In two recent cases the EAT considered how employers should conduct themselves when faced with the question of whether to dismiss employees suffering from ill-health.
First West Yorkshire Limited t/a First Leeds v Haigh
“Capability” is one of the potentially fair reasons for dismissal, and will normally cover the dismissal of an employee suffering from ill-health but the employer must still follow a reasonable procedure in order to dismiss fairly. However, the employer’s failure to do so (apart from statutory procedures) does not necessarily mean that the dismissal will be unfair, if the tribunal finds that the employee would have been dismissed anyway if the employer had followed a reasonable procedure.
In this case Mr Haigh was a bus driver who lost his licence for at least 12 months after he suffered a stroke in June 2005. He suffered another stroke in October 2005. Under his terms and conditions of employment, he would qualify for an enhanced ill-health retirement pension if he was permanently incapable of performing his duties. However, in October 2005 a manager decided Haigh was not permanently incapable and that he should be dismissed for lack of capability. Haigh appealed and First Leeds completed the appeal process without waiting for his consultant’s medical evidence.
First Leeds did not offer ill-health retirement to Haigh, and the tribunal considered the company’s desire to avoid the cost of doing so as the most important “single feature” in its finding of unfair dismissal. Because First Leeds’ conduct had been so fundamentally at fault, the tribunal rejected its argument that compensation should be reduced on the basis that it would have dismissed Haigh anyway – even if it had waited for his specialist’s report.
The EAT upheld the tribunal’s findings.
The Governing Body of Hastingsbury School v Clarke
A school that dismissed a teacher for gross misconduct did so unfairly because it failed to investigate whether or not he was suffering from ill-health before deciding to dismiss him.
The teacher had played pornography to students, told them that he had used prostitutes and that he had been taken over by aliens. He was suspended and during a disciplinary meeting said that his doctor had told him nothing was wrong with him. A form referring him to the occupational health department was completed but he was dismissed before he attended the appointment.
The teacher claimed unfair dismissal, and produced medical evidence that he had a psychotic illness. The tribunal found that the school had not given sufficient regard to the suspicion that the teacher was ill, and that therefore he had been unfairly dismissed.
The EAT upheld the tribunal’s findings but reduced Clarke’s compensation, because even if the school had waited for the specialist’s report, it would still have taken the decision to dismiss.
- If an employee on sick leave is entitled to ill-health retirement under their contract of employment, do not dismiss them for lack of capability simply to avoid the cost of offering retirement.
- When questions of ill-health are raised during a disciplinary process, you must consider medical evidence.
What you should do
- When dealing with employees on sick leave, get medical advice about how long they will not be able to perform their contractual obligations, and act on it. Wait for doctors’ reports before taking decisions.
- If there are any contractual benefits associated with sick leave (ie permanent health insurance or ill-health retirement), ask the medical expert questions that will clarify whether the employee qualifies.
- When dealing with disciplinary processes where questions of ill-health are raised, get medical evidence before taking any disciplinary decisions.