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Dismissal
[ch 5: pages 62-63]Sickness absence can lead to dismissal and may give grounds for a claim of unfair dismissal, but for that to happen the worker must first have been dismissed:
Mr Blakemore worked at Mr Clutch Auto Centres but was off sick with anxiety and depression. While off work, he went on site to retrieve some tools he believed were his. His manager didn’t agree and wouldn’t let him take them. They had an argument and two weeks later, he was sent a P45 followed by a letter from his employer claiming that he had resigned following the tools incident.
Blakemore issued a tribunal claim for unfair and wrongful dismissal. The tribunal ruled that he had not resigned but neither had he been dismissed, and as a result he was still an employee at the date of the tribunal hearing.
However the EAT overturned that ruling. Where a claimant has launched tribunal proceedings claiming unfair or wrongful dismissal alleging that the employment has ended, it is no longer open to that claimant to argue that they are still employed; and as Blakemore was now working on a self-employed basis that was inconsistent with any suggestion that he still worked for his old employer.
Mr Clutch Auto Centres v Blakemore [2014] UKEAT/0509/13/LA
An employee can be dismissed 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 thereafter with depression and anxiety) from September 2008. 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 Sessions 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