So when, exactly, is it safe to dismiss an employee who has been on long term sickness absence? Being asked this question often feels like you have been asked the question ‘how long is a piece of string’?
It has long been the case that dismissal on the grounds of long term sickness absence can be a fair dismissal on the grounds of capability. However, there is often nervousness around relying on dismissals for this reason, not least because of the vagaries around whether a tribunal would regard the decision and procedure followed to be reasonable.
This makes the Scottish, Court of Session case of BS V Dundee City Council a helpful one for employers. The case states that the critical question to be decided in dismissals on grounds of ill-health is “Whether any reasonable employer would have waited longer before dismissing the employee?”
The Court of Session went on to state that in a long term absence case, the following issues would need to be specifically addressed:
- Whether the employer could be expected to wait any longer and, if so, for how much longer. Relevant factors could include whether the employee has exhausted their sick pay, whether the employer was able to call on temporary staff, and the size of the organisation.
- Whether the employee had been consulted with, whether their views had been taken into account, and whether such views had been properly balanced against the medical professional’s opinion.
- Whether reasonable steps had been taken to discover the employee’s medical condition and likely prognosis. It would not be necessary for the employer to pursue detailed medical examination as the decision to dismiss is not a medical question but a question to be answered in the light of the available medical advice.
For further help or advice please contact Tim Davies on 0191 211 7927.