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Handling a dismissal for long term absence

Posted on 3rd December 2015
Case law

You must ask: How much longer should you wait before dismissing?

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Could the Council have been expected to allow more time before dismissing? Given all those circumstances was dismissal then within the range of reasonable responses? These were the key questions

Monmouthshire County Council v Harris 2015 EAT

Background

If you are the employer, before deciding to dismiss an employee who continues to be on long-term sickness absence you must consider a number of factors. These include an up to date medical prognosis and what if any reasonable adjustments should be made to help the employee return to work successfully. You must also consult properly with your employee about any concerns and intentions, especially if dismissal is contemplated. Get the decision making process wrong and the employee may have valid claims of unfair dismissal and disability discrimination.  The employment tribunal will examine your dismissal procedure and your reasons for justifying the dismissal.

Sometimes the employment tribunal will get its judgment wrong about the merits of the employer’s decision to dismiss. This is what happened in this case.  

The EAT has recently upheld the Council’s appeal against the employment tribunal’s decision that the dismissal of Mrs Harris was both unfair and discriminatory for a reason arising from her disability (under section 15 Equality Act 2010). The tribunal awarded Mrs Harris compensation of over £238,000. This no doubt helps to explain why the Council elected to appeal to the EAT.

To be fair, the employment tribunal did find a number of relevant background factors that showed the Council had badly handled the long-term absence of Mrs Harris. For example, it refused to allow Mrs Harris to continue working from home and this was a failure to implement a reasonable adjustment (but this part of the claim was brought out of time). The Council also failed to engage in meaningful consultation with Mrs Harris about her absence and it failed to obtain an up to date medical prognosis including a likely return to work date. These failures were all factors that influenced the tribunal’s decision in favour Mrs Harris arguing that the Council’s wrong doing should not let it avoid liability.

The EAT decision

The EAT disagreed with the tribunal’s approach. It held that the employment tribunal was allowed to criticise the Council’s handling of the dismissal. The identified failures were potentially relevant matters that the tribunal was entitled to take into account but the tribunal was wrong in its failure to look at the key question of whether the Council could have been expected to wait longer before deciding to dismiss Mrs Harris. The EAT found that the tribunal had not answered this question.

It was not disputed that by the time of the dismissal there were no reasonable adjustments that the Council could have implemented that would have ensured Mrs Harris’ return to work. The Council argued that the medical prognosis was also unhelpful to Mrs Harris because it suggested that it might be another three years before she was fully able to return to work and in those circumstances its dismissal was the right decision.

The EAT said that the tribunal should have asked whether the decision to dismiss was fair or unfair given not just the background failings of the Council but also the business and organisational pressures it faced at the time and going forward. Could the Council have been expected to allow more time before dismissing? Given all those circumstances was dismissal then within the range of reasonable responses? These were the key questions the employment tribunal should have asked itself as part of taking into account all the relevant factors.

In Practice

This case highlights how the employer’s decision making process should be examined by the employment tribunal and, regardless of other relevant background factors, employers are allowed to ask themselves should they wait longer before deciding to dismiss?

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