Employment Law Update - Dismissal following long term sickness
In circumstances where the prognosis for an employee’s return to work is uncertain and pessimistic, an employer may be entitled to fairly dismiss without the dismissal amounting to unlawful discrimination arising from disability.
Monmouthshire County Council v Harris, EAT
The claimant suffered from a various chronic medical conditions known to her employer. Following advice from occupational health, she was allowed to work from home for part of the week. In January 2013, the claimant went off work due to ill health. She had complained that her manager was not supporting her home-working arrangement, although this complaint was never formally actioned.
The claimant was given notice to terminate her employment in June 2013. Her application for ill health retirement was declined on the basis that she was not permanently incapacitated.
She claimed that her dismissal was unfair and an act of unlawful discrimination arising from disability. Her claim was upheld by an employment tribunal on the basis that there had been inadequate consultation or warning of the possibility of dismissal. There had also been a failure to make reasonable adjustments by not supporting the home-working arrangements.
The tribunal awarded the claimant over £238,000 in compensation.
The EAT upheld the employer’s appeal. The employer had a legitimate aim of safeguarding public funds and reducing the impact on colleagues of the claimant’s ongoing absence. It was for the tribunal to consider whether dismissal was a proportionate means of achieving that aim. The tribunal had failed to take into account that whilst the employer had not obtained up to date medical evidence prior to dismissing the claimant, the evidence had continued to paint an uncertain and pessimistic prognosis of her ability to return to work. Further, the employer’s failure to make reasonable adjustments (the home-working arrangements) was not ongoing at
the time of the dismissal.
Crucially, the tribunal had failed to properly consider the question of whether the respondent could have been expected to wait any longer prior to dismissing the claimant.
This decision provides further reassurance that if an employer can show that dismissal is a proportionate means of achieving a legitimate aim, it will not amount to discrimination arising from disability.
Provided an employer consults with the employee and takes medical advice on the future prognosis, the EAT has confirmed that it is not necessary to pursue a detailed medical examination. If an employee’s condition is caused, or exacerbated, by the employer’s conduct, this will not necessarily render a dismissal unfair but will be a factor to be taken into account in deciding whether it was reasonable for the employer to dismiss.
The content of this article is for general information only. For further information on this topic, please contact a member of Birketts' employment team. Law covered as at November 2015.