Long-Term Sickness Dismissals

In BS V Dundee City Council [2013] CSIH 91, the Scottish Court of Session considered the issue of when it is reasonable to dismiss an employee on long-term sickness absence.

BS was employed by Dundee City Council as a carpenter for 35 years. He was off work for over a year with depression and anxiety. The Council sought regular medical reports from Occupational Health ("OH") about his prognosis and likely return to work. The final OH report indicated he could be expected to return to work within 3 months, but his GP signed him off sick for a further month with no indication as to when he might return. The Council called BS to a meeting to consult with him about his proposed dismissal at which BS stated he did not feel he was getting any better.  The Council dismissed him for ill-health because a return to work in the foreseeable future seemed unlikely.  The Employment Tribunal found BS had been unfairly dismissed.

The Court of Session found the Employment Tribunal had erred in its approach and held the correct tests in such cases were as follows: (a) whether any reasonable employer would have waited longer before dismissing, and if so, how much longer? This included considering the availability and cost of temporary cover, whether the employee had exhausted sick pay, and the size of the employer; (b) whether the employee had been consulted with and their views properly balanced against medical opinion?; and (c) whether reasonable steps had been taken to ascertain the medical position (although this did not impose a requirement to pursue a detailed medical examination)? The Court added that length of service was not automatically relevant. The Court remitted the case to the Employment Tribunal to apply the above tests.

This case provides helpful guidance to employers on how to proceed in this often tricky area of law.