(And how to avoid ending up at Tribunal)

If there’s one area, I see employers consistently get wrong, it’s long-term sickness. Not because organisations don’t care but because decisions are often made too quickly, without the right medical input, or based on process rather than evidence. That’s exactly where Tribunal risk starts to build.

Recent case law hasn’t introduced new principles. What it has done is reinforce something important: it’s not the absence that creates liability, it’s how you handle it.

Here are the five mistakes I see time and time again.

1. Making decisions without proper medical evidence

This is still one of the most common issues. In East Lindsey District Council v Daubney, the court made it clear that employers must take reasonable steps to understand the medical position before making any dismissal decision.

Yet I still see cases where decisions are made based on assumptions or outdated fit notes without proper Occupational Health input.

What should happen instead:

You need clear, up-to-date medical evidence that answers the key questions—prognosis, impact, and what adjustments might support a return. Without that, any decision is on shaky ground.

2. Focusing on how long someone has been off, rather than whether they can return

Length of absence is often treated as the deciding factor. Legally, it isn’t.

In BS v Dundee City Council, the dismissal was found to be unfair because the employer didn’t properly consider whether the employee was likely to return within a reasonable timeframe.

What should happen instead:

The focus should be on the likelihood of return, not just the time already off. That means reviewing medical advice properly and having an open, informed conversation with the employee.

3. Failing to revisit decisions when the situation changes

Long-term sickness isn’t static. People improve, conditions change, and new medical evidence emerges. In O’Brien v Bolton St Catherine’s Academy, the employer pressed ahead with dismissal despite evidence that the employee’s condition was improving.

What should happen instead:

Decisions need to be reviewed as new information comes in. Relying on an earlier position without reassessment is where employers get caught out.

4. Treating Occupational Health as a tick-box exercise

Occupational Health is there to inform decisions—not make them. In Gallop v Newport City Council, the employer relied entirely on an OH report which said the employee was not disabled. The court made it clear that this was not enough.

What should happen instead:

You need to apply your own judgement under the Equality Act. Occupational Health provides the medical opinion, but the legal responsibility sits with the employer.

5. Moving to dismissal before properly considering adjustments

This is where risk escalates quickly. In cases like McCulloch v ICI, the issue wasn’t just the dismissal, it was the lack of meaningful exploration of adjustments beforehand.

Too often, adjustments are either superficial or considered too late in the process.

What should happen instead:

Adjustments should be practical, tailored, and explored early—whether that’s phased returns, amended duties, or changes to working patterns.

What this means in practice

Across all of these cases, the same pattern appears:

• Decisions are made too early 
• Medical evidence isn’t properly understood 
• Adjustments aren’t fully explored 
• Process is followed, but judgment is missing 

And that’s the key point. You can follow a process and still lose at Tribunal if your decisions aren’t reasonable, informed, and evidence-based.

The shift employers need to make, Long-term sickness isn’t just an HR issue.

It sits at the intersection of:

• Medical evidence 
• Legal duty 
• Commercial risk 

When those three aren’t aligned, that’s when problems arise.

The organisations that get this right take a different approach. They slow the process down where needed, bring in the right expertise, and make decisions they can stand behind—not just internally, but if challenged externally.

Final thought

Most Tribunal cases I see could have been avoided. Not with more policy, but with better decisions at the right time. That means asking a slightly different question.

Not: “How long has this person been off?” But: “Do we actually understand what’s going on here—and have we responded properly?”