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Investigating sickness absence
A recent EAT decision in Dundee City Council v Sharp, has confirmed that an employee’s length of service is irrelevant when considering whether an employer has acted reasonably in dismissing an employee on long term sick leave. The EAT also confirmed that the ET was incorrect in finding that there should be a higher duty of investigation in dismissals that involve an employee’s ill health. The EAT found that fairness of procedure was no more important in these cases than it is in others.
Prior to his dismissal in September 2009 for capability reasons, Mr Sharp had been employed by Dundee City Council for 35 years as a joiner. He had been off work since September 2008, and was diagnosed with depression and anxiety. He was signed off by his GP for eight weeks at a time until immediately prior to his dismissal when he was signed off for four weeks.
During his absence from work Mr Sharp received counselling and the council paid for him to be assessed at regular intervals by an occupational health service. The council was provided with reports of these assessments which confirmed that, although Mr Sharp was receiving the correct medical treatment and advice, there had been no improvement in his symptoms. Mr Sharp would attend meetings with the council after each occupational health assessment.
At one such meeting in the middle of August 2009, Mr Sharp confirmed that he was still on a high dose of antidepressants and sleeping tablets. He also confirmed that he did not see that he could return to work while on this level of medication. The council gave him a return to work date that coincided with the expiry of his most recent GP certificate in mid-September 2009. Mr Sharp declined to appeal this date. An occupational health report from September 2009 confirmed that Mr Sharp’s health was improving and that he may be able to return to work within one to three months. Mr Sharp was not considered to be “permanently incapacitated”.
When Mr Sharp did not return to work in mid September 2009, he was invited to a meeting where he confirmed that he was not fit to work and that his health had not improved at all. He was subsequently dismissed. Mr Sharp took his claim to the ET who found that he had been unfairly dismissed and that the council had adopted an unfair procedure.
In upholding the council’s appeal, the EAT held that an employer was not obliged to carry out a more thorough and lengthy investigation when dealing with a long serving employee. The EAT held that the same level of investigation should be applied to all investigations irrespective of length of service. The EAT also found that there was no need for a higher standard of enquiry in long term sickness cases. Mr Sharp’s own assessment of his health was also held to be important.
When an employer is considering the dismissal of an employee who is on long-term sick leave, it should ensure that it:
consults with the employee
takes steps to discover the employee’s true medical position obtaining medical evidence if necessary and ensuring this is up-to-date
considers whether the employee is disabled and whether any reasonable adjustments can be made which would enable the employee to return to work
considers whether the employee could take up alternative employment and any other possible options which would avoid dismissal
considers if permanent health insurance or ill health retirement is available
takes a reasonable view as to whether it should wait longer before deciding to dismiss the employee
For further information on any of the points raised in this article, please contact a member of our employment team.