Employees on long-term absence due to ill health – when is dismissal fair?

In the recent unfair dismissal case of Monmouthshire County Council v Harris where the reason for dismissal was long-term ill-health absence, the Employment Appeal Tribunal (EAT) held that an employment tribunal must consider whether the employer could have been expected to “wait longer” before dismissing the employee.

The Claimant, Mrs Harris, was disabled (having been diagnosed with four conditions) and worked partly at home. She had three occupational health reports over a period of time which made recommendations that she should work from home. However, in 2010 Mrs Harris was allocated a new manager who would not allow her to work from home. Mrs Harris began a period of sick-leave and claimed that she was being bullied and harassed by her new manager. In January 2013, Mrs Harris set out her desired working pattern which was largely the same as what she had already been working. She attended another occupational health appointment in March 2013 and the subsequent report said that it was not known when she would be fit to return to work. Her GP’s records show that her health had deteriorated over time from work-related stress and particularly her relationship with her new manager. Mrs Harris was eventually sent a letter terminating her employment on grounds of capability due to ill-health.

As well as her claim for unfair dismissal, Mrs Harris made employment tribunal claims for disability discrimination arising out of her disability, a failure to make reasonable adjustments and harassment.

The employment tribunal held that Mrs Harris’ dismissal was unfair. It found that the reason for the dismissal was absence which arose from her medical condition. It also found a number of procedural failings in the run up to the dismissal.

The Respondent appealed this decision and that appeal was upheld by the EAT. In reaching its decision the EAT said that, although the employment tribunal accepted that capability was the Respondent’s reason for the dismissal, the question was whether the decision to dismiss – having regard to that reason – was fair, in all the circumstances of the case. In her Judgment Her Honour Judge Eady QC stated that the employment tribunal’s “reasoning needed to demonstrate that it had considered whether the Respondent could have been expected to wait longer, as well as the question of the adequacy of any consultation with the Claimant and the obtaining of proper medical advice”. In her view she found that the employment tribunal had not addressed the fundamental question of whether the Respondent could have reasonably been expected to wait longer before dismissing the Claimant and consequently, she took the view that the employment tribunal’s decision could not safely stand.

This decision highlights the importance of employers acting with real caution when considering dismissing an employee due to long term ill health absence in order to avoid allegations of discrimination and/or unfair dismissal. It emphasises the extent to which employers should implement a detailed internal sickness management procedure which deals with long-term sickness. Further, in the event that an employer is unsure about dismissing an employee based on their absence due to sickness we would recommend that they should seek legal advice before taking any action.

By Louise Allen, Associate in Employment and Dispute Resolution team at DWFM Beckman

For more information or for any employment law enquiries the employment team can be contacted at anna.crayton@dwfmbeckman.com or 020 7408 8888.