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Dismissal due to long-term sickness absence
[ch 7: pages 212-215]The fact that an employee’s absence is due to an accident, having been a victim of a crime, or even a work-related injury does not mean they cannot be fairly dismissed due to sickness absence. However, the employer should take into account the cause of any illness or injury when deciding whether to dismiss (Frewin v Consignia EAT/0981/02).
If the illness or injury is work-related the employer should not dismiss without first investigating all alternative ways of avoiding the dismissal, described by the Court of Appeal as “going the extra mile” (McAdie v Royal Bank of Scotland [2007] EWCA Civ. 806).
Where an employee was entitled to an enhanced early retirement pension on grounds of ill-health, the employer should have considered this first as an alternative to dismissal (First West Yorkshire Ltd t/a First Leeds v Haigh [2008] IRLR 182).
The steps an employer must take before dismissal for long-term sickness absence depend on individual circumstances, but normally include:
• investigating the reasons for the absence. This will nearly always include seeking expert medical guidance with the employee’s consent, looking at the employee’s condition and prognosis, the likelihood of a successful return and any steps the employer could reasonably take to support that return;
• consulting the employee;
• looking at alternative work; and
• warning the employee clearly that continued or further absence may result in dismissal.
Dismissing an employee without consultation is likely to be unfair (East Lindsey District Council v Daubney [1977] IRLR 181).
As with any other dismissal, a dismissal for sickness or injury must be reasonable in all the circumstances (Section 98 (4) ERA 96). Tribunals take into account factors like:
• the size and resources of the employer;
• difficulties arranging for short-term replacements;
• importance of the role;
• length of service;
• previous attendance record; and
• the nature of the illness.
The key question is always: “how long would a reasonable employer in this situation have waited before deciding to dismiss” (Spencer v Paragon Wallpapers [1977] ICR 301).
Where there is a sickness absence procedure, the employer should follow it. Unreasonable failure to do this can make the dismissal unfair, even if the procedure is not contractual. It may also result in breach of the duty of mutual trust and confidence (see page 69).
An employee can be dismissed even if they have a current medical certificate and are still receiving sick pay.
As explained above, employers must take reasonable steps to discover the true medical position before dismissing. The obligation is to carry out “such medical investigations as are sensible in all the circumstances” (BS v Dundee City Council [2013] CSIH 91). This usually involves at least consulting the member’s GP. In future, the employer will also have access to any report and advice generated via the Fit for Work Service (see page 207).
Employees are not obliged to keep their employer informed as to their recovery prospects (Mitchell v Arkwood Plastics [1993] ICR 471). However an employee’s own views as to when they are likely to be able to return to work will be highly relevant when it comes to deciding how much longer a reasonable employer would wait before dismissing.
It is much harder to dismiss fairly for ill-health where the member has kept the employer updated and is positive about their prospects for a successful return to work in the foreseeable future, as the following case illustrates:
An employee with 35 years’ service was off work for a year with anxiety and depression after a marriage break up. 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 express purpose of deciding whether the employment should continue, that he did not know when he would be well enough to return.
The Scottish Court of Sessions said that the employer was not obliged to seek further medical evidence to explain the contrast between the employee’s negative assessment and the more optimistic outlook of the occupational health doctor. Instead, a reasonable employer in this situation could dismiss fairly.
BS v Dundee City Council [2013] CSIH 91
It is sensible to cooperate with an employer’s reasonable attempts to discover the medical position. An unreasonable failure to cooperate, for example, refusing to attend a medical examination by a company doctor for no good reason, can result in lost sick pay and may enable the employer to dismiss fairly, relying just on the information already available. Depending on the contract wording, refusing to attend a medical examination can also be a breach of contract.
A claim for unfair dismissal due to sickness or sickness absence requires at least two years’ continuous employment. See Chapter 10. No service is needed for a claim of disability discrimination.
Checklist — Defending a member facing dismissal for long-term ill-health
Key issues include:
• Is the member now better? If not, what is their prognosis and when might they be fit for work? Encourage the member to send a strong positive message that they want to return to work once fit, and to be proactive in suggesting possible return dates and any adjustments to make this possible;
• Is it too early to be considering dismissal?
• Has the employer carried out an appropriate medical investigation, including asking for a report from the member’s GP or asking the member to visit Occupational Health? If yes, has the employer followed all the medical advice? What about the recommendations of the Fit for Work Service (see page 207)?
• What does the member’s past attendance record tell you about the likelihood of a successful return? Can you use this to the member’s advantage?
• If the member is fit for some work, has the employer thought properly about possibilities such as a staggered return, alternative duties, temporarily reduced hours, or working from home?
• What evidence is there of a real impact caused by the absence on the employer’s ability to function (as opposed to irritation on the part of colleagues)?
• What about voluntary severance or an early retirement package?
• Is the absence being prolonged due to fear of bullying or harassment? Is redeployment a possibility?
• is the member being discriminated against, for example, due to disability or age? Are there reasonable adjustments that have not yet been made (see page 166)? Have they been properly costed? Has the employer considered Access to Work?
• Is the employer at all to blame for the member’s medical condition? If so, they should be trying even harder than usual to get the member back to work (see page 213);
• Is the contractual sick pay exhausted? An employer can dismiss fairly even though sick pay is not exhausted. Even so, this is still an argument worth making.