Business Law: Marie Allen on how employers should approach long-term sickness absence

Marie Allen

Marie Allen - Credit: Archant

How long to wait for a sick employee to return to work is a frequent question for employers. There is no simple answer but, helpfully, the Court of Session has provided some guidance in the case of BS v Dundee City Council.

An employee with 35 years service was dismissed following a long-term sickness absence. He claimed unfair dismissal and won.

The council obtained medical advice which suggested that the employee should be able to return to his role within one to three months.

The employee, on the other hand, said that he didn’t feel ready to return to work and felt that his health was not much better.

On this basis the employee was dismissed because he had already been warned that dismissal was a possibility, but the tribunal said that no reasonable employer would have dismissed given the doctor’s advice.

The Council appealed and in the appeal hearing the court said that the question of how long an employer should wait before dismissing an employee on long-term ill health absence would have to take into account the following:

: : Could the employer be expected to wait any longer and if so for how long? Relevant factors could include whether the employee has exhausted their sick pay entitlement, whether the employer could engage temporary staff to cover the employee’s work and the cost of that, and the size of the organisation and resources available.

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: : Was the employee consulted and their views properly balanced against the medical advice? The fact that a doctor declares an employee fit to work or otherwise is not conclusive; the employee’s views must also be taken into account in reaching a decision, e.g. dismissal might be unfair if the doctor says the employee won’t be fit to return to work in the foreseeable future but the employee disagrees.

: : Were reasonable steps taken to ascertain the medical condition and prognosis?

The court also said that an employee’s past conduct in relation to sickness should also be looked at ? does this indicate that the employee will try to return to work as soon as possible or drag the absence out?

There is, therefore, no fixed period of sickness absence after which an employer can safely dismiss. Every case will turn on its own facts. It is best to take advice before you make any final decisions.

: : Marie Allen is an employment law solicitor at Gotelee Solicitors.