In a recent case, the EAT considered whether it was reasonable for an employer to dismiss an employee who had been on long-term sick for just over 12 months.
Sharp v Dundee County Council
Mr Sharp was employed by the council for over 35 years as a joiner before being dismissed on the grounds of capability on 23 September 2009. At the date of his dismissal he had been absent for just over 12 months on account of “depression and anxiety.”
Over the period of his absence, the council obtained a number of medical reports from “OHSAS,” an independent NHS occupational health service, which advised the council that he remained “unfit for work” throughout. Mr Sharp was subsequently seen by an OHSAS physician on 11 September 2009, who confirmed that Mr Sharp had still not fully recovered, but was not permanently incapacitated and he expected that he would be able to return to work within the next one to three months.
Mrs Hutchinson, Administration Team Leader for the council had met with Mr Sharp in August 2011 (prior to the report), and advised him that if he remained unfit for work beyond 14 September (which is when his sick note expired), the council would consider terminating his employment. At a meeting on 23 September, Mr Sharp’s confirmed that he was still unfit for work and Mrs Hutchinson concluded there was “no daylight at the end of the tunnel” and because there was, in her view, no sign of him returning in the short term (or foreseeable future), she decided to terminate his employment. Mr Sharp’s appeal was unsuccessful.
The Employment Tribunal found Mr Sharp’s dismissal unfair. The EAT overturned the Tribunal’s decision and found that the Tribunal was wrong in suggesting that a higher standard of investigation is required in unfair dismissal cases involving ill-health incapacity (compared to cases of misconduct, for example), and were also wrong in relying upon Mr Sharp’s very long service. The EAT said that the issue was whether the employer acted reasonably in deciding that it had waited “long enough”, and that the decision to dismiss was reasonable at that time, with the information before it. The case was remitted to freshly constituted Tribunal to reconsider the issue.
This case is a helpful reminder that Tribunals should approach the question of “reasonableness” in relation to all unfair dismissal claims in the same way. However, it is important to note that assessing when the time has come to dismiss in cases of ill-health will depend on the specific circumstances of each case.
Employers should also note that claims arising out of ill-health dismissals are normally accompanied by claims for disability discrimination (including claims for failing to make reasonable adjustments), which often involve a more forensic examination by the tribunal both in relation to the medical evidence obtained by the employer and the steps taken to look for alternatives to dismissal. Therefore, we suggest that employers do proceed with care, and preferably take advice before taking the decision to dismiss an employee on the grounds of ill-health.
If you have any comments or queries please do not hesitate to contact Joanne Holborn, Adrian Maitra, or Tom Scaife on 01228 552600. Alternatively, email one of the team at HR@baineswilson.co.uk.
02 December 2011