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Dismissal on the grounds of ill-health

We are advising increasingly on employees going off on long term sick leave. Helpfully, a recent Scottish case (BS v Dundee City Council) highlights the issues that an employer should take into account when dealing with an employee on long-term sick absence.

The employee from the case in question suffered from anxiety and depression and remained off sick for a year until his dismissal. The employer believed that the employee would not return to work in the foreseeable future and therefore took the decision to end their relationship. The employee then felt well enough to bring a claim for unfair dismissal, which was initially successful. However, this finding was later overturned on appeal and the claim has been referred back to the Employment Tribunal to reconsider.

As part of its judgment, the appeal Court offered useful guidance to employers on dismissing employees for long term ill health. This included asking questions such as:

Whether the employer could be expected to wait any longer for the employee to return and if so, how much longer? This would include considering sick pay entitlement, the ability to cover work/use temporary staff and the size of the organisation and the impact of an ongoing absence.

Whether reasonable steps had been taken to discover the employee’s medical condition and likely prognosis. Relevant questions must be asked and answered, but the employer is not required to pursue a detailed medical examination.

Whether the employee had been consulted with and their views taken into consideration (in the context of any medical opinion). Naturally, if an employee suggests that they are anxious to return to work and hope to do so in the near future, this will stand them in better stead than if they report that they are no better and do not know whether or when they will be able to come back.

Overall, this case provides an important reminder to employers that they need to carefully balance their business’ needs against the nature of the employee’s ill health, the prospects of them returning to work and, in particular, whether it would be reasonable to wait longer. Therefore, during any welfare meetings it is vital to gain the employee’s view on their fitness and obtain medical reports (wherever possible).


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

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