Long term ill-health and dismissal

30th December 2013 A common problem for employers, particularly small employers, is having staff absent due to long term sickness. Obviously employers will ideally want any employee that is ill to recover and return to work as soon as possible. However, there are times when the sickness absence stretches on for weeks or even months. Eventually that employer will be faced with the question of how and when to terminate the employment of that employee. It is a commonly held myth that employers can simply tell their employee that once the statutory sickpay has run out that their employment has ended, and some employers take the view that there is no need to contact the employee in that situation because they assume that the employment has come to an end at that point. However, this belief is misguided, and the case law has long made it clear that the entitlement to statutory sick pay and the termination of employment are two distinctly different things.

Cases of long term ill-health can come within the definition of "incapability" as one of the "potentially" fair reasons for dismissal listed by the Employment Rights Act 1996. However, whether or not a particular dismissal is fair will depend on the facts of that case and the process that the employer has followed in dealing with the dismissal. The difficulty for many employers is that they are unsure of what process they should follow. In the recent case of BS v Dundee City Council the Court of Session in Scotland considered the questions that must raised in deciding to carry out a dismissal on grounds of ill-health.

The Court concluded that the primary question for any Employment Tribunal in dealign with such a case is "Whether any reasonable employer would have waited longer before dismissing the employee".  

The Court went on to define the different issues which need to be addressed when deciding how to answer the main question. Those issues are:-

1. Whether the employer could be expected to wait any longer and, if so, how much longer.

In answering this there are a number of factors which could be considered, such as whether the employee has exhausted his/her right to statutory sick pay, whether the emloyer can cover the work with temporary staff or other existing staff, and the size and resources of the business.

the next major issue is:-
 
2. Whether the employee has been consulted over the situation and if his/her views have been taken into account, and if they have been considered in the context of any professional medical opinion on the situation.

This indicates that employers need to meet the employee and explain the situation, and see what comments, proposals or suggestions the employee may have before deciding to terminate their employment  on grounds of ill-health.

The next issue to be considered is :-

3. Whether or not the employer has taken reasonable steps to ascertain the employee's condition and any likely prognosis. 

The Court indicated that the decision to dismiss is not a medical question, but a question to be answered in light of all the known facts. However those facts will include and involve some consideration of the available medical evidence- such as any correspondence from the employee's GP or other medical professional.

A point that was raised in the case was how far the length of service of the employee will have an impact on the fairness to dismiss. The Court pointed out that the length of service is not automatically relevant, and instead the important question there is whether the manner of service by the employee in the past has given any indication as to whether that employee will return to work as soon as he/she can.   

This case highlights the need to address such a problem in a methodical and fair manner. It should be fair in the sense that the employee should be involved, to obtain his/her comments, suggestions, and to keep that employee involved in the process. It should be methodical in the sense of arranging meetings with the employee (or at least some dialogue, say over the telephone if the employee cannot attend in person). It should also involve gathering medical information- although this must in turn depend on the co-operation of the employee. The employer should consider what other work may be available for the employee to do, and consider any possible adjustments to the employee's role (temporary or permanent) before deciding to dismiss. In practical terms the question of how much longer the employer should have to wait can only be answered once these other steps have been taken.

At Hallett Employment Law Services we can give you guidance on the procedures and process to follow in dealing with this situation. So, if you need advice or assistance in dealing with this situation please do not hesitate to contact us.