In the recent case of BS v Dundee City Council, the Court of Session has provided useful guidance for employers dealing with ill-health dismissals.

BS had worked for Dundee City Council for 35 years.  He was absent from work with depression and anxiety from 9 September 2008 until his employment was terminated on 23 September 2009.  He had a number of meetings with the Respondent and a number of occupational health appointments during his absence.  A meeting took place on 12 August 2009, at which BS stated that he still did not feel well enough to return.  The Respondent gave him a return to work date of 14 September 2009, and stated that if he was still not well enough to return at that point, consideration would be given to his dismissal.  He was told that he would have a further occupational health review prior to that date, and a phased return to work plan would be put in place.  The Claimant saw an occupational health physician on 11 September, who advised that BS was not fit to return at that point, but that he would expect him to return in 1-3 months, depending on when his GP signed him off as fit.  Following a further meeting, during which the Claimant stated he was no better and still not ready to return, the Claimant was dismissed on 23 September, as the Respondent considered that, despite the occupational health advice, there appeared to be no future prospect of a firm date for BS’ return.   

The Claimant brought a claim for unfair dismissal, which was initially upheld by the Employment Tribunal, but whose decision was then overturned on appeal by the Employment Appeal Tribunal.  The case has now been heard by the Court of Session, and the Court has set out some detailed guidance on how Tribunals should assess the reasonableness of ill health dismissals.

It stated that:

  • Firstly, it was essential to consider, where an employee has been absent for some time due to sickness, whether the employer can be expected to wait any longer.  Relevant considerations in this regard include whether the employee has exhausted any sick pay, how easily the employer can have the job covered, and the size of the organisation, with larger employers more easily able to absorb costs.  These factors have to be weighed against the fact that it must become open to the employer to bring the employment to an end at some point.
  • Secondly, it is crucial that the employer consults with the employee and has taken his views into account.  If he indicates he feels he will be able to return soon, this will count against dismissal.  If he states he is no better and does not know when he will return, this will lend weight to a decision to dismiss.
  • Thirdly, there is a need to take steps to discover the employee's medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice.  It does not require the employer to pursue a detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.  Any medical advice should be balanced against the views of the employee.
  • Finally, the Court also pointed out that length of service is not automatically relevant in a sickness absence dismissal case. The important question is whether the length of service, and the manner in which the service was rendered during that period, gives any indication as to whether the employee is likely to return to work as soon as he or she can.

The Court of Session felt that the Employment Tribunal’s decision had not given proper consideration to these four issues, and so has remitted the case back to the Tribunal to be considered again.