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Case Law

What must an employer do in long-term ill-health cases?

The Scottish Court of Session says consider if it can wait longer before dismissing, consult with the employee and establish the medical condition and prognosis.

BS v Dundee City Council | 2013

The facts

BS had been employed by the Council for 35 years. He was off sick from 9 September 2008 until his dismissal on 23 September 2009.

During 2008 BS met informally with Mrs Hutchinson, an employee of the Council. She referred him to occupational health in January 2009 and a number of medical reports were received throughout 2009. They were described as ‘formulaic’, broadly stating that BS was receiving ‘the right treatment’ but there was no improvement in his symptoms.

At a meeting with BS on 12 August 2009 the latest medical report was discussed. The Council gave BS a return to work date of 14 September 2009. He was told his employment could be terminated if he did not return to work on this date.

On 7 September 2009 BS saw an occupational health nurse. The report said the nurse was not able to predict a return to work date but BS was seeing a doctor on 11 September 2009. The doctor’s report gave an expected return to work of between 1 and 3 months depending when BS’s GP ‘signed him fit’.

On 14 September 2009 BS contacted Mrs Hutchinson to say that he was still unwell. Later the same day he saw his GP and was signed off until 12 October 2009.

Mrs Hutchison arranged a meeting with BS on 23 September 2009. The meeting considered the most recent reports from occupational health and BS’s own view that ‘he was not any better, nor any further forward since the last meeting’. She did not discuss an anticipated return date with BS, nor did she seek further medical advice from either occupational health or BS’s GP, but as a result of the meeting Mrs Hutchinson decided to dismiss BS. In her opinion there was no indication ‘when a final GP certificate might be achieved’, the decision had been deferred on five previous occasions, BS had been absent for more than a year and dismissal was appropriate.

It is worth noting that BS was under disciplinary investigation during his absence and this seemed to be impacting on and prolonging his recovery.

BS’s appeal against his dismissal was unsuccessful and he brought a claim for unfair dismissal.

The decision

The employment tribunal concluded the dismissal was unfair. The employment tribunal found the Council’s investigations had not been thorough and a further medical report should have been obtained, particularly as BS had been employed for 35 years.

The EAT and Scottish Inner Court of Session decided the employment tribunal had considered the wrong questions.

The Court of Session clearly said length of service was relevant to the extent it shows that the employee is ‘likely to return as soon as he can’.

It also gave guidance to employers considering cases involving long-term sickness. The employer must:

  1. consider if it can wait any longer before dismissing the employee. This is a balance between, for example, availability of temporary staff, the cost of temporary staff, whether sick pay had been exhausted, the costs of medical advice and referrals, the size of the employer, and the ‘unsatisfactory situation of having an employee on very lengthy sick leave’.
  2. consult with the employee and take his views into account. The Court of Session felt that BS’s comments ‘did not encourage any view that he would return to work soon’ despite understanding that the Council were considering dismissal.
  3. take steps to establish the employee’s medical condition and prognosis, ‘but this merely requires the obtaining of proper medical advice’ and a balance with the views of the employee. The Court of Session commented in this case, given BS’s own views, ‘it is difficult to see how further medical advice could clarify matters’.

The case has been referred back to the employment tribunal to consider the question:

‘whether a reasonable employer, in view of [the doctor’s] report, the continuing note from the GP, and [BS]’s own views, would have waited longer, or whether the decision to dismiss … was within the range of reasonable responses open to such an employer’.

In practice

This case is not binding on employment tribunals in England and Wales but it did review and in effect summarise cases which are. It is therefore an important reminder of what employers must do before taking a decision to dismiss an employee on long-term sick leave. Any people manager considering dismissal in a long-term ill-health case must ensure these steps are taken and documented.

It is worthy of note that this case did not involve a ‘disability’, which would have added another layer of complexity.

If you are not at all sure how to proceed with an employee on long-term sick get in touch and one of our specialist employment law solicitors will guide you through the process and help you reach a reasonable decision.

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