In a dismissal for capability following sickness absence, the Court of Session has stated in BS v Dundee City Council that the fairness and reasonableness of the employer’s decision, depends upon consideration of three issues:
- Whether the employer could be expected to wait any longer for the employee to return from their absence – including considering the costs of continued employment (is sick pay continuing or exhausted, costs of further medical referrals, availability and cost of temporary staff to cover the absence) and whether the size of the organisation means it can be expected to absorb these costs; balanced against the unsatisfactory position of very lengthy sickness absence.
- Consultation with the employee – of relevance are the giving of advance notification that dismissal is being considered; listening to the employee’s opinion of their health and likelihood/time for return to work; and balancing the employee’s views with those of medical professionals.
- Reasonable investigation of the employee’s medical condition and prognosis – obtaining proper medical advice, but once the correct questions have been asked and answered by medical professionals, the decision to dismiss can be reasonably based upon this evidence.
This will be a balancing exercise with the central question in each case being whether a reasonable employer would have waited longer, and whether the decision to dismiss was within the range of reasonable responses open to such an employer. The case was remitted to a freshly constituted Employment Tribunal to reconsider these issues.
In the case the employee in question had 35 years of service, however, the Court noted that service in an ill health dismissal will not automatically be relevant – although service (and conduct during it) may indicate that an employee is likely to want to return to work as quickly as possible.
Ann Marie Burke
Seconded Paralegal, Carillion Advice Services