Long Term Sick Leave. When can you dismiss?

With UK businesses losing an estimated 137 million working days to sickness or injury in 2016 it is clear to see why employers are starting to take sickness absence more seriously. The statistics, which equate to approximately 4.3 days for every worker in the UK, are estimated to cost UK businesses upwards of £15bn every calendar year.

One of the more common questions we receive here at BPE relates to individuals on long term sick leave and situations where medical/occupational health reports are unclear as to whether or not the employee will ever return to work. On 15 March 2017, the Court of Appeal released the judgment on the case of O’Brien v Bolton St Catherine’s Academy which provided some much needed clarity on the topic.

In the above case, the Claimant (Ms O’Brien) was assaulted at work by a student and remained on sick leave for over a year with stress and anxiety. Unfortunately, following the first occupational health report, the Claimant was far from cooperative in assisting in the preparation of a follow up report and her prognosis remained unclear after 14 months’ absence. Following repeated requests by the employer for information from the Claimant, the employer decided to follow its medical incapacity meetings procedure without the follow up report. These meetings resulted in the Claimant being dismissed.

At the subsequent dismissal appeal meeting, the Claimant produced a fit note from her GP stating that she was now fit to work. The fit note itself lacked any sort of detail apart from a suggestion that the Claimant had been recommended a new course of treatment. The Academy, clearly frustrated that the Claimant who had been uncooperative during the previous 14 months did now not only cooperate but also claim to be fit to work, rejected her appeal and upheld the dismissal.

In the Employment Tribunal the Claimant successfully argued that she had been unfairly dismissed and suffered discrimination/unfavourable treatment relating to her disability. In its judgment, the Tribunal stated that although the dismissal by the Academy related to legitimate aims which, in a different scenario may have been deemed to be fair, the failings of the Academy at the time of the appeal rendered the dismissal unfair.

In particular the Employment Judge was critical that the Academy could not evidence the adverse impact of the Claimant’s absence in terms of costs or extra burden to the business. Turning to the fit note that was produced at the appeal, whilst the Tribunal treated the same with enormous scepticism, the fact that the Academy did not make further enquiries with occupational health following receipt of the fit note added weight to an unfair dismissal and discrimination claim due to unreasonableness. Finally, the Employment Judge was critical that the Academy been unable to evidence the necessity to dismiss at that point in time. If the Claimant had been absent for so long, what harm would waiting a short period to verify the fit note or the Claimant’s fitness to work have to the Academy? 

Whilst the Academy was successful on appeal to the Employment Appeal Tribunal, the Claimant was ultimately successful on the same facts at the Court of Appeal.

This judgment gives good guidance on what should be evidenced when dismissing an employee on long term sick leave. Whilst the Court of Appeal judgment went into detailed discussion of the law relating to the overlap of reasonableness tests between unfair dismissal and discrimination relating to a disability, the key facts for most readers are the criticisms of the Academy procedure which I have mentioned above.

Top Tips when dealing with long term sickness:

• Comply with any relevant sickness or absence procedures contained within your company handbook and employment contracts.
  
  
• Implement, as far as practicable, any reasonable adjustments recommended in any occupational health or other medical reports.
  
  
• Agree a timetable to keep in contact with the employee.
  
  
• Keep medical evidence under regular review (including, if applicable,  at the dismissal appeal stage).
  
  
• Consider the importance of the employee and/or the job role they undertake. A good paper trail should be kept as to the impact the employees continued absence including the cost and disruption it is causing to the business.
  
  
• Consider whether the employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal. This may, in certain circumstances, extend to retraining the employee.
  
  
• If the employee has been absent long-term and is unlikely to return in the foreseeable future, consider claiming under terms of any permanent health insurance policy or ill health retirement scheme (additional medical evidence may be required for such a claim).
  
  
• Before taking a decision to dismiss, consider circumstances such as age and length of service of the employee.
  
  
• If you are happy that all of the above have been satisfied, identify the correct potentially fair reason for dismissal. Is it capability or SOSR?
  
  
• Keep a good paper trail detailing why the dismissal is being taken at that time and why the business could not wait any longer.

What should you be doing now?

Dismissals for long term sickness absence are normally risky. Currently there is no cap in the UK as to the value of compensation that can be provided to a successful claimant in discrimination claims.  Judgments for millions of pounds are not unheard of.

It is critical therefore that your business ensures proper processes are followed in relation to not only matters involving those employees off on long term sick, but any allegation of discrimination in the workplace.

What does this mean for you or your business?

All management and HR professionals should be aware of the limitations and timeframes involved when dealing with employees off on long term sick. Whilst it is easy for management to feel frustrated at HR professionals for what they perceive as a lack of progress in such matters, cases such as the one above show the risk of the “quick fix” approach to such situations.

Recommended Reading
The judgment on O’Brien v Bolton St Catherine’s Academy can be read here

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.