When an employee is dismissed for a reason relating to their capability to perform the work for which they were employed, whether or not the dismissal is fair or unfair will depend on whether, in the circumstances, the employer acted reasonably or unreasonably in treating the reason as sufficient to warrant dismissal.
The decision of the Employment Appeal Tribunal (EAT) in Dundee City Council v Sharp
illustrates the factors that should be taken into consideration when deciding whether or not it is appropriate to dismiss an employee who has been absent on sick leave for a long period.
Mr Sharp had worked for Dundee City Council as a joiner for 35 years until he was dismissed in September 2009 on the grounds of capability. He had been absent from work on account of depression and anxiety since September 2008 and was still not well enough to return to work one year later. During his absence, he was referred to an independent NHS occupational health service used by the Council, which regularly reported on his condition, and had several meetings with his employer to review his progress. On 11 September 2009, he was seen by a consultant occupational health physician who advised that he would expect Mr Sharp to be able to return to his job within the next one or two months, when his GP issued a final certificate. By this time, however, the Council was of the view that there was no immediate prospect of Mr Sharp being fit to return to work and it took the decision to dismiss him. Mr Sharp’s appeal against this decision was turned down on 28 October 2009, at which time he still did not feel able to return to work.
Mr Sharp brought a claim for unfair dismissal. The Employment Tribunal (ET) approached matters on the basis that ‘fair procedure is particularly important in ill health cases’ and found that the Council’s decision to dismiss Mr Sharp was unfair because the procedure adopted was outside the range of reasonable procedures that a reasonable employer might have used. The ET also criticised the Council for making assumptions regarding Mr Sharp’s health and for not having ascertained all the relevant facts to clarify the true medical position before dismissing an employee with 35 years’ service. The Council appealed.
The EAT held that the approach adopted by the ET to determine the reasonableness of the Council’s decision was too technical and over-analytical. Procedural fairness is no more important in sickness absence cases than in other cases. There is no absolute rule that in sickness cases a dismissal will be unfair unless the employer has sought and obtained all the ‘relevant’ facts. Such an approach would set too high a hurdle for the employer to overcome. Furthermore, whilst the Council had drawn inferences regarding the likelihood of Mr Sharp’s return to work from what he himself had said, that is not the same as making assumptions. There is no rule that an employer is not entitled to accept an employee’s own account of his state of health. Lastly, the reasonableness of an employer’s investigation in an ill health case is not to be judged by reference to the employee’s length of service. The ET was therefore wrong to conclude that the length of Mr Sharp’s service meant that further investigation was required.
The EAT set aside the ET’s judgment and remitted the case for determination by a different ET.Click here for a guide to dealing with employee absence.