- 4th March 2014
- Posted by: Seatons Solicitors
- Category: Articles, Employment Law, Uncategorised
There has been recent case law which has clarified somewhat the situation whereby an employee has been absent from work for a prolonged period of time due to ill health.
In the case of BS v Dundee City Council, the employee was absent from work for a period of 272 days suffering with depression and stress. The employer requested that an occupational health assessment was completed but this gave no indication as to when the employee would be able to return to work.
In August 2009, the employer met with the employee and stated if he did not return to work by the 14th September, they would have to consider dismissing him. At the start of September, the employee had a further occupational health test which gave the opinion that the employee would be able to return to work within 1 to 3 months.
Following this, the employee did not attend work on the 14th September and employer decided to dismiss him on the grounds of capability. The employee appealed this decision but was not successful so claimed unfair dismissal against his former employer.
The Employment Tribunal held that the dismissal was unfair. The employer should have continued a more thorough investigation (influenced by the employee’s 35 continuous service) and obtained a further medical report. However, the employer appealed this decision and the case went to the Inner House.
The Inner House stated that the Employment Tribunal had not approached the case correctly. It stated that the critical question for the employer to consider was whether it is reasonable for them to wait any longer. This should be approached giving thought to the availability (and cost) of temporary workers, whether the employee has exhausted sick pay, the administrative costs involved and the size/resources of the employer.
The Inner Court further stated that the employer should take notice of the employee’s point of view as well as the medical evidence provided. This cases provides some guidance on the matter of long term ill health. The significant factor is the medical and employee’s view of when they can return to work balanced alongside the size and resources of the employer.
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