Long-term sick leave can be a potential minefield for employers. Solicitor Maria Krishnan looks at a recent case that clears up some of the confusion for businesses.
Dealing with long-term sick leave absence is undoubtedly an issue that causes most employers a headache. On the one hand, an employer has to be mindful of the effects on employees required to cover the absence, as well as the cost of paying sick pay and benefits during this period. On the other hand, an employer needs to ensure it deals with the sick employee fairly and reasonably to avoid any potential claims.
The question that often vexes employers is: “How long is too long, and is it considered ‘fair’ to dismiss an employee who is absent on long-term sick leave?”
BS v Dundee City Council
The recent case of BS v Dundee City Council provides some useful guidance on this. BS, an employee, was on long-term sick leave from 9 September 2008 until his dismissal on 23 September 2009. A number of medical reports had been obtained during this period that said that although BS was receiving the necessary treatment, he remained unfit for work.
The council met with BS on 13 August 2009 and informed him that should he remain unfit for work beyond 14 September 2009, they might consider dismissing him. On 14 September 2009, a further medical assessment of BS confirmed that he was still not fit to return to work. However, the consulting doctor also told the council that BS’s condition was improving and he should be fit to return to work in one to three months.
The council then met with BS again. BS’s subjective assessment of his own condition contradicted this latest medical assessment. His opinion was that although he was keen to return to work, his condition was not improving and he had made no progress since they last met. The council dismissed BS as it determined that there was no reasonable prospect of BS returning to work in the short term or foreseeable future.
Employers must have options
In assessing whether or not his dismissal was reasonable, the Court of Session considered that it was essential to question whether or not the council could reasonably have been expected to wait any longer before moving to dismiss. In answering this question, the Court was clear that a balancing exercise must be undertaken.
Consideration should be given to matters such as whether an alternative source of labour is available and at what cost, whether or not the employer is still paying the employee – for example, company and/or statutory sick pay – the size of the organisation and the unsatisfactory situation of having an employee on long-term sick leave. In cases where an employer cannot be expected to wait any longer, it must be open to the employer to dismiss the employee.
The court also made it clear that an employer must consult with the employee and take their views into account when considering whether to dismiss them or not. If an employee states that his or her condition is no better and they do not know when they can return to work, an employer is entitled to treat this as a significant factor in favour of dismissal.
An employer should take “such steps as are sensible according to the circumstances” to discover the employee’s medical condition and likely prognosis. If medical evidence conflicts with the employee’s opinion of his or her health, there may not always be an obligation on the employer to obtain further medical evidence. In this case, the court concluded that it was difficult to see how further medical evidence would have clarified matters as BS’s own view was simply that he was not improving.
The court also found that an employer need not automatically take into account an employee’s length of service when deciding if a dismissal is reasonable. However, during those years of service, an employee may have shown that they are a keen worker who is rarely absent and who is likely to return to work as soon as he or she possibly can. If this is the case, an employer should consider length of service when making a decision.
Employers will, therefore, need to undertake a careful balancing exercise when deciding whether or not to dismiss an employee on long-term sick leave. Strictly speaking, the employer should assess whether or not it is reasonable to wait any longer, taking into account the factors set out above. Consultation with the employee and an assessment of their prognosis will also be key in ensuring that the process followed is fair, and that the ultimate decision taken is reasonable.
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