Deciding when it’s appropriate to dismiss an employee on the grounds of long-term ill health can be difficult. The case of BS v Dundee City Council provides some helpful guidance to employers currently considering making an ill health dismissal.
In considering this particular case, the Court of Session stated that three key issues should be taken into account when deciding if it is reasonable to dismiss an employee in relation to their long-term absence. The first focused on the question of how much longer the employer could be expected to wait for a return to work and, if so, how long that period should be. Pertinent factors include the size of and resources within the organisation, whether the employee has run out of sick pay and the ability to source temporary employees who can sufficiently undertake the employee’s job.
The second issue depends upon how much the employer has consulted with the employee in order to gain information on a possible return to work. Importance is placed on direct contact with the employee, taking the employee’s views into consideration and obtaining a professional medical opinion on the prospect of a return to work. This last point is connected to the third issue, which requires employers to review any reasonable actions that might be necessary to understand the employee’s medical condition and its prognosis. The employer should feel confident about making a decision in light of the medical advice available, whether that is from the employee’s GP/consultant or from an independent occupational health provider.
In addition to these, the Court confirmed that length of service is not necessarily relevant to the decision to dismiss. The important question to ask is if length of service and the employee’s record suggests that the individual is likely to return to work as quickly as possible.
