Unfair dismissal
[ch 4: pages 51-52]An employee can take their case to an employment tribunal if they think they’ve been unfairly dismissed, which can happen even if they have a current medical certificate and are still receiving sick pay.
An employee of Dundee City Council was dismissed in September 2009, having been signed off work (initially with “nervous debility” and from September 2008 with depression and anxiety). He was dismissed even though an occupational health report suggested he could be fit to return within one to three months.
One significant reason for the dismissal was that the employee told his employer, at a meeting called for the specific purpose of deciding whether the employment should continue, that he could not say when he would be well enough to return.
The Scottish Court of Session said that the employer was not obliged to seek further medical evidence to explain the contrast between the employee’s negative view of his prospects and the more optimistic outlook of the occupational health doctor; a reasonable employer in this situation could dismiss fairly.
BS v Dundee City Council [2013] CSIH 91