November 30, 2015

Dismissal of Employee on Long-Term Sick Leave

In Monmouthshire County Council v Harris UKEAT/0332/14/DA, the Employment Appeal Tribunal (EAT) considered the fairness of a dismissal of an employee on long-term sick leave.

Mrs Harris, an employee of Monmouthshire County Council (Council), was disabled and because of this often worked from home. After a change in management, her new line manager refused to continue to let her do so. Mrs Harris then started a period of sick leave from which she did not return. The Council dismissed her for capability approximately six months into her absence, following a medical report stating that it was not known when she would be fit to return to work. She brought claims for unfair dismissal and disability discrimination.

Although she was successful at the Employment Tribunal, the EAT overturned both findings. In relation to the unfair dismissal claim, it said that the Employment Tribunal should have considered whether the Council could reasonably have been expected to wait any longer before dismissing. This question is fundamental to the dismissal of employees on sick leave and involves considering the practical and commercial factors which influenced the employer's decision to dismiss.

With regard to the disability discrimination claim, the EAT said that although the Council had a legitimate aim in dismissing Mrs Harris (namely to protect public funds), the Employment Tribunal had failed to consider whether the dismissal was a "proportionate means" of achieving this legitimate aim and had instead focused too much on the Council's earlier failings to make reasonable adjustments to accommodate Mrs Harris' disability.

Although this decision is helpful for employers, it should be remembered that dismissing an employee on long-term sick leave is complex and can potentially lead to significant exposure. Employers should seek advice at the earliest opportunity to ensure the process is handled correctly from the outset.

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