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Fairness of dismissal for sickness absence

Posted by TonyBrownEmploymentSolicitor on December 9, 2013

When is it reasonable to dismiss an employee who has been absent from work due to ill-health for an extended period of time?  

According to this next decision, the key question in such cases is whether any reasonable employer would have waited longer before dismissing the employee, focussing on whether the employee is likely to return to work in the foreseeable future.

The employee in this case had 25 years’ service. After being absent from work for more than a year due to depression and anxiety, the latest medical report obtained by the employer stated that the employee was still unfit to work but that he was making progress and would be fit to return to work within one to three months. His employer dismissed him shortly after receiving this report, relying on the fact that the employee himself had indicated that he did not think he was getting any better.

An employment tribunal upheld the employee’s complaint that he had been unfairly dismissed, saying that no reasonable employer would have dismissed the employee after receiving that report, and no reasonable employer would have disregarded the advice contained in it.

The appeal court stated the tribunal had placed too much weight on the employer’s failure to obtain further medical advice before dismissing the employee and sent the case back to the tribunal to be reconsidered. The court issued the following statement:

"First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. We would emphasize, however, that this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee's medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered"

Comment

The ruling stressed the importance of the “balancing exercise” employers have to address when deciding whether to dismiss on grounds of capability.

Relevant considerations are likely to include whether:

  • a reasonable employer would wait any longer to dismiss, taking into consideration any outstanding entitlement to sick pay, the availability of temporary staff and the size of the business;
  • sufficient and meaningful consultation with the employee has taken place, balanced against medical evidence;
  • reasonable steps have been taken to discover the prognosis for the employee’s illness. Employers are not required to obtain a detailed, specialist medical report, but they have to ensure the right questions are asked and answered;
  • Length of service, while relevant, is not conclusive. However, tribunals may think employees who have served the employer loyally and performed to a high standard are more likely to return to work as soon as they are able.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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