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Key question in long term ill health dismissal cases is whether employer can wait any longer

In Monmouthshire County Council v Harris, H is disabled due to four long term impairments, depression, sinusitis, asthma and an underactive thyroid. She was allowed to work from home. H felt her new manager was not supportive.

In Monmouthshire County Council v Harris, H is disabled due to four long term impairments, depression, sinusitis, asthma and an underactive thyroid. She was allowed to work from home. H felt her new manager was not supportive. She went off work due to ill-health and did not return. Occupational Health classified H’s conditions as chronic and no indication could be given as to when or whether she could return to work. HR met with H twice during her absence to discuss the situation. H was told the Council could not support her continuing absence indefinitely. Eventually, the Council dismissed H. Subsequently H applied for ill health retirement, with her GP indicating “I think that there is a very remote chance of a return to work”. Occupational Health also indicated H was unfit for work in any capacity.  

An employment tribunal (ET) upheld H’s unfair dismissal claim, principally because the Council had not properly warned H that she may be dismissed and there had not been sufficient consultation. The ET also upheld H’s discrimination arising from disability claim. H had been dismissed because of something arising in consequence of her disability – her level of sickness absence. The Council had a legitimate aim – achievement of an appropriate use of public funds in discharge of public duties and the need to consider stresses placed on the remaining employees – but dismissal was not a proportionate response. Further consideration should have been given to adjustments allowing H to work from home. The EAT upheld the Council’s appeal against both findings.

On the question of unfair dismissal, this was an absence-related, capability case. Therefore, the guidance as to ‘reasonableness’ set out in BS v Dundee City Council [2014] IRLR 131 CS, applied i.e. (i) obtain proper evidence about the medical condition and likely prognosis; (ii) consult with the employee and take his or her views into account; and (iii) address the key question: can the employer be expected to wait longer? But the ET had failed to engage with that fundamental question, particularly given the medical prognosis and the pressures the Council faced at that time.

As for the disability claim, the ET was entitled to take into account the issue of reasonable adjustments, but also had to factor in its own finding that there was no continuing obligation to do so in the circumstances. Furthermore, the ET should have considered that the medical evidence had continued to provide an uncertain and pessimistic prognosis in terms of H’s ability to return to work. 

The case serves as a reminder of the three key components in the procedure to be adopted when deciding whether or not to dismiss in long-term ill health cases. The case also emphasises the importance of gaining an accurate understanding of the medical situation, as the decision has to be driven by informed medical opinion, particularly where disability is involved. Here, sadly for H, a return to work, whatever the circumstances, appeared very unlikely and this can be very persuasive evidence that little more can be done, either in terms of making reasonable adjustments in disability cases, or being expected to wait any longer before dismissing. 

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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