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. Assuming that the employer can demonstrate that capability is the reason for dismissal, it must then follow a fair procedure. In addition where an employee is receiving or is likely to receive benefits under a permanent health insurance scheme, it would normally be considered unfair to dismiss an employee. googletag.cmd.push(function() { C was suspended on full pay and referred to the Police Child Protection Unit. Ill health retirement options. However, case law has established that it requires three key elements: (1) obtaining medical evidence, (2) consultation and (3) considering alternative employment. However, if an ill health dismissal does involve some element of misconduct or poor performance that would otherwise lead to disciplinary action, for example, a failure to follow sickness absence procedures, employers should ensure that they comply with the Acas code. The previous Labour Appeal Court held that the substantive fairness of a dismissal based on incapacity due to ill-health, depends on the question whether the employee can fairly be expected to continue in the employment relationship, bearing in mind the interests of the … He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). 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. First offered H two choices: 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. Termination of employment due to ill health. Terminating an employee due to ongoing illness is a difficult decision. It usually means the same as being sacked or fired. Often issues of gross misconduct can arise as a result of the actions of employees who may be affected by serious illnesses or injuries. In June 2005 H suffered a stroke and the DVLA suspended H's driving licence for a period of 12 months. It may also be the case that your ill-health amounts to a disability under the Equality Act 2010. Whilst absent, he was charged with a criminal offence following a complaint made about him by a woman with whom he was having an affair. googletag.enableServices(); 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...". 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. Dismissing an employee due to ill health is anything but straightforward. The employee is dismissed after 30 months due to ill health and his entitlement to all sick pay has been used up. Even where the Acas code does not apply, employers shou… 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. googletag.cmd.push(function() { In this respect, dismissal for ill-health or injury is akin to dismissal for the employer’s operational requirements (Grogan, 2001). }); We interview Genevieve Glover, Group HR Director - Barchester Healthcare. 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. Employers should therefore bear the four principles above in mind when faced with dismissing an employee who has been absent from work for some time due to ill health. It found that the employer was responsible for the breakdown in her mental health as a result of mishandling her grievance, and so “no reasonable employer would have dismis… calling googletag.cmd = googletag.cmd || []; googletag.cmd.push(function() { The Court of Session decided to remit the case back to the same tribunal to consider those four issues. Dismissal due to ill health - following the disciplinary procedure. So when will a dismissal for ill health be fair? Dismissal due to capability may also include instances where the employer dismisses because the employee is no longer capable of doing the job they were employed to do because of illness.. googletag.cmd = googletag.cmd || []; In 2004, after a long period of sickness absence and a long and difficult internal grievance process, Mrs McAdie’s employment was terminated by her employer on the grounds of ill health. Leaving those issues aside, it is clear that weighing all of these factors against the employer’s need to manage its business results in a tricky balancing act that must be undertaken. This week, the Employment Appeal Tribunal (EAT) served a useful reminder of how the handling of a dismissal on grounds of ill-health capability may give rise to valid claims for disability discrimination. And cover topics including: Trends for 2021, The Skills Gap, Virtual Collaboration & Rise of Employee Autonomy. Apart from Statutory Sick Pay (SSP) when capability dismissal is due to ill health, other benefits include: Employment and Support Allowance (ESA). It's important that an employer uses a fair and reasonable procedure to decide whether to dismiss someone. The Council referred him to Occupational Health advisers, but they proved to be unhelpful, and each Occupational Health report was almost identical. He advised the hearing that he had no health issues. Dismissal due to ill health: Benefits. Dismissal because of a disability may be unlawful discrimination. 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. googletag.cmd = googletag.cmd || []; You must ensure there are justifiable reasons and that you have explored every avenue prior to getting to the stage of dismissal due to ill health. He had been absent from work for over a year, the decision to dismiss had been deferred on five previous occasions, and they could not wait any longer. 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. H then had a second stroke in October 2005. The Court of Session summarised the four main principles relating to the fairness of ill health dismissals as follows: It is essential to consider the question of whether the employer could be expected to wait longer before dismissing. Personal Independence Payment (PIP). The doctor concluded that his health was improving, he was not a candidate for ill-health retirement and he should be able to return to work within one to three months (although this was subject to his GP signing him off as fit for work). 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. The employer must take steps to discover the employee’s medical condition and his likely prognosis. 01454 292 063   advertise@thehrdirector.com, Recruitment There was no discussion about obtaining a final certificate from his GP. The process is normally instigated by the employer when an employee has been absent for a long period, or periods, due to ill health and is unlikely to return to work.. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement. 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. 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: C was employed as a teacher in a School. 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 Employment Tribunal found that the dismissal was unfair due to a number of defects with the procedure. Before dismissing an employee for reasons of ill health an employer should find out the current medical position. solicitors or barristers) is available for inspection at the registered office and at www.michelmores.com. 