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).


Employers owe a common law duty of reasonable care to the employee and in some cases, they will need to assess the risk of a return to work causing a recurrence of the ill-health. Any assessment must be based on expert medical reports (DB Schenker Rail (UK) Limited v Doolan [2011] UKEATS/0053/09/B1) and made in full consultation with the employee. Where an employee suffers from a mental health condition that is linked to their workload or working conditions, the emphasis should be on addressing the organisational factors that caused the condition, rather than the individual’s ability to cope with them. The Health and Safety Management Standards are useful here – see page 313.


If an illness or injury is work-related, the employer should not dismiss the employee 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 also be made (see above).



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.



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 (see page 313), 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 391); and


• allowing an appeal from the decision to dismiss. 



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


It is not clear what part, if any, the Fit for Work Service will play in future capability dismissals (see page 291). The service is supposed to be voluntary, so an employee’s decision not to participate in a referral, or not to allow the employer to see a report produced by the Service, must not be relied on to support a case that a capability dismissal was fair. In practice, reps need to be alert to this risk.


Dismissing an employee without consultation or a clear warning that further absence is likely to result in dismissal is almost certain to 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 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;



• stress and extra work for colleagues;



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



• the absent employee’s length of service;



• their previous attendance record; and



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



The key test is always: “how long would a reasonable employer in this situation have waited before deciding to dismiss?” (Spencer v Paragon Wallpapers [1977] ICR 301, BS v Dundee City Council [2013] CSIH 91). The emphasis should be on the employer’s ability to cope with the prospect of future absence at the date of dismissal – as opposed to the problems that the employer has already experienced due to the absence. Where an employee is medically fully recovered and is fit for work by the date of the dismissal hearing after a long-term sickness absence, a capability (ill-health) dismissal is likely to be unfair. For a useful example, see the recent case of 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. It may also result in a breach of the duties of trust and confidence and good faith (see Chapter 3).


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”, but this will not always mean a detailed medical examination. All the employer needs to do is “ensure that the correct question is asked and answered” (BS v Dundee City Council [2013] CSIH 91). This usually involves at least consulting the member’s GP, and following up with the GP any inconsistencies in the report if necessary.


The Acas Code of Practice on Discipline and Grievance does not apply to ill-health dismissals that relate purely to the question whether or not an employee is too sick or injured to be able to do their job (Holmes v Qinetiq Limited [2016] UKEAT/0206/15/BA). Although the Acas Code does not apply, the employer must still follow a fair procedure, as outlined in this Chapter (including every step in the employer’s own sickness absence procedure if there is one), but there will be no entitlement to an uplift in compensation for failure to follow Acas Code (see Chapter 10, page 356).


The Acas Code will apply to an ill-health dismissal that includes allegations of culpable conduct, for example that the sickness is not genuine, 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). But 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 for an employer to dismiss fairly for ill-health where a member has kept their employer updated about their recovery and is 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. Any 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 on whatever information they have available. Sometimes the contract includes an express term requiring employees to comply with reasonable requests to attend a medical examination, in which case an unreasonable refusal to attend would be a breach of contract.


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