What is the critical question when deciding claims for unfair dismissal on grounds of ill-health?
The Court of Session held in BS v Dundee City Council that it was “whether any reasonable employer in all the circumstances would have waited longer before dismissing the employee”.
In determining the above question in circumstances where an employee has been absent from work for some time owing to sickness, the Court of Session held that the following issues needed to be considered:-
1. Whether the employer could have been expected to wait any longer. This would need take into account:-
(a) the length of the absence;
(b) whether temporary labour staff could be called to perform the work which would otherwise have been performed by the employee;
(c) whether the employee has exhausted their sick pay;
(d) the size of the organisation.
2. Whether reasonable steps have been taken to establish the employee’s medical condition and prognosis (which will include the likelihood of returning to work in the foreseeable future). The obligation however is only to take “such steps as are sensible according to the circumstances.”
3. Whether the employer consulted with the employee about his/her views on returning to work but which needs to be balanced against the views of a medical professional.
The Court of Session also addressed the question of whether length of service needs to be taken into account when determining the above. It was held that “the critical question in every case is whether the length of the employee’s service, and the manner in which he worked during that period, yields inferences that the employee is likely to return to work as soon as he can.”
19th December 2013