The tricky question of dismissing long term sick employees….

Posted on Nov 12, 2015

We are often asked how far employers need to go before dismissing an employee who is off sick long-term. This is frankly a tricky one which is why we thought we’d flag the recent case of Monmouthshire County Council v Harris in which the Employment Appeal Tribunal (EAT) gave us some useful reminders.

The facts briefly were these: Mrs Harris suffered from a disability arising from chronic conditions and as a result the Council initially allowed her to work from home for some of the week, this being a reasonable adjustment. However, when management changed the home-working arrangement was brought to an end. Mrs Harris was then off sick for nearly six months before she was dismissed.

The original Employment Tribunal found that she was unfairly dismissed and that she had suffered discrimination, but the EAT found they had adopted the wrong approach.

What the EAT said was that, in cases of ill health capability dismissals the Tribunal should consider:

  • Whether the employer could be expected to wait any longer before dismissing;
  • That before dismissal, the employee should be consulted about the possibility of returning to work, as well as the possibility of dismissal;
  • Whether the employer has enough information on the employee’s medical condition including the likely prognosis;
  • Whether the incapacity was caused or worsened by the employer;
  • That a dismissal will be considered fair as long as it amounts to a proportionate means of achieving a legitimate aim

In Mrs Harris’ case, the legitimate aim of the employer was found to be the safeguarding of public funds and the need to consider the effect on Mrs Harris’ colleagues given that the Council were unable to fund cover for her. In other words, her colleagues were having to pick up the slack.  What the tribunal did not do, according to the EAT is address whether dismissal was a proportionate means of achieving that aim.

What does this mean for employers?

If you find yourself in this situation, then here is a handy “checklist” to work through:

  • Have you considered what reasonable adjustments you can make to get the employee back to work?
  • If you have ruled out any that are not “reasonable”, make note of your thought processes and have the evidence to support that decision.
  • Have you discussed adjustments with the employee and taken medical advice on that point? What are their ideas?
  • You should warn the employee that they may face dismissal;
  • Generally there should be evidence of consultation with the employee about their absence and the possibility of returning to work.