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Sickness absence dismissals

02 December 2011 #Employment


The EAT in Dundee City Council v Sharp UKEATS/0009/11 has held that an employee’s length of service is not relevant to the reasonableness of an employer’s investigation in determining whether an employee should be dismissed for capability.

In this case, the employee, Mr Sharp, had worked for his employer, Dundee City Council, for 35 years before his dismissal.  His employer dismissed him for reasons relating to his capability as he had been absent from work due to sickness and was not fit to return to work.

The employer had conducted an investigation into Mr Sharp’s sickness and believed that he was not going to return to work for the short or foreseeable future.  Mr Sharp himself told his employer that he was not fit for work.  At the time of dismissal, Mr Sharp had been absent from work for 12 months and had exhausted his sick pay.

The Tribunal held that Mr Sharp had been unfairly dismissed because his employer had failed to make further medical investigation into his sickness and had failed to take into account his length of service.

The Employment Appeal Tribunal (EAT) however overturned the Tribunal’s decision.  The EAT commented that:

“In cases where dismissal follows a period of long term ill health, it will usually be the case that at the time of the decision to dismiss, there is no real issue as to whether or not the claimant is unfit as at that date.  Rather, the issue becomes whether or not it is reasonable for the employer to decide, in effect, that matters have gone on long enough and the stage has been reached at which he can reasonably decide that the time has come to take the employee ‘off his books’.”

The EAT held that an employer does not need to take into account the length of an employee’s service in order to carry out a reasonable investigation.  Further, the EAT held that the Tribunal had imposed a higher duty of investigation than the law required.  The EAT asserted that an employer needs to carry out a reasonable investigation into the state of the employee’s health, consult with the employee and then reach a reasonable view on the issue of whether or not it is reasonable for them to wait longer before deciding whether or not to dismiss.

This is a helpful case to employers and clarifies what steps the employer must take to carry out a reasonable investigation.  The fact that an employer is handling an ill health dismissal does not mean that the standard of a reasonable investigation is higher than in other dismissals.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
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