When can you fairly dismiss for ill-health?
The Court of Session in Scotland (similar to the Court of Appeal for Employment Tribunal claims; its decisions are 'persuasive' in England and Wales but not binding) has recently focussed on the issues to be addressed when deciding whether the dismissal of an employee on grounds of ill-health will be fair.
Before dismissing an employee on ill-health capability grounds, employers should bear in mind the following, which an Employment Tribunal will consider:
- whether in all the circumstances of the case any reasonable employer would have waited longer before dismissing the employee and, if so, how much longer. It is essential to consider this question.
- the resources of the employer, whether the employee is still receiving sick pay and whether temporary staff are able to carry out the absent employee's role.
- the views of the employee about his ability to return to work. The relevance of what an employee says about his health will vary, and any medical opinion should be balanced against the employee's own view when evaluating the employer's decision to dismiss. The employee's view can operate both for and against dismissal, depending on what the employee says about returning to work (and whether such views may be considered reliable).
- whether the employer has carried out such medical investigations as are sensible in all the circumstances. This requires the obtaining of proper medical advice but in this particular case too much importance was attached to obtaining a further medical opinion. An Employment Tribunal will need to consider what, if anything, any further medical examination might reveal and balance it against previous medical reports, GP notes and the employee's own view. This goes back to the essential question of whether a reasonable employer would have waited longer.
- whether the employee's length of service, and the manner in which the service was previously rendered, leads to an inference that the employee is likely to return to work as soon as he can.
- whether the employer's investigation is inadequate and whether this renders a decision to dismiss unfair. However, there is no absolute rule that the dismissal will be unfair if the employer has not sought and obtained all relevant facts.
This summary of factors to be considered is very helpful to employers. Nevertheless care must be taken. Usually a claim for unfair dismissal relating to long-term ill-health will be accompanied by a disability discrimination claim. In such cases, the Court of Appeal recently warned against employers "rubber stamping" the opinions of professionals when considering whether or not the employee has a disability. The employer must make its own factual judgment, asking the right questions, and based on the information available (which may partly depend on how much the employee co-operates).
Case: BS v Dundee City Council