If the medical evidence about you conflicts, your employer has to check again before deciding.
“Unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... and disability discrimination upheld; employer skipped a required occupational healthAn independent medical service that employers use to assess how a health condition is affecting your ability to work. A referral to occupational health is not a step toward dismissal, but the report p... referral.”
If your employer has conflicting medical evidence about your fitness for work, it has to resolve that conflict with occupational health before deciding your future, not just act on whichever version suits it.
- Check whether your employer's own attendance or capability policy commits it to referring you to occupational health when the medical picture is unclear, and hold them to it in writing.
- Ask for a copy of every occupational health report and fit note used in your case, so you can see for yourself whether they actually agree with each other.
- If you're dismissed while the medical evidence about you is still contested or out of date, get advice quickly, particularly if you're disabled, as you may have both an unfair dismissal and a discrimination claim.
The situation
A customer service manager on London Underground had been off work for a long period with anxiety, and was later also diagnosed with ADHD. Her manager was considering dismissing her for capabilityOne of the potentially fair reasons an employer can use to dismiss someone, covering situations where you are unable to do your job to the required standard, including through ill health. A fair capab... because of how long she had been off. The medical picture was mixed: an earlier occupational health report said she was fit for redeploymentMoving you into a different role with your employer instead of dismissing you, usually considered when your original job is no longer possible because of ill health or disability. It should be offered... to a different role, while a more recent GP fit noteA certificate issued by a GP or other clinician confirming that you are not fit for work, or that you may be fit for work with certain adjustments. Your employer can use it as medical evidence in a ca... suggested she was not fit for any work at all. Instead of going back to occupational health to resolve that conflict, which the company's own attendance policy required, her manager dismissed her, and her appeal upheld that decision without addressing the gap.
What the tribunal found
She won on two grounds. The dismissal was unfair under section 98 of the Employment Rights Act 1996The primary piece of legislation setting out employees rights in the UK, including the right not to be unfairly dismissed, the right to a written statement of employment particulars, and rights relati.... It was also discrimination arising from disabilityA type of disability discrimination under section 15 of the Equality Act 2010, where you're treated unfavourably because of something connected to your disability, like time off or how a condition aff... under section 15 of the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a.... The employer had two conflicting pieces of medical evidence in front of it, and its own attendance policy said that when the picture was unclear, the case should go back to occupational health for a definitive answer before anyone decided anything. That never happened, at dismissal or at appeal. The tribunal held that scepticism about what a further report might say was not a good enough reason to skip a step the employer's own process required. Her other discrimination claims failed, including direct disability discrimination and a failure to make reasonable adjustmentsChanges an employer must make under the Equality Act 2010 for a disabled employee, where without them the employee would be at a substantial disadvantage compared to non-disabled colleagues. What coun.... The tribunal accepted she would have been dismissed regardless of her ADHD. It also found she had never identified a specific alternative role she should have been given.
Kayongo v London Underground Ltd and others. Case 3201548/2024. Employment Tribunal (East London Hearing Centre). 24 November 2025.