain a prognosis on his condition, the matter was not further pursued”.
Daniel continued to send fit notes until 5 April 2022, when he received a P45 in the post with a backdated termination date of 17 September 2021. At this point, Daniel was paid his outstanding holiday pay.
Employment judge TR Smith said the “hallmark of a fair capability dismissal is obtaining up-to-date medical advice, a meeting with the employee and an appeal process”.
“None of this occurred,” they added.
Smith also said that Daniel had made it clear he was happy to be evaluated by an occupational health professional, but that Spence and Sons had not followed the matter and had not scheduled a meeting with him before his termination. This then rendered the dismissal unfair.
Daniel was awarded £26,811.12.
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