If an employer is responsible for an employee’s ill health, or has acted in a manner which has exasperated an employee’s ill health, these are relevant considerations that an employer should take into account when they are deciding whether it is reasonable to dismiss an employee on the basis of their incapacity due to ill health, and when that dismissal should be put into force and effect.
This was the view of Employment Appeal Tribunal in the case of L –v- M when the court confirmed that not only should an employer be able to evidence that capability was a fair reason for its decision to dismiss its employee but also that a fair procedure was used. That fair procedure will include taking account of the cause of the ill health or the exasperating of the employee’s ill health by the employer’s actions.
As long ago as 2007, the Court of Appeal pronounced that an employer could fairly dismiss an employee for ill health capability and that this included circumstances where the employer had been responsible for the employee’s illness. The court held that the key question was whether the employer had acted reasonably in all the circumstances. The court held the view that where an employer had been responsible for the ill health or exasperated it, that there was onus on the employer to make greater efforts to try to find alternative employment for the employee or to allow a longer period of sickness absence than it usually would. Guidance was given in the case of McCaddie –v- Royal Bank of Scotland.
Matters which will be relevant to the making of a reasonable decision in relation to an employee on long term ill health absence are (a) employee’s length of service (b) the employee’s illness and the likely prognosis (c) the prospect of the employee returning to work (d) the likelihood of the illness re-occurring (e) the need for an employer to have someone to do the work during the employee’s absence and the effect that absence has on the work force and customers (f) the extent of the communication between the employer and the employee about the consequences of the employee’s long term absence.
Therefore the fact that an employee’s ill health was either caused or made worse by the employer’s actions will only be one of the circumstances which must be taken into account when a court or a tribunal is considering whether the dismissal was fair or not in all the circumstances. The important lesson to be learnt from the case of L –v- M is that in the circumstances where the employer has some responsibility for the illness it must consider longer periods of sickness as being appropriate before making the decision to terminate.
In the circumstances that the employee’s illness is a disability under the Equality Act then further thought needs to be given to avoid any suggestion that there has been discrimination due to the disability. That is a separate and complicated issue on which an employer should always seek legal advice.
If you have issues in relation to employees who are on long term sick, or, if you are an employee who is in a similar situation our employment team would be happy to discuss your case with you further and you should feel free to contact Richard Keen on 01753 876800.