Worker absent for 800 shifts during career was unfairly dismissed, tribunal finds

Judge rules car manufacturer did not follow its own absence policy when deciding to terminate staff member

A worker who was absent for 808 shifts over a 20-year career – costing the firm an estimated £95,850 in sick pay – has won tribunal claims of unfair dismissal against his former employer.

The Birmingham employment tribunal found Jaguar Land Rover (JLR) unfairly dismissed Mr V Rumbold, who had worked in various car assembly roles for the manufacturer from February 1999 until his dismissal on 7 December 2018, as the firm had not followed its own absence management procedures (AMP).

Because of its failure to follow these 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”.

Rumbold also won claims of discrimination arising from JLR’s failure to make reasonable adjustments, but claims of disability discrimination were dismissed.

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 AMP, and it seemed that Rumbold was unaware that his absence was a problem until 2018.

In early 2018, Rumbold developed problems with his hip and was diagnosed with avascular necrosis disease, which caused his hip to deteriorate, resulting in chronic pain. Because of his hip pain, Rumbold was absent from work from 12 March until 13 August 2018.

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He underwent a return to work interview with his supervisor on 13 August, which included a review of Rumbold’s health at the time, and a discussion of what support could be given. Rumbold’s manager mentioned that this was “purely a return to work interview”.

During this return to work, Rumbold did not go back to his contractual car assembly role. Instead, in an effort to find a suitable alternative that would allow Rumbold to continue working at JLR with his condition, he went through a number of job trials under JLR’s restricted worker procedure. However, none of these roles were suitable.

The tribunal heard that in November, JLR launched an investigation into Rumbold's general sickness absence levels following him missing work for a medical appointment after being denied holiday for that day. On 7 December, Rumbold attended a performance review with Mr J Carter, a manager at JLR, during which Carter described Rumbold’s performance as the “worst absence record I have ever seen”.

Carter made the decision to terminate Rumbold’s employment on the grounds of conduct and capability. He added: “The business is in a bad condition at the moment and the financial situation, diesel scares, Brexit which have caused a great volume loss to the plant and all plants… Every person and every penny makes a difference.”

Rumbold appealed the decision twice, but both appeals were unsuccessful.

Rumbold brought claims of disability discrimination, age discrimination, unfair dismissal and unpaid wages to the employment tribunal on 9 April 2019. The claims of age discrimination and unpaid wages were later withdrawn.

Judge Johnson ruled JLR had unfairly dismissed Rumbold after it failed to follow through correctly with its internal AMP. He said the tribunal had not been aware of Rumbold being previously subject to any sanction under the AMP, and it appeared the “general frustration by management with the claimant’s perceived attitude to work meant that they were determined to proceed straight to an employment review.”

“Unfortunately, no good reason was offered throughout the process which justified why it was reasonable to approach the claimant’s case in that way,” Johnson said. “The respondent simply saw an opportunity to consider the claimant’s employment and did not consider how the AMP should be used in relation to the claimant, given that he had not been taken through it in accordance with its processes.”

However, the tribunal said any award granted to Rumbold is subject to a deduction to the compensatory award and Rumbolt's contributory fault. 

Paul Holcroft, managing director of Croner, said it could be frustrating for employers when an employee takes multiple periods of time off work, especially when it is unclear how their ongoing condition is leading to this happening. But, he said, this case is a classic example of how important it is to approach this situation carefully. 

“Care should be taken to ascertain the reason behind the absence and take this into account before making any decision regarding their continued employment,” Holcroft said. “Only when it has been established why shifts are being missed, and all options explored to mitigate this, should dismissals be considered.”

JLR has been contacted for comment. Rumbold could not be contacted for comment.