When can employers dismiss an employee for long term sickness absence?

6 December 2013: Many employers are faced with the dilemma of how long to wait before taking steps to dismiss someone on long term sick leave.

Useful guidance has been given this week in the Scottish Court of Session in BS v Dundee City Council. Where an employee has been absent from work for some time due to sickness, the following factors need to be addressed:

1. Can the employer could be expected to wait any longer? A Tribunal will consider whether sick pay has run out, how easy it was to get in temporary cover, and the size of the organisation.
2. Has the employee been consulted with? Have her views had been taken into account? Have the employee’s views been properly balanced against a medical professional’s opinion?
3. Have reasonable steps had been taken to discover the employee’s medical condition and likely prognosis? A detailed medical examination may not be necessary, rather a decision based on the available medical advice.
4. 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.

These factors will then help a Tribunal determine whether any reasonable employer would have waited longer before dismissing the employee.

This decision will be particularly helpful to smaller employers, who may not be able to cope with employees being off sick for an extended period. However all employers will need to think carefully about these questions when managing sickness absence.

Reculver Employment Solicitors and Lawyers. Central London