Case update (2): Unfair dismissal – ill health

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

The Court of Session in BS v Dundee City Council has provided some guidance on this issue.  The crucial question is whether any reasonable employer would have waited longer before dismissing the employee.

Facts:  The employee was a carpenter with 35 years’ service. He was absent from work for over a year due to depression and anxiety. Dundee City Council sought regular medical reports from Occupational Health relating to his prognosis and likely return to work date.   The final report relied upon by Dundee City Council said that he would be likely to recover within one to three months, depending on when his GP issued a final certificate.  Dundee City Council dismissed the employee shortly after receiving this report.  The Council relied upon the fact that the employee’s GP had not issued a final certificate and that the employee himself had indicated that he did not think he was getting any better.

The employee brought a Tribunal claim for unfair dismissal, which was upheld.  The EAT then overturned the decision and found that the employee had not been unfairly dismissed.  The employee appealed to the Court of Session (the Scottish equivalent to the Court of Appeal).  The Court ruled that the Tribunal had neglected their job to assess whether the employer could reasonably have waited any longer.  The Court remitted the case to the Tribunal to properly consider the correct issues:

• The Court emphasized that the critical question is whether any reasonable employer would have waited longer before dismissing the employee and, if so, for how much longer. Relevant factors could include whether the employee has exhausted sick pay, the availability and cost of temporary staff, and the size of the employer.
• Whether the employee had been consulted with, whether their views had been taken into account and whether such views had been properly balanced against any medical professional’s opinion.
• Whether reasonable steps had been taken to discover the employee’s medical condition and likely prognosis by getting proper medical advice. It would not be necessary for the employer to pursue detailed medical examination, as the decision to dismiss is not a medical question, but a question to be answered in the light of the available medical advice.

The Court also pointed out that, although length of service is not automatically relevant, it can help assess whether the employee’s nature is such that s/he is likely to return to work as soon as s/he can.  This can be assessed with regards to length of service, the manner in which the service was performed during that period and previous attendance record.

Implications:  The Court of Session’s guidance set out above is a helpful tool in the balancing exercise that employers should carry out before dismissing on grounds of ill-health: weighing the nature of the employee’s illness and his prospects of returning to work against the employer’s organisational needs and, critically, whether it would be reasonable to wait longer.  The Court’s decision is also significant because the Court confirmed that length of service can be a relevant consideration.