Employers who are partly responsible for an employee’s ill health may need to “go the extra mile” to avoid facing an unfair dismissal claim.

In the case of L v M, an employee was dismissed for incapacity following 162 days of sickness leave for depression. The depression was brought on by complaints that the employee had been stalking someone outside work.

The employer received material which suggested that the employee was not guilty of the alleged stalking. However, it refused to disclose the material to the employee. When the employee got hold of this information from an anonymous source, she sent it to the police and the harassment case was dropped.

Nonetheless, a few weeks later, the employee was dismissed because of her sickness absence record.

The tribunal and the EAT held that her dismissal was unfair. It held that, although the employer was not responsible for the employee’s depression, it could have been brought to an end sooner if the employer had disclosed the material showing that she was innocent of the stalking allegations. The employer’s responsibility for aggravating the employee’s illness was a relevant factor when assessing the fairness of her dismissal. It was not reasonable to dismiss the employee when it did. However, the EAT stressed that this did not mean that her dismissal may not have been fair or reasonable at some stage in the future if she continued to be unwilling to return to work with her colleagues or to apply for a transfer to another office.

The key point for employers is that, where you have caused or exacerbated an employee’s illness, you may need to take greater steps to avoid dismissing for incapacity; for example, to consider alternative employment and longer periods of sick leave etc. However, provided that you have done so, any subsequent dismissal can be fair and reasonable.