Dismissal for long-term sickness

What is the definition of long-term disability?

A person is disabled if she has a physical or mental impairment that has a substantial and long-term adverse effect on her ability to do day-to-day activities. To be 'long-term' an impairment must have lasted, or be likely to last, at least 12 months. An impairment can be treated as continuing when it has stopped if it is likely to recur. Likely means it is more probable than not.

Dismissal for long-term sickness

In Parnaby v Leicester City Council, the employee was a head caretaker. He was dismissed for long term sickness absence due to work related stress. The employee brought several discrimination claims. The tribunal's first job was to decide if he was disabled.

They found that his condition did not meet the 'long-term' requirement. His work-related stress had not lasted 12 months by the time his employment ended, and he hadn’t seen his GP since then. His recovery coincided with his employment ending. Therefore, it wasn’t long term.

Tribunal Decision on long-term disability

The EAT said the tribunal had applied the test incorrectly. The tribunal had looked back at the employee's position with the benefit of hindsight, noting his illness had stopped at the point of dismissal. This was the wrong approach. They should have considered what the position had been at the time when the decisions were taken by the employer, before the employee's dismissal.

Dismissal for long-term disability ruling

At that point, was the employee's impairment was likely to last 12 months or recur? The employee's dismissal had to be disregarded when applying this test because it was his dismissal and the matters leading up to it which the employee said were discriminatory. The case was sent back for a new tribunal panel to decide whether his impairment was long term.

Kate Fretten, Employment Partner says "This case shows how complex the disability test can be, tripping up even experienced judges. Just because someone's impairment hasn’t lasted 12 months yet does not mean they do not meet the disability test. Take care when contemplating dismissal for sickness absence relating to work related stress and ensure you have done everything you can to address the issue first."

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and someone from the Employment Team will be happy to discuss it with you.

 

 

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