A Fife Council after-school club manager lost her job because of her long-term absence through her father’s illness and death from asbestos exposure.
An employment tribunal has found that Nicola Gardiner, of Kennoway Burns, Kennoway, was not unfairly dismissed.
Mrs Gardiner was a senior child play practitioner who jointly managed a cluster of after-school care clubs. While she was off on maternity leave in October 2010, her father was diagnosed with mesothelioma. She returned to work in October 2011 but found it difficult to look after her father and a young child and was allowed unpaid time off to take her father to outpatient appointments.
She found it impossible to stay at work and was referred to an occupational health worker for “stress relating to family illness.” She was examined and the resulting report said she remained unfit, a timeframe for her return could not be predicted and there was no additional support the occupational health service could offer at that time.
Her father died in March 2012 but Mrs Gardiner remained off work and became subject to the council’s attendance management procedure.
At a meeting on May 2012, Mrs Gardiner said she was having difficulty getting up in the morning, far less leaving the house. She was receiving support from Maggie’s Centre. She rejected a career break because she would lose her entitlement to sick pay. By that time she had received full salary for six months of absence and had moved to half pay, which she would stay on for another six months.
A further occupational health report in June said there was no change in her situation and at a capability hearing in August, the council outlined the options. These included redeployment or dismissal due to ill health and, after an adjournment, the latter option was imposed.
Tribunal judge Ian McFatridge said the medical advice was clear that Mrs Gardiner was unfit for work and it was impossible to predict when she would return. Fife Council carried out its attendance management policy and a stage was reached where it could no longer tolerate her absence.
There was not an obligation to warn Mrs Gardiner when she was nursing her dying father that her continued absence might result in her dismissal.
The tribunal had considerable sympathy for Mrs Gardiner’s situation but were satisfied the council had complied with employment law and dismissal was fair.