The recent case of L –v- M (UK EAT/0382/13/DXA) has confirmed that if an employer is responsible for an employee’s ill-health this is a relevant consideration as to whether and when it is reasonable to dismiss him for that incapacity. This applies not only when the employer caused the employee’s ill-health but also when the employer is responsible for exacerbating it.
Under employment legislation, as well as showing that capability was a fair reason for dismissal an employer also needs to demonstrate that they have followed a fair procedure. The following factors are likely to be relevant when considering the reasonableness of the decision to dismiss on the grounds of ill-health:-
- The nature of the employee’s illness and prognosis;
- The prospects of the employee returning to work and the likelihood of the re-occurrence of the illness;
- The need for the employer to have someone doing the work, the effect of the absence on the workforce;
- The extent to which the employee was made aware of the position; and
- The employee’s length of service.
The leading authority in this area historically was McCaddie –v- Royal Bank of Scotland 2007 EWCA 806 in which the Court of Appeal endorsed the Employment Appeal Tribunal’s approach in finding that an employer could fairly dismiss an employee for ill-health capability despite the fact that the employer’s conduct was responsible for the employee’s illness. The key issue is whether the employer acted reasonably in all the circumstances. The Court of Appeal confirmed the findings of the Employment Appeal Tribunal and noted that where an employer is responsible for the employee’s ill-health it should normally make more of an effort to find alternative employment or allow a longer period of sickness absence than would otherwise be reasonable.
The fact that the ill-health was caused by the employer would simply be one of the circumstances which must be taken into account in deciding whether or not the dismissal was fair.
The facts of the case of L v M are quite involved but it was held that the employer exacerbated the employee’s ill health which caused her absence and in turn led to her dismissal.
This case makes it clear that the employer should have taken their conduct into consideration when deciding if it was reasonable to dismiss the Claimant on the grounds of ill-health and perhaps afforded her a longer period of sickness absence before terminating her employment.