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. After six months’ absence, the Council found out that he had been charged with a criminal offence and suspected that was the reason for his absence. This template Termination Letter can help you work through the process. In the case of BS v Dundee City Council, BS had been off sick for 272 days with stress and depression. (4)        Should have considered whether the employee’s length of service was relevant. Clarification has been given on how employers should handle an employee dismissal following an extended period of absence due to ill-health.. The occupational health assessment and additional medical advice determined that C suffered from a psychotic illness. An employment tribunal upheld her claim. Fairness in Dealing with Lack of Capability due to Ill Health. 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 blame of the gamePrint – Issue 162 | Article of the Week He was given the opportunity to appeal against this decision but chose not to. 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. 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 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. , 15 July 2019. The absence can be prolonged or intermittent but frequent. Redundancy is a form of dismissal and is fair in most cases. Items 10 and 11 of the schedule provides as follows: "10: Incapacity: ill-health or injury (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. Redundancy. 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. It is not unusual for an Employer to be required to deal with An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. 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. Should the employer wait to see if the employee qualifies for insurance before dismissing? She brought an unfair dismissal claim. Some absences which are unjustified e.g. The Code of Good Practice: Dismissal draws a distinction between temporary and permanent incapacity. He had 35 years’ service when he developed a problem with his foot and took some time off work. Five ways to help teams beat the January blues. 2: No reasonable employer would have dismissed the employee only nine days after receiving the indication from Occupational Health that he would be fit to return to work in one to three months. This decision provides a useful summary of how Employment Tribunals should approach ill health dismissals in accordance with the current EAT case law. 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. This will usually involve obtaining with the employee’s consent a report from the employees GP or consultant. 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. Will Covid-19 level playing field for disabled workforce? Should it wait until the employee has exhausted the appeal process with the Financial Ombudsman? Confirmation of dismissal. Increased mortality must shape wellbeing and benefits decisions in 2021, Firms underestimating importance of benefits in these challenging times, Employers warned not to force employees to take COVID-19 vaccine, Employers reveal top skills required for 2021. (2)        Did not give adequate weight to the employee’s own view about his ability to return to work, which should have been weighed against the doctor’s opinion. It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. Can an employer discipline an employee where they refuse to follow a management request in the course of carrying out a trade union action? googletag.defineSlot('/21798641100/Sidebar2', [[300, 250], [300, 600]], 'div-gpt-ad-1552319564911-0').addService(googletag.pubads()); It concluded that the doctor’s opinion (that he would be fit to return within one to three months) was conditional upon his GP certifying him as fit to return, but that he himself gave no indication that he might return. 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. Ill Health – If an employee’s absence from work means that he/she is unable to do their job the employer can potentially rely on this as a reason for dismissal. The obligation is only to take such steps as are sensible in the circumstances. Ben Power. googletag.pubads().enableSingleRequest(); Are adjustments required under the Equality Act 2010? His appeal against the decision was unsuccessful. Receive more HR related news and content with our monthly Enewsletter (Ebrief). If an employee’s illness or injury is only temporary and likely to be of short duration, no dismissal is possible for that reason alone. For example, if an employee's illness threatens the health of co-workers or customers, such as in the case of a food preparer who has contracted tuberculosis, an employer may be justified in terminating an ailing employee due to illness. googletag.enableServices(); A few days before his proposed return, he met with a doctor appointed by Occupational Health. The crucial question is whether any reasonable employer would have waited longer before dismissing the employee. Occasionally an employee may have to leave your employment because of long-term ill health.Sometimes the employee will simply choose to resign. The registered office is Woodwater House, Pynes Hill, Exeter, EX2 5WR. Article By Charles Wynn-Evans, Partner and Kate Anderson, Senior Associate at Dechert LLP. Following that meeting, the Council decided to dismiss. The School's failure to deal with the issues of discipline and ill-health separately was crucial to this case. LID Publishing talks to author Bill Cohen about his latest book on Peter Drucker’s consulting principles. (3)        Attached too much weight to the importance of obtaining a further medical opinion. The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply where someone is dismissed from work purely due to ill health. The definition of disability (whether endometriosis and/or depression) under the … 01454 292 069   recruit@thehrdirector.com, UK Subscriber Assistance T 01454 292 060 subs@thehrdirector.com. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. 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. There is a need properly to consult with the employee prior to dismissal. 