Dundee City Council v Sharp
Mr Sharp was employed by Dundee City Council for 35 years until his dismissal in September 2009, when he had been absent from work with depression for a year. In January 2009, he was referred to occupational health, with the subsequent report stating that he would be absent for at least another eight weeks.
Mr Sharp was reviewed by occupational health in March, May and July and on each occasion occupational health reported that he would be absent for at least another eight weeks. In August, the council invited Mr Sharp to a review meeting.
Mr Sharp explained that he did not feel that he could return to work while taking high-dosage anti-depressants. Following the meeting, he was given a return to work date of 14 September 2009. In September 2009, he saw occupational health again, with its advice being that he remained unfit and a return date could not be predicted.
Occupational health referred him to a doctor, who advised that he would be fit to return in one to three months. He did not return to work and was asked to attend a meeting and told he was at risk of being dismissed.
Following the meeting, it was the council’s view that Mr Sharp was not going to return to work in the foreseeable future and the council decided to dismiss him. Mr Sharp’s appeal against dismissal was unsuccessful and he brought a claim for unfair dismissal.
The employment tribunal held that Mr Sharp was dismissed for a potentially fair reason, namely capability. However, the tribunal held that the dismissal was unfair because the procedure adopted by the council was not within the range of reasonable responses.
The tribunal said that a fair procedure is particularly important in ill-health cases and they were critical of the council for not having occupational health contact the GP to ask when he envisaged that Mr Sharp would be fit to return. The council appealed.
The Employment Appeal Tribunal (EAT) upheld the appeal. The EAT stated that fairness is no more important in ill-health cases than in other cases. There is no absolute rule that, in the case of sickness absence, dismissal will be unfair unless the employer has obtained all relevant facts. Overall fairness does not depend on whether or not there is something else that an employer might have done that might have produced a different result.
The EAT also pointed out that there is not any rule that an employer is not entitled to accept an employee’s own account of the state of their health. Finally, length of service was not relevant to the assessment of Mr Sharp’s health. There is no obligation to carry out any more detailed enquiries in the case of a long-serving employee.
The EAT set aside the tribunal’s decision.
In cases of long-term sickness absence, the central issue will generally be whether or not it is reasonable for the employer to decide that matters have gone on long enough and a stage has been reached at which it can reasonably decide to take the employee “off the books”.
Ascertaining the true medical position will be of crucial importance and this will often involve obtaining a medical report from a medical expert, whether the employee’s GP, an occupational-health physician or a doctor retained by the employer. Any medical report that will be used as evidence in support of an employer’s decision to dismiss should be up to date and give a clear prognosis about the likely duration of the employee’s illness or medical condition. Fairness will also involve consulting with the employee. However, the decision to dismiss is ultimately a management decision and not a medical decision.
Further, no higher standard is required for investigations in long-term sickness cases than in misconduct cases or where the employee is long-serving. While length of service will be a relevant consideration in determining the reasonableness of the decision to dismiss, it is irrelevant in determining the reasonableness of the investigation.
Kate Hodgkiss, employment partner, DLA Piper
Practical guidance from XpertHR on long-term sickness absence