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An employee’s lack of capability to do their job due to ill health is a potentially fair reason for dismissal. 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.
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.
Should an employer look to retire or dismiss an employee who is absent on ill-health grounds?
H worked as a bus driver for First West Yorkshire (‘First’), and as a benefit of his employment was entitled to 26 weeks full pay, followed by 26 weeks half pay when off work due to illness, and a pension scheme permitting retirement on grounds of ill-health if the employee were deemed to be permanently incapable of efficiently discharging his duties.
In June 2005 H suffered a stroke and the DVLA suspended H’s driving licence for a period of 12 months. First’s occupational health advisor was of the opinion that H might be well enough to undertake alternative duties as of June 2006, but that H may not be able to drive at that time. H then had a second stroke in October 2005. As a result, one of First’s managers took the view that H’s incapacity was permanent and that H should be dismissed for incapability.
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. First offered H two choices:
- Have his appeal dismissed
- Remain on sick pay until 20 May 2006 and then remain employed, but off-work with no entitlement to sick pay until retirement
H submitted a claim to the Employment Tribunal which criticised First’s insufficient consideration of the medical evidence at each stage of the procedure, particularly the availability of ill-health retirement.
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…”
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. Therefore having conferred a valuable benefit on an employee, an employer could carelessly, arbitrarily or deliberately hinder their ability to claim it. In this case the Tribunal identified that the “single feature” that drove it to the conclusion that the dismissal was unfair was the apparent wish of the employer to avoid the possibility of incurring the cost of providing an ill-health retirement pension.
This case therefore serves as a reminder to employers that when dealing with employees on long-term sick leave, they should ensure that appropriate medical advice is obtained on all medical issues, including qualification for retirement on grounds of ill-health.
Gross misconduct & ill-health – how to deal with the overlap
Often issues of gross misconduct can arise as a result of the actions of employees who may be affected by serious illnesses or injuries. The difficulty that arises is how to address the issue. On one hand, a serious matter should be dealt with in accordance with the disciplinary procedure of the employer, but equally, the employer often does not wish to be seen to be dealing in a harsh manner with an employee who is obviously unwell.
C was employed as a teacher in a School. After a complaint had been submitted by a student in April 2005 an investigation suggested that C had played pornography on an overhead projector, had made inappropriate sexual remarks to students and had told students that he consorted with prostitutes, had been overtaken by aliens, and that terrorists were plotting to kill him.
C was suspended on full pay and referred to the Police Child Protection Unit. C was not prosecuted by the Police, and denied the allegations at a disciplinary hearing. He advised the hearing that he had no health issues. Prior to a second hearing, C’s Union suggested that C’s case might be treated as one of illness rather than discipline.
The School then referred C to an occupational health assessment, and at the same time wrote to C dismissing him on grounds of gross misconduct.
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. The occupational health assessment and additional medical advice determined that C suffered from a psychotic illness.
The Tribunal held that C’s dismissal had been unfair, there had been insufficient regard for C’s suspected illness when determining whether or not to discipline / dismiss C, and that there had been ample time to have referred C to occupational health. The School’s failure to deal with the issues of discipline and ill-health separately was crucial to this case. The referral of C to an occupational health advisor had created the reasonable expectation that the disciplinary process should be suspended pending the outcome of the assessment – an approach that should be followed by all employers.
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