The correct test for dismissal on the grounds of ill-health

The correct test for dismissal on the grounds of ill-health


Author: Charles Barnes

In the recent case of BS v Dundee City Council clarification has been given on the correct test employers should apply to long-term health dismissals.

Brief summary of the case

BS had been off sick for the last 272 days with stress and depression. Throughout his ill-health absence he had been signed off sick by his GP and the occupational health assessment services for 8 weeks at a time. The occupational health reports gave no valuable indication of BS's progress.

In August 2009, the Council met with BS to discuss his latest occupational health report and the prospect of his return to work. At the end of the meeting the Council warned him that if he failed to return to work by 14 September it would consider dismissing him.

On 11 September BS was seen by an occupational health doctor who indicated that his health was improving and that he could be expected to return to work within 1 to 3 months depending on when his GP signed him as fit.

BS did not return to work on 14 September 2009 and was signed unfit to work for a further 4 weeks by his GP.

On 23 September 2009 the Council met with BS to discuss his continuing absence, during which BS indicated he did not feel he was getting any better. The Council decided that a return to work in the foreseeable future wasn't likely and decided to dismiss BS on the grounds of capability.

BS appealed unsuccessfully and brought an unfair dismissal claim. The Employment Tribunal ("the ET") found he had been unfairly dismissed and based its finding on the Council not conducting a thorough investigation into BS's health and in particular that a further medical report should have been obtained about the prospect of BS returning to work prior to any decision to dismiss being taken. The ET also held that as BS had 35 years' continuous service the Council had a duty to conduct a more thorough investigation.

On appeal the case came before the Inner House of the Court of Session ("the Inner House").

The Decision

The Inner House held that the ET had not approached the matter with the correct tests in mind.

The critical question for an employer in cases of long term sickness dismissals is whether it can be expected to wait any longer before deciding to dismiss. This is a balancing exercise that involves a consideration of:

  • the availability of temporary cover (including its cost);
  • whether the employee has exhausted sick pay;
  • the administrative and occupational health costs that might be incurred; and
  • the size and resources of the employer.

In addition the Inner Court held that employers should:

  • consult with the employee to take their views into account and balance these with the views of any medical expert. The Inner Court stated "if an employee states they are not feeling any better and do not know when they can return to work then this will be a significant factor operating against them";
  • ascertain the medical position but there is "no need to pursue a detailed medical examination. The employer merely needs to obtain proper medical advice and ask the right questions".

The Inner Court also held that length of service was not relevant to the degree of investigation required. It is only relevant "to the extent that the manner in which an employee worked during that period of service yields inferences that indicate an employee is likely to return to work as soon as he can".

Practical Implications

This case helpfully clarifies the correct test to apply to long-term ill-health dismissals. The decision also suggests employers can take a medical report at face value in terms of the prognosis when considering dismissal on the grounds of ill-health and should balance the views of the expert against the views of the employee themselves.