The Court of Session’s judgment in an appeal involving a capability-related dismissal offers helpful guidance for employers about their obligations towards employees on long-term sick leave.

The situation in which Dundee City Council found itself was common enough. The employee had been off sick with a stress-related condition for about a year. At the time the Council decided to bring matters to a head, the employee did not feel ready to return to work, and the medical evidence was unclear about when he might be fit. As a result, having held a meeting with him, they dismissed him. This decision was confirmed on appeal.

Although this situation is relatively common, there have been few appeal cases in recent years. The most-quoted authority goes back to the 1970s. It states that the key question is how long the employer can reasonably be expected to wait. This was not addressed head on by the employment tribunal. It decided that the dismissal had been unfair largely because the employer should have done more to obtain clearer medical evidence before deciding to dismiss.

The Court of Session has ruled that the tribunal had neglected their job to assess whether the employer could reasonably have waited any longer. Relevant factors would include whether sick pay had been exhausted, the availability and cost of temporary staff and the size of the employer.

It was also important to assess two other issues. Firstly, whether the employee had been consulted, and secondly, whether the employer had taken reasonable steps to obtain medical evidence about the employee’s condition and prognosis. However the decision to dismiss was not a medical one, and a detailed medical examination would not be required.

The case has now been remitted to the original tribunal for make a fresh decision about the fairness of the dismissal.