Connecting North West business to relevant training, insight, conversation and each other

What question should you be asking when deciding whether to dismiss on grounds of ill-health?

Napthens - December 5th 2013

The case of BS -v- Dundee City Council considered this question, in particular whether on the facts a reasonable employer would have waited longer to before dismissing.

In a situation where an employee has been absent from work for some period of time owing to sickness, the following issues would need to be specifically addressed:

  1. Whether the employer could be expected to wait any longer and, if so, for how much longer. The relevant factors to consider include:
    • whether the employee has exhausted her sick pay
    • whether the employer was able to call on temporary staff
    • the size of the organisation
  2. Whether the employee had been consulted with, whether her views had been taken into account, and whether such views had been properly balanced against the medical professional's opinion.
  3. Whether reasonable steps had been taken to discover the employee's medical condition and the likely prognosis. It would not be necessary for the employer to pursue detailed medical examination as the decision to dismiss is not a medical question but a question to be answered in the light of the available medical advice.

The Court also pointed out that length of service is not automatically relevant. The important question is whether the length of service, and the manner in which the service was rendered during that period, yields inferences that indicate that the employee is likely to return to work as soon as she can.