Fair dismissal procedure for those on long term sick leave
The EAT has decided in Dundee City Council v Sharp UKEAT/0009/11 that fair dismissal procedure for long term sickness absence does not vary according to the employee’s length of service.
Background
The EAT has decided that where an employee is off sick long term, length of service is not a factor to be taken into account when determining the reasonableness of an investigation and there is no particular procedure to follow in relation to further medical enquiries. Length of service is relevant to reasonableness of decision to dismiss but not to reasonableness of the investigation. The EAT clarified that the standard of enquiry required is no higher than is required for a misconduct investigation.
Facts
Mr S had been employed by Dundee City Council (DCC) for 35 years as a joiner. In September 2008, Mr S went on sick leave on account of depression and anxiety. He was absent until he was dismissed by reason of capability in September 2009.
During his absence, prior to the dismissal, he was signed off by his GP in 8 week periods. Each certificate gave the GP the option of specifying whether or not the certificate was the final one or not -in other words, whether at the expiration of the certificate, the GP considered that Mr S would be fit to return to work. Mr S was never given a final certificate by his GP.
While absent, Mr S was receiving counselling and was referred to a provider of occupational health services which assessed Mr S several times and produced reports. Each report was the same: Mr S was unfit for work, was receiving the correct treatment and would be unable to return to work for at least another 8 weeks. After each occupational health report, DCC invited Mr S to a meeting to review his progress.
Mr S was invited to a meeting on 12 August 2009. At that meeting Mr S explained that he was on sleeping tablets and a high dosage of antidepressants and as a result did not feel he could return to work. Following the meeting, DCC wrote to Mr S giving him a return to work date of 14 September 2009, the date that Mr S’s current GP certificate was due to expire.
Mr S was reviewed by an occupational health nurse on 7 September 2009 who advised that he remained unfit to work and that she could not a predict a date for his return to work. She had arranged for him to be seen by an occupational health physician who assessed Mr S on 7 September 2009 and produced a report dated 14 September 2009. The Physician advised that Mr S was not fit to return to work the following week but was not permanently incapacitated and that he expected Mr S would be able to return to work “within the next one to three months”.
Mr S did not return to work on 14 September 2009. DCC invited him to a meeting and warned him that he was at risk of dismissal. At the meeting on the 23 September 2009 the tribunal’s finding of fact was that Mr S said he was not ready to come back and was not any better since the last meeting.
DCC decided that Mr S was not going to return to work in the foreseeable future, that there was no daylight at the end of the tunnel and accordingly made the decision to dismiss. Mr S was dismissed by letter dated 23 September 2009 which he unsuccessfully appealed on the grounds that insufficient consideration had been given to:
the occupational physician’s report;
Mr S’s length of service; and
the possibility of an ill health retirement.
Mr S commenced unfair dismissal proceedings and the Employment Tribunal found that he had been unfairly dismissed because DCC had not followed fair procedure.
The procedural defect was DCC’s failure to ascertain the true medical position from occupational health or Mr S’s GP and to take account of Mr S’s long service in conducting the investigation.
DCC appealed to the EAT on the grounds that the ET had:
taken the wrong approach as it had focussed on the analysis of the procedure; and
incorrectly considered that Mr S’s length of service was a factor that should have been taken into account by the employer when conducting its investigation.
Decision
The EAT allowed the appeal and remitted the case to a freshly constituted ET.
The EAT held that the ET had erred when assessing the reasonableness of an employer’s investigation by requiring a particular procedure to be followed (namely, further medical enquires) and regarding an employee’s length of service as a relevant factor.
The EAT held that overall fairness of a decision to dismiss is not determined by reference to whether or not there is something else that the employer might have done that might have produced a different result. If that was the case, then there is a risk that too high a hurdle is being set for the employer to overcome. The employer must simply take “such steps that are sensible”.
The EAT stated that length of service and conduct and capability during that service is a factor which a reasonable employer would be expected to take into account when considering whether or not to dismiss.
The EAT was very critical of the ET taking an approach that was technical and over-analytical and had failed to stand back and assess the situation in the whole. Namely, whether DCC had consulted with the employee (which it had, repeatedly), had carried out a reasonable investigation (by undertaking “sensible steps”) and had reached a reasonable view on the issue of whether it was reasonable to wait any longer before making a decision to dismiss.
Comment
This case makes clear that the reasonableness of an investigation is not dependent on the length of an employee’s service. It also clarifies that the standard of enquiry in an ill health case is no higher than that required in a misconduct case and there are no particular procedures to be carried out in relation to further medical enquiries. The employer must only carry out such steps that are sensible and these will be the same regardless of length of service. The decision to dismiss in an ill health case remains a management decision and not a medical one.
Lease a Finance Director 