Ensure procedure is fair – know the facts

Claire Maclean

WHILE sickness absence has been falling over the last decade, according to research by the Office for National Statistics, employers can still face challenges in dealing with staff that experience long-term health problems.

What factors should employers take into account?
Before embarking on a dismissal for long-term absence, it is important to establish the medical position of the employee and consult with the individual in question. If appropriate, this may also be the time to consider alternative employment or the need to make reasonable adjustments to the employee’s role. Frequently, the question as to how long a job could be left open will arise but there is no predefined period of time that an employer has to wait before making the decision that an employee will never be fit to return to work. However, a fair procedure must have been followed. In the case of BS v Dundee City Council (2013), the Court of Session decided that the critical question is “whether any reasonable employer would have waited longer before dismissing the employee”. In answering that question, it is important to consider whether the employee has exhausted sick pay; the availability of temporary cover; the administrative costs of keeping the employee on the books and the size of the organisation.

How much consultation is needed?
Consultation with the employee is a crucial part of the dismissal process. This allows both parties to have an open and transparent discussion about the organisation’s need for the work to be done, against the background of the employee’s need for time to regain full health. In many cases, the consultation process may even bring new facts and circumstances to light, which the employer was unaware of and that may have an impact on the final decision. Importantly, it will also allow the member of staff to get an alternative medical opinion on the prognosis for a return to work, in cases where an individual may disagree with the employer’s medical position. Only in exceptional circumstances will a consultation not be necessary.

What role does medical advice play in the decision making process?
The employer must take reasonable steps to establish the medical position and this is another important step in the dismissal process for long term absence. However, it is not necessary for the employer to pursue detailed medical examination, as the decision to dismiss is not a medical question but one to be made on the basis of the available medical opinion. In the case of Gallop v Newport City Council (2013), an occupational health report found the Mr Gallop’s medical condition did not meet the legal definition of disability and he was dismissed by the council. The Court of Appeal found that while an employer should obtain appropriate guidance from the medical profession, it is up to the employer to make a factual judgment on whether or not an employee is disabled and should not place reliance solely on external medical advice. Where an employee refuses to co-operate with requests to obtain medical information, the employer can still reach the decision to dismiss, based on the evidence available.