Redundancy is a form of dismissal and is fair in most cases. Even where the Acas code does not apply, employers shou… A termination of this type would only be appropriate if there is little likelihood that the employee will ever fully recuperate and be able to return to work. 3: In the absence of any medical evidence, there were no reasonable grounds for the Council’s belief that he employee was unlikely to return to work in the foreseeable future. The Council referred him to Occupational Health advisers, but they proved to be unhelpful, and each Occupational Health report was almost identical. In this case, the circumstances which led to the employee’s dismissal tell a sad tale. It usually means the same as being sacked or fired. The EAT’s decision confirms that employers that dismiss on the ground of ill health, where there is no misconduct or culpable poor performance, are not bound to follow the Acas code. He was given the opportunity to appeal against this decision but chose not to. In the case of BS v Dundee City Council, BS had been off sick for 272 days with stress and depression. He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). His appeal against the decision was unsuccessful. If he says that he is no better and does not know when he will be able to return, it works against him. An employee can be both fairly and lawfully dismissed, as long as the employer has a valid reason, has made any reasonable adjustments where applicable, and has followed a fair process. C submitted a claim to the Employment Tribunal arguing that if it was reasonable to have suspended him whilst an investigation was undertaken, it was also reasonable for the School to have continued the suspension whist the occupational assessment was obtained. Before dismissing an employee for reasons of ill health an employer should find out the current medical position. I am writing to confirm that, following the meeting held on [DATE], it was decided that your employment with [NAME OF EMPLOYER] should be terminated on grounds of ill-health. The EAT has provided a useful summary of the law in relation to ill-health capability dismissals and there are points for employers to bear in mind when deciding whether to dismiss: 4: Since there was an inconsistency between the medical advice and the employee’s own understanding of his medical condition, no reasonable employer would ignore the advice and dismiss an employee with 35 years’ service without first clarifying the true medical position. Identifying the correct employer in tribunal claims, The EU-UK Trade and Cooperation Agreement (TCA) and the implications on business immigration, Limited Liability Partnerships: Salaried Member rules, Remain on sick pay until 20 May 2006 and then remain employed, but off-work with no entitlement to sick pay until retirement. So when will a dismissal for ill health be fair? There was no discussion about obtaining a final certificate from his GP. }); The blame of the gamePrint – Issue 162 | Article of the Week googletag.enableServices(); Dismissal due to ill health - a recent Employment Appeal Tribunal (EAT) decision has helpfully clarified the question of whether or not an employer should follow their disciplinary procedure when dismissing an employee on the grounds of ill health. Redundancy. This article will highlight the aspects surrounding termination of employment based on ill health and injury. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement. His contractual notice at 1 month is more than 1 week longer than this, so the employee is not entitled to be paid. It is a common misconception that dismissal due to ill health is automatically unfair or unlawful. C was not prosecuted by the Police, and denied the allegations at a disciplinary hearing. Meanwhile, employee B has been employed for two years when they are dismissed due to long-term ill health. The Employment Tribunal found that the dismissal was unfair due to a number of defects with the procedure. The Council asked him to return to work a month later and explained that they would consider his dismissal if he did not. Unsurprisingly though, what constitutes a fair procedure for ill health dismissals is more complex than it is for, say, misconduct or redundancy. 01454 292063   advertise@thehrdirector.com, Online However, employers are often afraid to approach issues of ill-health pro-actively, for fear of falling foul of disability discrimination legislation and having to undertake lengthy 'risk-assessment' procedures and pay for expensive medical examinations. The dismissal of employees on long-term sickness absence can put an employer at risk of a claim for unfair dismissal and/or disability discrimination. The reason for the EAT decision is based on the considerable injustice that might occur if an employer dismissed a sick employee who might be entitled to a retirement pension, without having considered that option. If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid. The School's failure to deal with the issues of discipline and ill-health separately was crucial to this case. Receive more HR related news and content with our monthly Enewsletter (Ebrief). calling Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. However, case law has established that it requires three key elements: (1) obtaining medical evidence, (2) consultation and (3) considering alternative employment. Are adjustments required under the Equality Act 2010? An employer will often need to consider complex assessments of medical evidence, potentially pry into an employee’s private life, and deal with the prospect of taking someone’s livelihood away at a time in their life when they are most vulnerable. The difficulty that arises is how to address the issue. }); We interview Genevieve Glover, Group HR Director - Barchester Healthcare. The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply where someone is dismissed from work purely due to ill health. Occasionally an employee may have to leave your employment because of long-term ill health.Sometimes the employee will simply choose to resign. Dismissal due to ill health: Benefits. An employer will often need to consider complex assessments of medical evidence, potentially pry into an employee’s private life, and deal with the prospect of taking someone’s livelihood away at a time in their life when they are most vulnerable. Following that meeting, the Council decided to dismiss. googletag.pubads().enableSingleRequest(); They may resign, or you may have to consider dismissing them. The Court of Session found that the Employment Tribunal’s decision was lacking in four material respects – the tribunal: (1)        Did not expressly address the question of whether the employer could be expected to wait longer before dismissing. ARTICLE BY: Viola Lloyd | Published: 12 April 2018. var googletag = googletag || {}; googletag.cmd.push(function() { Article By Charles Wynn-Evans, Partner and Kate Anderson, Senior Associate at Dechert LLP. It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. And cover topics including: Trends for 2021, The Skills Gap, Virtual Collaboration & Rise of Employee Autonomy. We should therefore be grateful for the recent decision of the Scottish Court of Session in BS v Dundee City Council (2013) CSIH 91 which although not, strictly speaking, binding on Employment Tribunals in England and Wales, provides some very welcome guidance in relation to this difficult exercise. © Michelmores LLP is a Limited Liability Partnership, authorised and regulated by the Solicitors Regulation Authority and registered in England and Wales under Partnership No. First appealed the decision of the Tribunal, but the Employment Appeals Tribunal dismissed the appeal, holding that: "...as a general rule, when an employee is absent through ill-health in the long-term, an employer will be expected, prior to dismissing the employee, to take reasonable steps to consult him, to ascertain by means of appropriate medical evidence the nature and prognosis for his condition, and to consider alternative employment... ...where, however, an employer provides an enhanced pension on retirement through ill-health, it seems to us that an employer will also be expected to take reasonable steps to ascertain whether the employee is entitled to the benefit of ill-health retirement...". When he next met with the Council, he told them he was taking sleeping tablets and antidepressants, and could not envisage returning to work whilst on medication. The registered office is Woodwater House, Pynes Hill, Exeter, EX2 5WR. Should it wait until the employee has exhausted the appeal process with the Financial Ombudsman? Two recent cases have dealt with two separate aspects of an employer's consideration of ill-health issues when addressing an employee's inability to perform the requirements of their job. Dismissal because of a disability may be unlawful discrimination. H appealed the dismissal and was assessed by an independent medical practitioner who found that H's condition could not be classified as permanent and that it would be likely that H would be able to undertake sedentary duties before October 2006. The occupational health assessment and additional medical advice determined that C suffered from a psychotic illness. 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