When I am asked to defend a claim for unfair dismissal involving an employee who has been dismissed due to long-term ill-health absence my first step is always to map out the chronology of the procedure followed. In any dismissal it is essential that an employer can show that it has followed a fair procedure in order to demonstrate that an employee has been treated justly. However, this is particularly pertinent when dismissing on the grounds of ill health. Procedure is key in these circumstances and can often place an onerous administrative burden on an employer.

When considering the procedure followed, key aspects which a Tribunal will focus on when assessing a fair process include:

• a thorough medical investigation;
• consultation; and
• consideration of alternatives to dismissal i.e. redeployment, adjustments, part time working etc.

A failure to adequately carryout each of the above steps will expose an employer to an increased risk of a finding of unfair dismissal and potentially other claims such as disability discrimination.

Medical Investigation

No decision to move to dismissal should be made without first taking steps to ascertain the true medical position of the employee. In most instances this will involve guidance from Occupational Health or a specialist within a relevant field. A Tribunal considering any dismissal due to long term illness will expect that an employer has obtained a medical report confirming that an employee will not be capable of returning to work within a reasonable time frame.  As stated in Spencer v Paragon Wallpapers Ltd [1977] ICR 301:

"The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?"

What amounts to a reasonable time is very much fact specific and depends on various factors such as the nature of the job, the specific difficulties encountered by the employer in covering for the absence, the requirement for the role to be performed, the employees length of service and the size and administrative resources of the employer.

Consultation

It is essential that an employer can evidence that it consulted with an employee throughout their absence to establish that it has a thorough understanding of the employee's medical position and to ensure that the employee is afforded an opportunity to comment on any medical reports obtained. An employer must keep clear records of meetings and the process followed which should include:

• Discussions at the start of the illness and periodically throughout its duration and informing the employee if the stage when dismissal may be considered is approaching;
• Contact between the employer and the employee to ensure both sides are fully informed and to ensure that any medical reports have not been misinterpreted;
• Consideration of the employee's opinion on his/her condition and potential return to work date; and
• Consideration of the employee’s view on ways of getting them back to work i.e. reasonable adjustments, redeployment.

Alternatives

Where an employer is considering terminating an employee on the grounds of ill-health it is always important to first consider alternatives.  That is true in any case, although especially so if the employee is suffering from a disability within the meaning of the Disability Discrimination Act 1995, such that the employer's specific statutory duty to consider reasonable adjustments has been triggered. An employer must be able to demonstrate that it has given consideration to what adjustments it can make to help an employee back to work. What adjustments/options are appropriate will vary from case to case -  however ideally an employer will have sought occupational health advice as to what adjustments (if any) might facilitate an employee’s return, as well as canvassed the employee’s own views.

An employer must also demonstrate that it has considered what redeployment opportunities are available within its organisation and whether they are suitable to allow the employee to return to work. Where no suitable roles exist, this should be explained to the employee and recorded.

In addition to the above, no decision to dismiss should be taken without first checking if an employee is eligible for, and willing to apply for ill health retirement as an alternative to dismissal. An employee may also have the benefit of Company permanent health insurance benefits which they may be deprived of if dismissed, and this should be checked to avoid a potentially significant claim against the employer for breaching an implied obligation not to dismiss in such circumstances.

The Scottish case of BS v Dundee City Council (2013) CSIH 91, although not binding in NI, provides a useful summary of four main principles which employers should bear in mind in any dismissal on the grounds of ill-health:

1. It is essential to consider the question of whether the employer could be expected to wait longer before dismissing.  There is a balancing act to be performed between the ability of the employer to wait, for example, because they could obtain temporary labour and because the employee has exhausted contractual sick pay, and the unsatisfactory state of affairs for an employer (and the costs associated with) having an employee on long-term sick leave.
   
   
2. There is a need to consult meaningfully with the employee prior to dismissal.  This can either work for or against the employee.  If they say that they will be able to return to work in the near future, it works in their favour.  If they say that they are no better and do not know when they will be able to return, it works against them.
   
   
3. The employer must take steps to discover the employee's medical condition and their likely prognosis.  However, this only requires the employer to obtain proper medical evidence and to ensure that the correct questions are asked and answered.  The obligation is only to take such steps as are reasonable in the circumstances.
   
   
4. Finally, the employer should address the question of length of service in every case.  That is whether length of service, and the manner in which the employee worked during that period, indicates that they are is likely to take steps to return to work as soon as they can.

Employers should bear in mind that a decision as to whether to dismiss is not a medical question or assessment. A decision to dismiss is an employment question to be taken by the employer on the basis of the information known to it and with the organisation's needs and resources in mind.

As with any dismissal process employers should ensure that they follow their own policies and procedures and the statutory dismissal procedures throughout.