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MOD engineer wins unfair dismissal claim after he ‘suspended’ himself

Makbool Javaid, Partner - Simons Muirhead Burton

In the case of Ian Drury v Ministry of Defence Mr Drury was employed as a mechanical engineer. Mr Drury was generally held in high regard by his colleagues and his line manager. He had been experiencing back pain which resulted in him being absent from work from 19 March 2019 to 1 April 2019 and again from 15 April 2019 to 4 June 2019.

On 16 April 2019, Mr Drury’s line manager wrote to Occupational Health regarding Mr Drury’s absences. The referral stated that Mr Drury had not turned up for work on 16 April 2019, his line manager had spoken to him for about 20 minutes concerning his problems and became increasingly concerned over some of the statements Mr Drury was making. His line manager advised him to stay at home on sick leave. His line manger later spoke to other colleagues who confirmed that Mr Drury had been acting out of character, becoming increasingly agitated and upset at work.

OH wrote to Mr Drury’s line manager on 5 June 2019 and recommended a phased return to work and that he gradually resume manual tasks; however, on 10 June 2019, Mr Drury informed his line manager that he was ‘placing himself on leave and would not attend work’.

On 27 June 2019, OH provided a report following a phone call with Mr Drury which stated that Mr Drury had suspended himself due to historical management/employee relationship problems not due to medical reasons.

On 23 July 2019, Mr Drury sent an email to his line manager that he would be off sick with depression and would not be returning to work with his ongoing issues. Mr Drury’s line manager asked him to provide a fit to work note from his GP but Mr Drury did not provide this.

Mr Drury was invited to a disciplinary hearing on 31 January 2020 and was given the option to ‘present his case’ via a video which he accepted. He was accused of gross misconduct due to his unauthorised absences from work and ‘refusal to obey a reasonable management instruction’ in that he had failed previously to provide sick notes.

The hearing took place and Mr Drury was dismissed without notice or payment in lieu of notice for gross misconduct for failing to follow instructions and being absent without leave or a reasonable explanation as to his absences. Mr Drury submitted an appeal which was not upheld.

Mr Drury brought a claim for unfair dismissal and wrongful dismissal.

The Tribunal held that Mr Drury’s dismissal was not based on reasonable grounds. The allegations of misconduct were based on suggestions that Mr Drury unjustifiably refused to attend work without any motivation or reasoning. Therefore, the MOD had unfairly dismissed Mr Drury. The Tribunal felt that the MOD could have done more to avoid dismissal.

The Tribunal felt that the MOD did not consider Mr Drury’s ‘sudden display of mental health issues’ before deciding to fire Mr Drury for gross misconduct after 37 years of service. Had the MOD considered Mr Drury’s ‘mental health issues properly… there is a substantial chance they would have kept him as an employee’.

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