The EAT has held in another incapability case that an employment tribunal was wrong to require that an employer should have taken length of service into account, and to require that it should have followed a particular procedure when obtaining further medical evidence. In Dundee City Council v Sharp, the employee had been absent for over 12 months with long-term depression and anxiety, and was no longer receiving sick pay. The Council decided to dismiss him after considering various occupational health reports, and the employee’s own view that he was not ready to come back to work. It was held by the employment tribunal that the Council had adopted an unfair procedure.
The EAT upheld an appeal by the Council, confirming many of the principles stressed in D B Schenker Rail (UK) Ltd v Doolan (see above). In an ill-health dismissal an important issue will be whether or not it is reasonable for the employer to decide that matters have gone on long enough and the stage has been reached at which he can reasonably decide that the time has come to take the employee off his books. A tribunal should not lay down any particular procedures to be carried out. The EAT also stressed that length of service is not relevant. An employer is not obliged to carry out a more detailed investigation if the employee has long service (here it was 35 years), nor more casual if the employee has shorter service. There is no absolute rule that in sickness cases an employer has to obtain all relevant facts, as what is considered relevant will vary between employers. In addition, there is no rule that an employer cannot accept the employee’s own view of his state of health.