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. Therefore having conferred a valuable benefit on an employee, an employer could carelessly, arbitrarily or deliberately hinder their ability to claim it. If he says that he is no better and does not know when he will be able to return, it works against him. Understanding dismissal for incapacity due to ill health Incapacity is the inherent inability of an employee to perform work according to the employer's established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. incapacity due to an employee’s ill-health or injury For a dismissal to be fair, you must prove that you had a fair reason to dismiss. googletag.defineSlot('/21798641100/Sidebar1', [[300, 250], [300, 600]], 'div-gpt-ad-1552319515893-0').addService(googletag.pubads()); 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. Key to its conclusions were the following findings: 1: The reliance of the Council on the “perfunctory” reports of Occupational Health was not within the range of ways in which a reasonable employer might have informed itself. This article will highlight the aspects surrounding termination of employment based on ill health and injury. Most employee benefits including ESA are now covered under Universal Credit. In Holmes v Qinetiq Ltd [2016] IRLR 664 EAT, the EAT held the "Acas code of practice on disciplinary and grievance procedures" has no application where an employer does not allege culpable conduct by an employee. OC326242. 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. This led to a disciplinary meeting and, although the disciplinary charges were later dropped, the resulting humiliation led to a significant setback in his recovery. During his absence, he was signed off sick by his GP and the occupational health assessment services for eight weeks at a time. As for reasonableness, a number of factors should be taken into account, including the employee’s length of service, the effect of their absence on the workforce, the requirement for the role to be performed, the likelihood of the employee being able to return to work and the nature of their illness. The charge was later dropped, but led to him separating from his wife and being signed off work with depression and anxiety. Universal Credit. Further complications, although outside the scope of this article, present themselves with permanent health insurance and disability discrimination. 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. In this case, the circumstances which led to the employee’s dismissal tell a sad tale. 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. googletag.pubads().enableSingleRequest(); Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. var googletag = googletag || {}; It is fair to dismiss disabled employees only when there is no prospect of their recuperating in time during which the employer can cope without suffering significant loss as a result of the employee’s absence. How the right reward can be a great morale booster, Workplace mental Health requires board level accountability, How to beat the back-to-work and lockdown blues, Performance management in 2021 and what we learnt in 2020, TALENT INTELLIGENCE IN A COMPETITIVE WORLD – Roundtable Report, 139 employers named and shamed for failing to pay minimum wage, One Bright Idea to Help Charities Recover from the Annus Horribilis of 2020. Buy this issue now, click here. This means employers can dismiss someone for sickness without following the process recommended in … Meanwhile, employee B has been employed for two years when they are dismissed due to long-term ill health. Compensation uplift: Acas code of practice does not apply to ill-health dismissal involving no culpable conduct Date: 24 September 2016. Under their contract of employment they are entitled to receive four weeks' notice. However, he did not return to work on the planned date and at his next meeting with the Council said that he did not feel any better or further forward since the last meeting. This is generally not the case. Ill Health Incapacity In the previous articles, focus was placed on dismissal for misconduct and more specifically the procedural and substantive fairness required for such dismissals. It is a common misconception that dismissal due to ill health is automatically unfair or unlawful. A dismissal is when an employer ends an employee's contract. 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. This can either work for or against the employee. Summary: When is it reasonable to dismiss an employee who has been absent from work due to ill-health for an extended period of time? Unsurprisingly though, what constitutes a fair procedure for ill health dismissals is more complex than it is for, say, misconduct or redundancy. C was not prosecuted by the Police, and denied the allegations at a disciplinary hearing. googletag.enableServices(); The employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. His contractual notice at 1 month is more than 1 week longer than this, so the employee is not entitled to be paid. 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. var googletag = googletag || {}; There are laws regarding termination of employment for employees suffering with ill health. 01454 292063   advertise@thehrdirector.com, Online They may resign, or you may have to consider dismissing them. }); Publication If he says that he will be able to return to work in the near future, it works in his favour. In addition to a claim for unfair dismissal, you may have a claim under health and safety legislation. If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid. The Council asked him to return to work a month later and explained that they would consider his dismissal if he did not. googletag.pubads().enableSingleRequest(); Dismissing an employee due to ill health is anything but straightforward. Although it’s not pleasant, sometimes when an employee’s health impacts their ability to work, you may have to consider dismissal. If, however, the employee’s incapacity is likely to be per… That is whether length of service, and the manner in which the employee worked during that period, indicates that he is likely to take steps to return to work as soon as he can. I’m still currently employed but my employer wants to dismiss me next month, my go said I’m classed as disabled but my employer are saying I can’t do what I’m employed to do so dismissal due to ill health is the route they will take (4)        Finally, the employer should address the question of length of service in every case. 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. ’ service when he developed a problem with his foot and took some time off work only the... Return, it works against him Anderson, Senior Associate at Dechert LLP employee qualifies for insurance before dismissing employee! Allowed to take such steps as are sensible in the case that your ill-health amounts to a claim unfair... Services for eight weeks at a disciplinary hearing of illness rather than discipline a Union... Depression and anxiety a management request in the course of carrying out a Union... Further complications, although outside the scope of this article will highlight aspects! Each Occupational health report was almost identical no discussion about obtaining a further opinion. 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