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Managing Employee Sickness Absence

Meredith Hurst Wednesday, January 15, 2014

Employee sickness absence is something which nearly every employer, no matter what its size, may encounter at some point. It can become a serious problem for an organisation if not properly managed and it is essential that employers know what their legal rights and obligations when dealing with sickness absence.

Two recent Court decisions have provided useful guidance on what employers should do to ensure that they act lawfully when dismissing an employee on the ground of sickness absence. Both deal with the question of what information an employer should be looking to obtain when considering dismissing an employee in these circumstances.

The first decision,BS vDundeeCityCouncil[2013] CSIH 91is a judgment of the Inner House of the Court of Session inScotland. It concerns a local authority which dismissed an employee with 35 years service because of a prolonged period of sickness absence caused by depression and anxiety. An Employment Tribunal found the dismissal to be unfair and the Council appealed. The Court of Session stated that the existing case law established that in every case of sickness absence the basic question to be determined, for the purposes of whether the dismissal was fair or unfair, was whether in the circumstances the employer could be expected to wait any longer and if so for how much longer. Furthermore, it is clear that an employer must obtain information which can reasonably be obtained before deciding whether or not to terminate employment. The amount of type and information which it will be reasonable to obtain will depend on the circumstances of each case, although generally an employer should consult with the affected employee about their medical condition and should take reasonable steps to obtain a medical assessment of the employee's condition. However, this will not in every case involve the obtaining of a detailed medical report. Having obtained the information which it should obtain from the employee and from any medical assessment the employer should take this into account in addition its own requirements for the issues caused by an employee on lengthy sickness absence to be dealt with.

InBS vDundeeCityCouncilthe Court of Session held that the Employment Tribunal had not fully addressed whether the employer had taken the steps which it should have taken before deciding to dismiss and remitted the case back to the Employment Tribunal to reconsider the case in the light of the guidance in the Court's judgment.

The judgment inBS vDundeeCityCouncildoes not really establish any new points but is a helpful and welcome reminder of an area of employment law that can significantly affect a great many employers at one time or another. The Court of Session also made an interesting point in relation to whether an employee's length of service was something an employer must take into account when deciding if it should dismiss an employee because of long term sickness absence. The Court stated that in misconduct cases length of service would often be relevant to the fairness of a dismissal because a lengthy period of unblemished service could be an indicator that any misconduct was a temporary aberration and would not be repeated. In sickness cases the position was not quite so clear cut, although it may be something that would indicate that the employee was likely to return to work as soon as they could. However, it would not be correct to say that length of service was something that should automatically be considered in order for a dismissal to be fair in every case in which an employer is dismissing on the ground of sickness absence.

Another recent case, this time a judgment of the Court of Appeal of England and Wales, provides further guidance on the information which an employer should be obtaining on an employee absent on sick leave. InGallop vNewportCityCouncil [2013] EWCA Civ 1583the employee claimed disability discrimination after he was dismissed following a lengthy period of sickness absence caused by anxiety and depression. In order for an employer to be liable for disability discrimination it must be aware of the employee's disability. The Employment Tribunal dismissed the claim on the basis that the employer did not have knowledge of the employee's disability at the time the alleged discrimination occurred.

The Employment Tribunal reached its conclusion on the employer's knowledge of the employee's disability on the basis of a report on the employee from the employer's Occupational Health adviser, which diagnosed that the employee was suffering from stress but that,"he is not covered by the DDA"(the Disability Discrimination Act being the legislation in force at the time). The Employment Tribunal held that the employer could reasonably rely on the adviser's report. The Tribunal's judgment was upheld by the Employment Appeal Tribunal.

The Court of Appeal considered the Occupational Health adviser's report and noted that it contained assertions that the Claimant was not a disabled person under the DDA but no reasoning to support these assertions. Nor did the report address the matters which the DDA stated were relevant in determining whether a person was disabled for the purposes of the Act. Lord Justice Rimer in the Court of Appeal declared that the Occupational Health report was"worthless"for the purposes of determining whether the employee was covered by the DDA and that in light of its manifest inadequacies the employer should not have unquestioningly accepted the report but should have made its own judgment on whether its employee was a disabled person. In the circumstances it was aware or should reasonably have been aware that the employee was disabled and the Employment Tribunal was therefore wrong to dismiss the claim on that basis.

The judgment is a reminder that many sickness absence cases involve consideration of not only unfair dismissal law but disability discrimination, the provisions relating to which are now contained in the Equality Act 2010 (it appears that the Claimant inBS vDundeeCityCouncildid not bring a disability discrimination claim). Even if it is not certain that an employee is a disabled person under the Equality Act 2010 an employer should certainly make careful enquiries into the issue and has to make their own factual judgment on whether the employee is protected by the legislation. The consequences of reaching a wrong decision on this could be serious. An employer cannot simply rely on the opinion of a medical adviser. As the question of whether an employee is disabled is a legal rather than a medical one it will often be sensible for an employer to take legal as well as medical advice.

 

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