He had been absent from work for over a year, the decision to dismiss had been deferred on five previous occasions, and they could not wait any longer. There are laws regarding termination of employment for employees suffering with ill health. First appealed the decision of the Tribunal, but the Employment Appeals Tribunal dismissed the appeal, holding that: "...as a general rule, when an employee is absent through ill-health in the long-term, an employer will be expected, prior to dismissing the employee, to take reasonable steps to consult him, to ascertain by means of appropriate medical evidence the nature and prognosis for his condition, and to consider alternative employment... ...where, however, an employer provides an enhanced pension on retirement through ill-health, it seems to us that an employer will also be expected to take reasonable steps to ascertain whether the employee is entitled to the benefit of ill-health retirement...". In addition to a claim for unfair dismissal, you may have a claim under health and safety legislation. The employer must take steps to discover the employee’s medical condition and his likely prognosis. His contractual notice at 1 month is more than 1 week longer than this, so the employee is not entitled to be paid. Employers should therefore bear the four principles above in mind when faced with dismissing an employee who has been absent from work for some time due to ill health. We should therefore be grateful for the recent decision of the Scottish Court of Session in BS v Dundee City Council (2013) CSIH 91 which although not, strictly speaking, binding on Employment Tribunals in England and Wales, provides some very welcome guidance in relation to this difficult exercise. In this case, the circumstances which led to the employee’s dismissal tell a sad tale. Ben Power. The EAT has provided a useful summary of the law in relation to ill-health capability dismissals and there are points for employers to bear in mind when deciding whether to dismiss: Even where the Acas code does not apply, employers shou… Ill Health – If an employee’s absence from work means that he/she is unable to do their job the employer can potentially rely on this as a reason for dismissal. Ill health retirement options. The reason for the EAT decision is based on the considerable injustice that might occur if an employer dismissed a sick employee who might be entitled to a retirement pension, without having considered that option. There was no discussion about obtaining a final certificate from his GP. Ill Health Incapacity In the previous articles, focus was placed on dismissal for misconduct and more specifically the procedural and substantive fairness required for such dismissals. Meanwhile, employee B has been employed for two years when they are dismissed due to long-term ill health. The EAT’s decision confirms that employers that dismiss on the ground of ill health, where there is no misconduct or culpable poor performance, are not bound to follow the Acas code. On one hand, a serious matter should be dealt with in accordance with the disciplinary procedure of the employer, but equally, the employer often does not wish to be seen to be dealing in a harsh manner with an employee who is obviously unwell. Identifying the correct employer in tribunal claims, The EU-UK Trade and Cooperation Agreement (TCA) and the implications on business immigration, Limited Liability Partnerships: Salaried Member rules, Remain on sick pay until 20 May 2006 and then remain employed, but off-work with no entitlement to sick pay until retirement. H worked as a bus driver for First West Yorkshire ('First'), and as a benefit of his employment was entitled to 26 weeks full pay, followed by 26 weeks half pay when off work due to illness, and a pension scheme permitting retirement on grounds of ill-health if the employee were deemed to be permanently incapable of efficiently discharging his duties. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. C submitted a claim to the Employment Tribunal arguing that if it was reasonable to have suspended him whilst an investigation was undertaken, it was also reasonable for the School to have continued the suspension whist the occupational assessment was obtained. The charge was later dropped, but led to him separating from his wife and being signed off work with depression and anxiety. A dismissal is when an employer ends an employee's contract. This led to a disciplinary meeting and, although the disciplinary charges were later dropped, the resulting humiliation led to a significant setback in his recovery. As for reasonableness, a number of factors should be taken into account, including the employee’s length of service, the effect of their absence on the workforce, the requirement for the role to be performed, the likelihood of the employee being able to return to work and the nature of their illness. 