Employers need to take a proactive consultative approach to long-term sickness
Deciding whether to dismiss an employee is a finely balanced and difficult decision, particularly where the reason is linked with ill-health. Thankfully, a recent Scottish Court of Session case, called BS v Dundee City Council, has provided some welcome clarity for employers who are unsure of how to tackle this delicate issue.
Facts
BS was dismissed on ill-health grounds by Dundee City Council in September 2009. His absence started in September 2008 and was caused by a foot injury. However, the reason for the absence changed after he was arrested in connection with an allegation made by a woman with whom he had been having an affair. The arrest triggered a nervous debility which spiralled into depression and anxiety, causing him to remain off work for 12 months.
The local authority met with him and then sent him to see an occupational health nurse a few times during his absence. The reports that came back, although vague, confirmed he was unfit for work. After a while the employer learned of the criminal allegation against the employee and began disciplinary proceedings. The criminal allegation was later dropped, and so were the disciplinary proceedings, but the process still caused BS to relapse with regard to his mental health.
By September 2009, the employer had lost patience with his continued absence so it obtained a report from an occupational health physician. The report indicated that he was making progress and would be fit to return to work (on a phased basis) within one to three months. Nevertheless, the employer concluded there was no reasonable prospect of him returning to work in the short term and he was dismissed. BS complained to the employment tribunal that he had been unfairly dismissed.
Tribunal
The employment tribunal held that the employer had been right to try to consult with BS about his health. However, it decided the quality of the consultation was poor. Its main criticism was that the employer, having received the physician’s report, had failed to clarify the true medical position regarding BS’ ability to return to work. The tribunal held no reasonable employer would have dismissed him after receiving that report, and no reasonable employer would have disregarded the advice contained in it.Unhappy with the tribunal’s finding of unfair dismissal, the employer appealed to the Employment Appeals Tribunal.
EAT and Court of Session
The EAT reversed the decision, finding that the tribunal had placed too much emphasis on the principles of procedural fairness. BS challenged the EAT’s decision and appealed to the Court of Session. Although the court stated the tribunal had placed too much weight on the employer’s failure to obtain further medical advice before dismissing BS, it preferred the tribunal’s decision to that of the EAT. The case has now been sent back to the employment tribunal to be reconsidered.
Comment
Although this case is not binding on tribunals in England and Wales, tribunals will certainly find it persuasive, and it provides a useful reminder to employers of the main issues to consider when deciding whether to dismiss an employee on ill health grounds.
These are 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.
An employee’s length of service, while relevant, is not conclusive when looking at these issues. 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. Employers in any doubt about what to do should take specialist legal advice. By taking a pro-active approach, employers can then avoid costly and time intensive litigation.
Victoria Clark is an associate at law firm Clarion
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