A difficult question for many employers is when can they fairly dismiss an employee who has been absent from work for some time due to ill health? A recent decision of the Court of Session in BS v Dundee City Council has provided some guidance on this issue and the crucial question is whether any reasonable employer would have waited longer before dismissing the employee.
Other points that will be considered where an employee has been absent from work for some time owing to sickness are:
- Whether the employer could be expected to wait any longer and, if so, how much longer? Relevant factors include whether the employee was being paid sick pay or whether this has been exhausted, whether the employer was able to use temporary staff and the size of the organisation.
- Whether the employee has been consulted and the employee’s views about their ability to return to work been taken into account, and whether these views had been properly balanced against the medical professional's opinion.
- Whether reasonable steps had been taken to discover the employee's medical condition and likely prognosis. This merely requires the employer to obtain proper medical advice; it does not require an employer to pursue a detailed medical examination as the decision to dismiss is not a medical question but a question to be answered in the light of the available medical advice.
In this case, the employee had 35 years of service and the Court of Session pointed out that, although length of service is not automatically relevant, in an appropriate case it may show that the employee in question is a good and willing worker with a good attendance record and someone who would do his utmost to get back to work as soon as he could. The critical question in every case is whether the length of the employee's service, and the manner in which he worked during that period, yields inferences that indicate that the employee is likely to return to work as soon as he can.