Clarification has been given on how employers should handle an employee dismissal following an extended period of absence due to ill-health.
In the case of BS v Dundee City Council, BS had been off sick for 272 days with stress and depression. During his absence, he was signed off sick by his GP and the occupational health assessment services for eight weeks at a time.
In September 2009, after meeting with BS to discuss his continued absence, during which he indicated that he did not feel he was getting any better, the council decided BS was unlikely to return to work for the foreseeable future and dismissed him on the grounds of capability.
BS appealed unsuccessfully and brought an unfair dismissal claim against his former employer. The Employment Tribunal ruled in favour of BS, basing its findings on the council not conducting a thorough investigation into his health, in particular, stating that the council should have obtained a further medical report about the prospect of BS returing to work before taking the decision to dismiss.
The tribunal also stated that the council had a duty to conduct a more thorough investigation due to BS’ 35 years continuous service.
On appeal, the case came before the Inner House of the Court of Session (the Scottish equivalent to the Court of Appeal), which stated “if an employee states they are not feeling any better and do not know when they can return to work then this will be a significant factor operating against them. Ascertain the medical position, but there is no need to pursue a detailed medical examination. The employer merely needs to obtain proper medical advice and ask the right questions”.
The Inner Court held that the Employment Tribunal had not approached the issue with the correct tests in mind. It stated that, in such cases, the critical question for employers is whether it can be expected to wait any longer befor taking the decision to dismiss an employee.
This will be a balancing exercise that involves consideration of: the availability of temporary cover; whether the employee has exhausted sick pay; the administrative and occupational health costs that might be incurred, and the size and resources of the employer.
The Inner Court also held that length of service was not relevant to the degree of investigation required. It is only relevant “to the extent that the manner in which an employee worked during that period of service yields inferences that indicate an employee is likely to return to work as soon as he can”.
Charlie Barnes, employment solicitor at Shoosmiths, said: “This case helpfully clarifies the correct test to apply to long-term ill health dismissals. The decision also suggests employers can take a medical report at face value in terms of the prognosis when considering dismissal on the grounds of ill-health but should balance the views of the expert against the views of the employee themselves.”