01454 292 069   recruit@thehrdirector.com, UK Subscriber Assistance T 01454 292 060 subs@thehrdirector.com. The Council asked him to return to work a month later and explained that they would consider his dismissal if he did not. During his absence, he was signed off sick by his GP and the occupational health assessment services for eight weeks at a time. var googletag = googletag || {}; First offered H two choices: H submitted a claim to the Employment Tribunal which criticised First's insufficient consideration of the medical evidence at each stage of the procedure, particularly the availability of ill-health retirement. Increased mortality must shape wellbeing and benefits decisions in 2021, Firms underestimating importance of benefits in these challenging times, Employers warned not to force employees to take COVID-19 vaccine, Employers reveal top skills required for 2021. C was suspended on full pay and referred to the Police Child Protection Unit. Dismissing an employee due to ill health is anything but straightforward. The difficulty that arises is how to address the issue. Should it wait until the employee has exhausted the appeal process with the Financial Ombudsman? An employee can be both fairly and lawfully dismissed, as long as the employer has a valid reason, has made any reasonable adjustments where applicable, and has followed a fair process. The Council referred him to Occupational Health advisers, but they proved to be unhelpful, and each Occupational Health report was almost identical. They may resign, or you may have to consider dismissing them. Following that meeting, the Council decided to dismiss. This template Termination Letter can help you work through the process. This can either work for or against the employee. googletag.defineSlot('/21798641100/Sidebar2', [[300, 250], [300, 600]], 'div-gpt-ad-1552319564911-0').addService(googletag.pubads()); The School then referred C to an occupational health assessment, and at the same time wrote to C dismissing him on grounds of gross misconduct. H appealed the dismissal and was assessed by an independent medical practitioner who found that H's condition could not be classified as permanent and that it would be likely that H would be able to undertake sedentary duties before October 2006. It is fair to dismiss disabled employees only when there is no prospect of their recuperating in time during which the employer can cope without suffering significant loss as a result of the employee’s absence. She brought an unfair dismissal claim. He was given the opportunity to appeal against this decision but chose not to. The employee is dismissed after 30 months due to ill health and his entitlement to all sick pay has been used up. You must ensure there are justifiable reasons and that you have explored every avenue prior to getting to the stage of dismissal due to ill health. The employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. An employer will often need to consider complex assessments of medical evidence, potentially pry into an employee’s private life, and deal with the prospect of taking someone’s livelihood away at a time in their life when they are most vulnerable. googletag.pubads().enableSingleRequest(); It concluded that the doctor’s opinion (that he would be fit to return within one to three months) was conditional upon his GP certifying him as fit to return, but that he himself gave no indication that he might return. An employer will often need to consider complex assessments of medical evidence, potentially pry into an employee’s private life, and deal with the prospect of taking someone’s livelihood away at a time in their life when they are most vulnerable. Summary: When is it reasonable to dismiss an employee who has been absent from work due to ill-health for an extended period of time? Receive more HR related news and content with our monthly Enewsletter (Ebrief). Prior to a second hearing, C's Union suggested that C's case might be treated as one of illness rather than discipline. 01454 292 063   advertise@thehrdirector.com, Recruitment Some absences which are unjustified e.g. The previous Labour Appeal Court held that the substantive fairness of a dismissal based on incapacity due to ill-health, depends on the question whether the employee can fairly be expected to continue in the employment relationship, bearing in mind the interests of the … In Holmes v Qinetiq Ltd [2016] IRLR 664 EAT, the EAT held the "Acas code of practice on disciplinary and grievance procedures" has no application where an employer does not allege culpable conduct by an employee. Fairness in Dealing with Lack of Capability due to Ill Health. The definition of disability (whether endometriosis and/or depression) under the … (4)        Finally, the employer should address the question of length of service in every case. The obligation is only to take such steps as are sensible in the circumstances. When he next met with the Council, he told them he was taking sleeping tablets and antidepressants, and could not envisage returning to work whilst on medication. The referral of C to an occupational health advisor had created the reasonable expectation that the disciplinary process should be suspended pending the outcome of the assessment - an approach that should be followed by all employers. That is whether length of service, and the manner in which the employee worked during that period, indicates that he is likely to take steps to return to work as soon as he can. googletag.enableServices(); googletag.enableServices(); First's occupational health advisor was of the opinion that H might be well enough to undertake alternative duties as of June 2006, but that H may not be able to drive at that time. }); The blame of the gamePrint – Issue 162 | Article of the Week The process is normally instigated by the employer when an employee has been absent for a long period, or periods, due to ill health and is unlikely to return to work.. In addition where an employee is receiving or is likely to receive benefits under a permanent health insurance scheme, it would normally be considered unfair to dismiss an employee. , 15 July 2019. Dismissal due to ill health - a recent Employment Appeal Tribunal (EAT) decision has