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Unfair Dismissal - Ill-health absence

View profile for Chris Dobbs
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BS v Dundee City Council

In the above case the court has held the critical question to be decided in dismissals on grounds of ill-health is “whether any reasonable employer would have waited longer before dismissing the employee”. It also stated that, in long term absence cases, the following issues would need to be specifically addressed:

  • whether the employer could be expected to wait any longer and, if so, for how much longer. Relevant factors could include whether the employee has exhausted their sick pay, whether the employer was able to call on temporary staff, and the size of the organisation.
  • whether the employee had been consulted with, whether their views had been taken into account, and whether such views had been properly balanced against the medical professional’s opinion.
  • whether reasonable steps had been taken to discover the employee’s medical condition and likely prognosis. It would not be necessary for the employer to pursue a detailed medical examination as the decision to dismiss is not a medical question.

In Practice

Employment Partner Kate Fretten says “This case again highlights the importance for employers, facing an employee on long-term sickness, to consult properly and obtain a professional medical opinion. There is no set time period before it will be reasonable to dismiss such an employee, but this case details useful factors employers should have considered before doing so.”

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