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What to consider in an ill-health dismissal

In Monmouthshire County Council v Harris, the EAT had to consider whether it was fair to dismiss a disabled employee where medical opinion indicated it was unlikely she would return to work and her absence was placing stress on her colleagues.

Harris was disabled due to four long term impairments: depression, sinusitis, asthma and an underactive thyroid. Her working arrangements were adjusted to allow her to work from home, but she felt her new manager was not being supportive, for example, by asking her to attend a meeting in the office at short notice. She went on sick leave due to ill-health and did not return.

An occupational health report classified her conditions as chronic and could give no indication as to when, or whether, she could return to work. The HR department met with Harris twice during her absence to discuss the situation, and told her that the local authority could not support her continuing absence indefinitely. Eventually she was dismissed. Harris subsequently applied for ill-health retirement. Her GP indicated that the chances of her returning to work were “very remote” and the employer’s occupational health department also indicated that she was unfit for work in any capacity.

An employment tribunal upheld Harris’ unfair dismissal claim, principally because the local authority had not properly warned her that she might be dismissed and there had been insufficient consultation. The tribunal also upheld her claim for discrimination arising from disability as she had been dismissed because of something arising as a consequence of her disability - her level of sickness absence. The employer had a legitimate aim for dismissing her – the appropriate use of public funds and the need to consider the stress placed on Harris’s colleagues by her absence – but dismissal was not a proportionate response. The employer should have given further consideration to the adjustments allowing Harris to work from home. The employer appealed.

The Employment Appeal Tribunal upheld the local authority’s appeal against both findings. On the question of unfair dismissal, this was an absence-related, capability case. Therefore, the guidance as to the ‘reasonableness’ of the decision set out in the case BS v Dundee City Council [2013] applied. Before deciding to dismiss an employee on ill-health grounds, employers should:

  • obtain proper evidence about the employee’s medical condition and likely prognosis
  • consult with the employee and take his or her views into account 
  • ask whether a reasonable employer could be expected to wait any longer before dismissing the employee.

The EAT said the tribunal had not asked the last and fundamental question, particularly given the employee’s medical prognosis and the pressures the local authority faced.

As for the disability claim, the tribunal could take into account the issue of reasonable adjustments, but had to factor in its own finding that there was no obligation to continue to make reasonable adjustments. And it should have considered the pessimistic medical prognosis on the claimant’s ability to return to work.

Added: 07-12-2015

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