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  • Dismissal for Long-Term Sickness Absence – The Correct Approach

    22nd April 2014

    In BS v Dundee City Council, the Scottish Court of Session considered the factors to be taken into account when deciding whether or not an employee's dismissal on the ground of ill health is fair.

    The 55-year-old appellant was employed by Dundee City Council in its Contract Services Department. He had 35 years' service with the Council prior to being absent from work on account of sickness from 9 September 2008 until his employment was terminated on 23 September 2009. Initially, he was suffering from 'nervous disability' and thereafter with depression and anxiety. He received remedial counselling on a weekly basis and had several meetings with the Council's occupational health adviser at which his condition was reviewed by a nurse. The reports as to his progress were all similar and gave little indication as to when he would be able to return to work. The appellant himself felt that he could not return to work while he was still taking antidepressants. The Council wrote advising that if he remained unfit for work beyond 14 September 2009, consideration would be given to ending his employment. His condition was again reviewed by the occupational health service, this time by a doctor who said that his health was improving and anticipated that he would be able to return to work within one to three months. He was not considered to be a candidate for ill-health retirement. The appellant himself said that he was doing everything possible to get back to work but expressed the view that he was not any better. The Council believed that there was 'no daylight at the end of the tunnel' as regards the prospect of his return to work and took the decision to dismiss him. The appellant's appeals against that decision were not upheld.

    The Employment Tribunal (ET) found that the dismissal was unfair, but this decision was overturned by the Employment Appeal Tribunal.

    In reaching its decision, the Court of Session gave guidance on the correct approach in such cases.

    When an employee has been absent from work for some time owing to sickness, it is first essential to consider whether the employer can reasonably be expected to wait longer. This question is critical and involves a balancing exercise taking into account all the relevant factors, such as the administrative costs involved, the size of the employer, the nature of the work etc. In this case, the ET had failed to address directly the question of whether, in all the circumstances of the case, any reasonable employer would have waited longer before dismissing the appellant.

    Secondly, there is a need to consult the employee and take his or her views into account, a factor which can operate in the employee's favour or to their detriment. In this case, the Court held that the ET did not give adequate weight to the appellant's own views about his ability to return to work.

    Thirdly, the employer must take steps to discover the employee's medical condition and likely prognosis. This does not require the pursuit of a detailed medical examination but making sure the correct question is asked and answered. In this case, the ET's finding that the Council had dismissed the appellant without first clarifying the true medical position overlooked the fact that the obligation on a reasonable employer is only to carry out such medical investigations as are sensible in all the circumstances. It should have considered whether, taking into account the medical evidence available and the appellant's own views, a reasonable employer would have reached the conclusion that his return to work in the foreseeable future was unlikely.

    As regards the relevance of an employee's length of service in cases of dismissal on the ground of ill health, the critical question is whether this and the manner in which the employee worked during that period gives any indication that the employee is likely to return to work as soon as possible. The ET had failed to adopt this approach.

    The case was remitted to the ET to consider these four issues afresh.

    Contact Rachel Fereday, Partner and Solicitor at Awdry Bailey and Douglas Solicitors on 01380 722311 or email, rachel.fereday@awdrys.co.uk  for advice on this tricky area of employment law.

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