In BS v Dundee City Council, the Court of Session (the Scottish Court of Appeal in civil matters) has given some useful guidance on a number of key issues that employers ought to address when considering dismissing an employee on "capability" grounds following a long period of sick leave. 

The key issues to address are:

  • Whether the employer could be expected to wait any longer and, if so, for how much longer before dismissing the employee. Relevant factors could include whether the employee has exhausted sick pay, whether the employer is able to use temporary staff to cover the absence, and the size of the organisation.
  • Whether the employee had been consulted with, and their views taken into account, and whether such views have been properly balanced against the medical professional's opinion.
  • Whether reasonable steps had been taken to assess the employee's medical condition and likely prognosis. It is to be noted that Tribunals have a high expectation that NHS organisations will obtain considered medical evidence.

The crucial question in determining whether a capability dismissal is reasonable is "whether any reasonable employer would have waited longer before dismissing the employee" taking account of the above factors. The court also pointed out that length of service is not automatically relevant. In a capability hearing, the important question is whether the length of service indicates that the employee is likely to return to work as soon as they can.