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
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