Posted by Gemma Ospedale, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Ill health dismissals – constitutes reasonableness?
In BS v Dundee City Council the Inner House of the Court of Session has given useful guidance on the points employers need to consider when looking at dismissing on the grounds of ill health.
In this particular situation the Claimant had been employed for 35 years prior to being absent for over a year with a foot injury and then stress related illness. The employer dismissed on the basis that it could not see him returning to work in the short term or foreseeable future. The Tribunal held that the procedure adopted was not a reasonable one on the basis that it had not conducted a thorough enough investigation given the length of the employee’s service.
The EAT allowed an appeal and remitted the case for further consideration. In doing so, the Court looked at the various authorities on points to be considered when employers are looking at long term ill health. These are:-
•If an employee has been sick for some time, look at whether the employee can be reasonably expected to wait longer to determine how long they will be off.
•Consult with the employee and take their views into account. If they are anxious to return to work and feel this is a possibility, this will count in their favour; conversely if they are of the view that they are no better and do not know when they can return to work, this will operate against them.
•Consider the employee’s medical condition by way of GP and medical reports and likely prognosis. However this only requires the employer to obtain proper medical advice and does not require the employer to follow-up with detailed medical examinations. They just need to make sure that the right questions are asked and answered.
The Inner House of the Court of Session drew a distinction between long service in the context of disciplinary sanctions, where it can be taken into account in mitigation, and ill health. It said that the crucial point about long service and ill health is whether, during that long service, the employee had worked diligently and conscientiously, giving indications that the employee would be likely to return to work as soon as possible.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222
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