Court of Session guidance on length of service in ill-health dismissals

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In DLA Piper’s case of the week, the Court of Session considered the relevance of length of service in an unfair dismissal claim to deciding how long to wait before dismissing someone because of incapability (ill health).

BS v Dundee City Council [2013] CSIH 91 CS


The Scottish Court of Session has upheld the decision of the Employment Appeal Tribunal (EAT) and remitted this unfair dismissal claim back to the employment tribunal for the matter to be reheard.

In doing so, the Court of Session restated the relevant test for employers considering the termination of employment of workers on long-term sickness absence.

BS, as the appellant is known, was employed by Dundee City Council’s contract services department for 35 years. The 55-year-old was dismissed by the council for incapability due to ill health following a period of absence lasting over one year.


BS was on long-term sick leave suffering from stress and anxiety, and remained off work from 9 September 2008 until the termination of his employment contract by the council on 23 September 2009.

In managing his absence, the council arranged for BS to attend a number of occupational health appointments.

As a result of continued absence, the council informed BS that, if he remained unfit to work after 14 September 2009, his employment would be at risk of termination.

The council received a report from its occupational health physicians (around 11 September 2009) to the effect that BS’s health was improving, but that he could not be expected to return to work for a period of one to three months.

Following this report, the council met with BS on 23 September 2009 to discuss the situation. At the meeting, BS claimed that he was feeling no better and did not think that he could return any time soon as a result. Thereafter, the council took the decision to dismiss BS as of 23 September 2009.

The employment tribunal found in BS’s favour following his claim for unfair dismissal. The tribunal held that no employer would have dismissed BS nine days after a report from a doctor stating that he may return to work within one to three months.

The council appealed to the EAT. The EAT decided that, because the original tribunal did not ask the question of how long the council could be expected to wait for BS to return to work, it had made an error of law, the decision should be set aside and the case remitted to the tribunal. BS appealed this decision to the Court of Session.


While the Court of Session was critical of some aspects of the EAT decision, it did agree with its ultimate decision and remitted the claim back to the same tribunal to be reheard. The Court of Session referred to the cases of K Spencer v Paragon Wallpapers Ltd [1976] IRLR 373 EAT and East Lindsey District Council v G E Daubney [1977] IRLR 181 EAT. In doing so, it considered that there were three important issues to consider in respect of dismissals arising from incapability due to ill health:

  • It is essential to consider the question of whether or not the employer can be expected to wait longer for the employee’s return.
  • There is a need to consult with the employee and take his or her views into account.
  • There is a need to take steps to find out about the employee’s medical condition and his or her likely prognosis. This merely requires the obtaining of proper medical advice.


This case is a good restatement of the necessary steps that an employer must take when considering whether or not to terminate an employee’s contract of employment by reason of incapability due to ill health.

Employers are not expected to evaluate and critique medical opinion, but are expected to obtain proper and relevant reports to ascertain the true medical position.

Once reports have been received, employers should discuss the findings with the employee to get his or her opinion and to take a sensible and reasonable view on when the employee is likely to return to work, and how long their organisation can wait for that employee to return to work.

Aaron Lyons, associate, DLA Piper

XpertHR guidance on long-term sickness absence

How to implement a phased return to work after long-term sickness absence Practical guidance on implementing a phased return to work after long-term sickness absence.

Long-term sickness absence policy Use this model policy to set out your organisation’s approach to long-term sickness absence.

Long-term sickness absence: Line manager briefing This line manager briefing looks at the law and good practice on long-term sickness absence, including obtaining medical advice and avoiding discrimination. It also explores how to manage the employee’s return to work.

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