helpfully clarified the question of whether or not an employer should follow their disciplinary procedure when dismissing an employee on the grounds of ill health. }); Publication Will Covid-19 level playing field for disabled workforce? googletag.defineSlot('/21798641100/ArticleAd', [300, 250], 'div-gpt-ad-1553701159481-0').addService(googletag.pubads()); Clarification has been given on how employers should handle an employee dismissal following an extended period of absence due to ill-health.. Confirmation of dismissal. Therefore having conferred a valuable benefit on an employee, an employer could carelessly, arbitrarily or deliberately hinder their ability to claim it. LID Publishing talks to author Bill Cohen about his latest book on Peter Drucker’s consulting principles. Buy this issue now, click here. Further complications, although outside the scope of this article, present themselves with permanent health insurance and disability discrimination. An employment tribunal upheld her claim. However, he did not return to work on the planned date and at his next meeting with the Council said that he did not feel any better or further forward since the last meeting. Although it’s not pleasant, sometimes when an employee’s health impacts their ability to work, you may have to consider dismissal. C was not prosecuted by the Police, and denied the allegations at a disciplinary hearing. Most employee benefits including ESA are now covered under Universal Credit. After a complaint had been submitted by a student in April 2005 an investigation suggested that C had played pornography on an overhead projector, had made inappropriate sexual remarks to students and had told students that he consorted with prostitutes, had been overtaken by aliens, and that terrorists were plotting to kill him. For example, if an employee's illness threatens the health of co-workers or customers, such as in the case of a food preparer who has contracted tuberculosis, an employer may be justified in terminating an ailing employee due to illness. I am writing to confirm that, following the meeting held on [DATE], it was decided that your employment with [NAME OF EMPLOYER] should be terminated on grounds of ill-health. There is a balancing act to be performed between the ability of the employer to wait, for example, because they could obtain temporary labour and because the employee has exhausted contractual sick pay, and the unsatisfactory state of affairs for an employer (and the costs associated with) having an employee on long-term sick leave. The Tribunal held that C's dismissal had been unfair, there had been insufficient regard for C's suspected illness when determining whether or not to discipline / dismiss C, and that there had been ample time to have referred C to occupational health. Can an employer discipline an employee where they refuse to follow a management request in the course of carrying out a trade union action? 4: Since there was an inconsistency between the medical advice and the employee’s own understanding of his medical condition, no reasonable employer would ignore the advice and dismiss an employee with 35 years’ service without first clarifying the true medical position. As a result, one of First's managers took the view that H's incapacity was permanent and that H should be dismissed for incapability. It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. The dismissal of employees on long-term sickness absence can put an employer at risk of a claim for unfair dismissal and/or disability discrimination. This means employers can dismiss someone for sickness without following the process recommended in … And cover topics including: Trends for 2021, The Skills Gap, Virtual Collaboration & Rise of Employee Autonomy. If he says that he will be able to return to work in the near future, it works in his favour. It is a common misconception that dismissal due to ill health is automatically unfair or unlawful. Items 10 and 11 of the schedule provides as follows: "10: Incapacity: ill-health or injury (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. Dismissals due to illness Sometimes an employee may have to stop working because of long-term ill health. This case therefore serves as a reminder to employers that when dealing with employees on long-term sick leave, they should ensure that appropriate medical advice is obtained on all medical issues, including qualification for retirement on grounds of ill-health. incapacity due to an employee’s ill-health or injury For a dismissal to be fair, you must prove that you had a fair reason to dismiss. There is a need properly to consult with the employee prior to dismissal. In this case the Tribunal identified that the "single feature" that drove it to the conclusion that the dismissal was unfair was the apparent wish of the employer to avoid the possibility of incurring the cost of providing an ill-health retirement pension. It may also be the case that your ill-health amounts to a disability under the Equality Act 2010. Apart from Statutory Sick Pay (SSP) when capability dismissal is due to ill health, other benefits include: Employment and Support Allowance (ESA). This article will highlight the aspects surrounding termination of employment based on ill health and injury. Under their contract of employment they are entitled to receive four weeks' notice. Termination of employment due to ill health. He had 35 years’ service when he developed a problem with his foot and took some time off work. Are adjustments required under the Equality Act 2010? googletag.cmd = googletag.cmd || []; If he says that he is no better and does not know when he will be able to return, it works against him. If you are considering terminating an employee’s contract on the grounds of ill health, it is important to follow a fair and reasonable procedure for someone who is on long term sick. The Court of Session summarised the four main principles relating to the fairness of ill health dismissals as follows: It is essential to consider the question of whether the employer could be expected to wait longer before dismissing. Redundancy is a form of dismissal and is fair in most cases. C was employed as a teacher in a School. Key to its conclusions were the following findings: 1: The reliance of the Council on the “perfunctory” reports of Occupational Health was not within the range of ways in which a reasonable employer might have informed itself. It usually means the same as being sacked or fired. This decision provides a useful summary of how Employment Tribunals should approach ill health dismissals in accordance with the current EAT case law. The absence can be prolonged or intermittent but frequent. 01454 292063   advertise@thehrdirector.com, Online Dismissal due to capability may also include instances where the employer dismisses because the employee is no longer capable of doing the job they were employed to do because of illness.. H then had a second stroke in October 2005. In June 2005 H suffered a stroke and the DVLA suspended H's driving licence for a period of 12 months. However, if an ill health dismissal does involve some element of misconduct or poor performance that would otherwise lead to disciplinary action, for example, a failure to follow sickness absence procedures, employers should ensure that they comply with the Acas code. Compensation uplift: Acas code of practice does not apply to ill-health dismissal involving no culpable conduct Date: 24 September 2016. (4)        Should have considered whether the employee’s length of service was relevant. Personal Independence Payment (PIP). The Employment Tribunal found that the dismissal was unfair due to a number of defects with the procedure. After six months’ absence, the Council found out that he had been charged with a criminal offence and suspected that was the reason for his absence. 2: No reasonable employer would have dismissed the employee only nine days after receiving the indication from Occupational Health that he would be fit to return to work in one to three months. googletag.pubads().enableSingleRequest(); He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). However, case law has established that it requires three key elements: (1) obtaining medical evidence, (2) consultation and (3) considering alternative employment. Leaving those issues aside, it is clear that weighing all of these factors against the employer’s need to manage its business results in a tricky balancing act that must be undertaken. It is not unusual for an Employer to be required to deal with The doctor concluded that his health was improving, he was not a candidate for ill-health retirement and he should be able to return to work within one to three months (although this was subject to his GP signing him off as fit for work). A termination of this type would only be appropriate if there is little likelihood that the employee will ever fully recuperate and be able to return to work. calling 3: In the absence of any medical evidence, there were no reasonable grounds for the Council’s belief that he employee was unlikely to return to work in the foreseeable future. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement. However, employers are often afraid to approach issues of ill-health pro-actively, for fear of falling foul of disability discrimination legislation and having to undertake lengthy 'risk-assessment' procedures and pay for expensive medical examinations. Redundancy. A few days before his proposed return, he met with a doctor appointed by Occupational Health. OC326242. Understanding dismissal for incapacity due to ill health Incapacity is the inherent inability of an employee to perform work according to the employer's established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. If an employee’s illness or injury is only temporary and likely to be of short duration, no dismissal is possible for that reason alone. googletag.cmd = googletag.cmd || []; googletag.cmd.push(function() { © Michelmores LLP is a Limited Liability Partnership, authorised and regulated by the Solicitors Regulation Authority and registered in England and Wales under Partnership No. However, this only requires the employer to obtain proper medical evidence and to ensure that the correct questions are asked and answered. Dismissal due to ill health: Benefits. Five ways to help teams beat the January blues. The Court of Session in BS v Dundee City Council has provided some guidance on this issue. This is generally not the case. A list of the members (all of whom are Article By Charles Wynn-Evans, Partner and Kate Anderson, Senior Associate at Dechert LLP. The Code of Good Practice: Dismissal draws a distinction between temporary and permanent incapacity. In the case of BS v Dundee City Council, BS had been off sick for 272 days with stress and depression. One of the forms a fair reason … (3)        Attached too much weight to the importance of obtaining a further medical opinion. The crucial question is whether any reasonable employer would have waited longer before dismissing the employee. 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