Dismissal for long-term sickness absence





The fact that an employee’s long-term sickness 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 an illness or injury is work-related, the employer should not dismiss without first investigating all alternative ways of avoiding 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 is disabled, reasonable adjustments must be made (see page 243).





In First West Yorkshire Ltd t/a First Leeds v Haigh [2008] IRLR 182, an employee off sick qualified for an enhanced ill health early retirement pension but instead, his employer dismissed him. The tribunal ruled that on the facts of this particular case, it was unfair to dismiss without first considering early retirement.


Where an employee on long-term sickness absence is contractually entitled to payments under a long-term disability plan, there is an implied contract term that the employer will not dismiss them for medical incapacity to frustrate access to the benefits under the plan. Like any other implied term, it can be overcome by a clear express term that says something different (Awan v ICTS UK Limited [2018] UKEAT/0087/18/RN). 


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 usually involve obtaining 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;




• balancing the practical impact of the continued absence for the organisation, its customers and staff; 





• consulting the employee;





• investigating what alternative work is available; 





• warning the employee clearly and in writing at least once that continued or further absence may result in dismissal;




• allowing the employee to be accompanied to the meeting (see page 377); and




• allowing an appeal from the decision to dismiss. 





The obligation is to carry out “such medical investigations as are sensible in all the circumstances”, ensuring that “the correct question is asked and answered” (BS v Dundee City Council [2013] CSIH 91). This usually involves at least consulting a GP and following up with the GP any inconsistencies in the report if necessary.



Where an employee is disabled, reasonable adjustments must be made to the dismissal process . These might include, for example, changes to meeting arrangements, such as timing, venue, extra breaks, and adjustments to the right to be accompanied, for example, allowing a family member or disability support worker to accompany the worker.




Dismissing an employee without consultation, or a clear warning that further absence is likely to result in dismissal, will almost certainly be unfair (East Lindsey District Council v Daubney [1977] IRLR 181).




Any dismissal for sickness or injury must be reasonable in all the circumstances, applying the standard principles of unfair dismissal law explained in Chapter 10 (Section 98(4), ERA 96). Tribunals take into account factors such as:


• the nature of the illness and prognosis for recovery and return to work;



• the employer’s size and resources, including, for publicly funded roles, the need to safeguard public funds;





• difficulties organising work and arranging for short-term replacements;





• genuine evidence of a negative impact on the workload of colleagues;





• the importance of the role and the difficulty finding a replacement;





• length of service; and





• previous attendance record (and what this suggests as to the likelihood of recurrence).




The basic test is always: “how long would a reasonable employer in this situation wait before deciding to dismiss?” (Spencer v Paragon Wallpapers [1977] ICR 301, BS v Dundee City Council [2013] CSIH 91). Even if an absence has been long-term and difficult to manage, there is a good chance that an ill-health dismissal will be unfair if, by the date of the hearing, the employee can show that they are fully recovered and fit for work (see O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145).




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, failure to follow it may result in breach of implied duties of trust and confidence and good faith (see Chapter 3).




An employee can still be dismissed even if they have a current medical certificate and are still receiving sick pay. 





The Acas Code of Practice on Discipline and Grievance does not apply to ill-health (capability) dismissals that relate purely to the question whether or not an employee is too sick or injured to do their job (Holmes v Qinetiq Limited [2016] UKEAT/0206/15/BA). This means that there is no scope for a percentage uplift in compensation where a capability dismissal is procedurally unfair (see page 346). It does not alter the employer's duty to act fairly and to follow a fair procedure.



The Acas Code does apply to any ill-health dismissal that includes allegations of culpable conduct, for example, that the sickness is not genuine (‘malingering’), or that the employee is fraudulently claiming sick pay.




Employees are not obliged to keep their employer informed as to their recovery prospects (Mitchell v Arkwood Plastics [1993] ICR 471). Even so, an employee’s own views as to their prospects for a successful return are likely to be highly relevant when it comes to deciding whether a decision to dismiss was fair. It is much harder to dismiss someone fairly for ill-health where they have kept their employer updated about their recovery and are positive about their prospects for a successful return to work in the foreseeable future. Here is a good illustration: 





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 also open up a window for the employer to dismiss fairly relying on whatever information they already have available. 


Sometimes the written contract contains a specific term requiring compliance with reasonable requests to attend a medical examination, in which case an unreasonable refusal to attend would be a breach of contract and could lead to a dismissal.




Employers owe a common law duty of reasonable care to their employees (see Chapter 3). Very occasionally, an employee wants to return to work but there is a genuine risk that returning to work could make their condition worse. In this kind of case, any decision to dismiss the employee must be based on expert medical reports (DB Schenker Rail (UK) Limited v Doolan [2011] UKEATS/0053/09/B1) and must be taken in full consultation with the employee. Where the employee's medical condition has organisational causes (for example, a mental health condition linked to work overload), the employer should focus on fixing those organisational causes, rather than on the individual’s ability to cope with them. The Health and Safety Management Standards on Workplace Stress can be useful here — see page 301. The employer’s duty to make reasonable adjustments is also likely to be triggered. Any dismissal that takes place without first making all reasonable adjustments is likely to infringe the Equality Act 2010 and to be unfair (see Chapter 7). 


A claim for unfair dismissal due to sickness absence requires at least two years’ continuous service. See Chapter 10. However, no service is needed for a claim of disability discrimination.