By Safia Tharoo
Many employers have difficulties dealing with the ramifications of employees who are on long-term sick leave. They struggle to manage their absence and are unsure how much they need to investigate the matter and at what point they can decide it is reasonable to dismiss. All these factors were recently considered by the Scottish Appeal court in BS v Dundee City Council  CSIH 91 and some clear guidance provided.
Mr BS was employed by the Council for 35 years. In 2008 a woman with whom he had been having a long term affair made some serious allegations about him to the police, causing him to separate from his wife. The combination of these factors led to him suffering from depression and anxiety and he was signed off work by his GP.
He remained off work from September 2008 until September 2009 when his employment was terminated on grounds of ill health. Mr BS was referred to the Council’s occupational health services and was seen regularly by them and by a member of the Council’s personnel department.
However, by June 2009 the Council was concerned that the reports they were receiving did not seem to be demonstrating any improvement in Mr BS’s condition and they were unclear as to how long that state of affairs might continue and sought a meeting in July to obtain more information. Therefore, at a further meeting in August, he was advised that he was being given a return to work on September 14, and that if he did not return to work on that date consideration would be given to his dismissal. He was told that there would be a review appointment with occupational health services prior to his return, and a phased return to work was discussed.
At that review appointment, the occupational health doctor stated that Mr BS’s health was improving, that he was not permanently incapacitated, and that he hoped that Mr BS would be able to return within one to three months. Mr BS did not return to work on September 14 as he was signed off sick by his GP for a further four weeks.
At a meeting with the Council a few weeks later, he told them that he was still taking antidepressants and sleeping tablets that made him sleepy in the day, and that he was not ready to return to work. He did not feel that he was any better since their last meeting.
The Council considered that Mr BS had been absent for over a year and there appeared to be no future prospect of a firm date for his return. A decision was therefore taken to dismiss him on grounds of ill health.
Mr BS took his case to the Employment Tribunal who found in his favour, but that decision was overturned on appeal to the Employment Appeal Tribunal. Both decisions were criticised by the Scottish appeal court who gave guidance on the legal principles and directed that the case should be reconsidered in light of their comments.
The key question in cases of this nature is whether the employer can be expected to wait any longer before making a decision to dismiss. Factors which would be relevant would include the length of the absence, the impact of the absence on the employer’s business, and the cost of the absence to the employer. In this case for example, the Council had a bank of temporary staff who could fill posts as required, at the same cost as a permanent employee, and Mr BS had exhausted his right to sick pay and was no longer receiving any salary. While there were of course the administrative costs of his absence to consider, these were likely to be minimal. In addition, the employer was a large organisation which could absorb these costs more easily than a smaller employer. Set against that was the clearly unsatisfactory position of having an employee on very long term sick leave. This is a balancing exercise that needs to be considered thoroughly.
The court also emphasised the need to consult the employee and take his views into account. They noted that this was a factor that could operate both for and against dismissal. If the employee stated that he was anxious to return to work as soon as he could, that operated in his favour; but if he stated that he was no better and did not know when he could return to work, that was a significant factor operating against him.
Employers are often concerned about just how much information they need to obtain about the employee’s medical condition and prognosis: the court noted that whilst there is a need to take steps to discover the employee’s medical condition and his likely prognosis, this merely requires the obtaining of proper medical advice and does not require the employer to pursue a detailed medical examination.
Safia Tharoo, Barrister, 42 Bedford Row, London