How long do you have to wait for an employee to recover?

With the cost of long-term sickness increasing a recent case showed a sensible approach by the EAT. Whilst an employer should take into consideration an employee’s length of service when deciding whether to dismiss, length of service did not impact on whether the investigation was reasonable.

In the case of Dundee City Council v Sharp, Mr Sharp had been off sick for over a year, having worked at the Council for over 35 years.  The Council had done a good job of keeping in touch with him, getting regular updates on his health and discussing those updates with him. They told him that they expected him to return to work when his current doctor’s certificate expired and that if he did not, then he might face dismissal.  In fact the Council received medical evidence that showed that Mr Sharp should be able to return shortly.  However, Mr Sharp did not return to work and told the Council that he was not well enough to come back.  The Council dismissed him believing from Mr Sharp that there was no prospect of him coming back in the near future.

The Tribunal said that the council had unfairly dismissed Mr Sharp because they had taken what he had said at face value.  The tribunal said that because he was a long serving employee, they owed it to him to investigate further.

The EAT however said that that was wrong and found that the Council had fairly dismissed him.  Just because he had been there a long time, this did not mean that the Council had to take any extra steps when investigating whether there were grounds to dismiss.  Equally, the Council were entitled to consider what Mr Sharp himself said about his own health.

Action points:

• Of critical importance is always to keep in touch with employees who are off sick.  If you stay in touch throughout, then the employee is less likely to dodge difficult conversations.
• Keep on top of the medical advice.  If appropriate, get occupational health to do regular reviews so that you know the true position.
• If you reach the point of “how much longer do I have to wait”, consider whether you have legitimate business reasons for dismissal.  For instance, who is covering their role?  Is it putting a burden on others?  Is the cost of a replacement too much to bear any longer?  Is the business suffering as a result?
• Warn the employee that if they do not return to work they may face dismissal.
• Discuss the likelihood of the employee returning to work with the employee.  If, for example, they tell you that they will return in the next month, you should not dismiss.  (If they have however strung you along for some months by saying this, that will be different!) Ideally you want them to confirm that they will not be in a position to return any time soon.
• Get up to date medical evidence.
• Offer the right of appeal.
   

Created 9 January 2012