Dismissing an Employee on the Grounds of Ill Health

Dismissing employees who have been absent due to ill health for prolonged periods can be a minefield for employers.   However, the recent case of BS v Dundee City Council has provided valuable guidance to employers when dealing with ill health capability dismissals.
In this case, the court held that the critical question to be decided was whether any reasonable employer would have waited longer before dismissing the employee.

In determining the answer to this critical question, the court highlighted that an employer should carry out such medical investigations as are sensible in all the circumstances in order to determine whether the employee is likely to return to work in the foreseeable future.  However, in Gallop v Newport City Council, the Court of Appeal confirmed that employers cannot rely on medical evidence without question.  Even if a report from occupational health indicates that an employee is not disabled, ultimately it is for an employer to make a factual judgment and ensure that medical evidence does not trump all other facts of which an employer is aware. 
Essentially, the employer is required to carry out a balancing exercise, weighing the nature of the employee’s illness and his prospects of returning to work, against the employer’s organisational needs. Length of service of the employee can also be a relevant consideration in this balancing exercise. The court believed that a long and unblemished service record was evidence of the employee’s willingness to work and likelihood to return from sick-leave as soon as he was able to.

The court also said that in deciding whether to dismiss the employee, employers should weigh the employee’s views on his own ability to return to work against the opinion set out in any medical report obtained by the employer.
These cases reinforce the point that whilst courts recognise that an absent employee can cause real problems for employers both financially and strategically, employers must ensure that they take reasonable steps to try to facilitate a return to work, and not simply jump straight to dismissal.

Chris Bains