Long-term sickness absence: Your action plan
When it will be fair to dismiss an employee on long term sickness absence?
The recent case on Ali v Torrosian and others (t/a Bedford Hill Family Practice) has considered the common issue of whether the employer’s ‘legitimate aim’ in dismissing an absent employee (in this case ensuring patient care and continuity of that care) could have been achieved by less discriminatory means than dismissal.
The employee, Dr Ali, was on long-term sickness absence as a result of an ongoing heart condition. It was accepted that Dr Ali had a disability for the purposes of the Equality Act 2010. A medical report concluded that he was fit to return part-time on a phased return. Dr Ali suffered a further injury unconnected to his ongoing condition (this time a shoulder injury) and as a consequence he was unfit to work at all for a further six weeks. He was then dismissed. Dr Ali brought an unfair dismissal claim and a disability discrimination claim. The discrimination claim focused on his allegation that he had been treated unfavourably for a reason ‘arising from’ his disability. Where an employer is found to have treated an employee less favourably on this basis, if they are able to show that the treatment was a proportionate means of achieving a legitimate aim, then the disability claim will fail.
The Tribunal found that unfavourable treatment had occurred, but was satisfied that ensuring continuity of patient care was a legitimate aim, and that the action of dismissing Dr Ali was a proportionate means of achieving that aim.
Whilst the discrimination claims were rejected by the Tribunal, it considered his dismissal procedurally unfair on the basis that his employer failed to consider a part-time return to work.
Dr Ali appealed to the Employment Appeal Tribunal. The EAT found that the Tribunal had focused on the wrong issues in assessing proportionality. The Tribunal did, as you would expect, consider the impact of Dr Ali’s absence on patient care, and the costs for his employer associated with that absence. However the EAT found that the Tribunal did not consider whether the return of Dr Ali on a part-time basis (rather than dismissing him) was a less discriminatory way of achieving the legitimate aim of ensuring the continuity of patient care. The facts demonstrated that he could have returned part-time and that his employer was able to accommodate this. Therefore the question of proportionality was remitted to the same Tribunal to reconsider.
In our view, this decision makes sound practical sense. It will almost always be a fairer and less onerous way of dealing with long-term sickness to allow the employee to return part-time in circumstances where this can clearly be accommodated.
This case highlights that, where a Tribunal finds that an employer has not considered an alternative to dismissal which then renders that dismissal unfair, it is likely to also mean that the dismissal (the unfavourable treatment) cannot be justified if the employee also brings a discrimination claim. This case serves as a timely reminder of how complicated it can be to dismiss an employee who is on long-term sickness absence, and that some of the factors an employer has to consider when looking at whether the dismissal is fair overlap with disability discrimination considerations. This case demonstrates the interplay between the two claims.
Long term sickness absence: Your action plan
There are a number of ways in which you can ensure the most robust outcome in these circumstances:
- Where an employee has an ongoing and long-term condition, an employer’s first consideration must be whether the employee could be classed as disabled for the purpose of the Equality Act. A medical report from a GP or an occupational health specialist should be able to provide an indication. If in doubt, remember that a disability under the Act is one where the physical or mental impairment ‘has a long term and substantial effect on day to day activities’.
- Take heed of the contents of any medical report and do ask questions if you require clarification. If you are relying on the report you need to be sure you understand and agree with the contents. A good report can be worth its weight in gold, but a good report is only as good as the referral. Ensure you give the medical expert enough information for them to provide an assessment including job descriptions, hours of work and copies of fit notes.
- If the employee is disabled then the employer’s duty to consider reasonable adjustments is triggered. This means that, as an employer, you need to consider whether there are any reasonable adjustments which would enable the employee to return to work in their substantive role, or another alternative role.
- As with any issue where you are managing an employee, communication is key. This can be more difficult where the employee is on long-term sickness absence but consider ways in which you can keep those channels of communication open, in terms of both holding formal meetings with the employee (whether those are at work or another location as appropriate) or by looking after the employee’s welfare by keeping in touch.
- If however there are no alternative options available and the employee is not able to return to work in the foreseeable future, then the next step may be dismissal. There are a number of issues which a Tribunal will expect you to have considered before you dismiss.
- Firstly you need to consider whether there is a Permanent Health Insurance Scheme in place and if so explore what is available to the employee under that scheme. These schemes generally provide benefits to an employee who is no longer able to work. They are subject to very strict criteria, one of which may be that the employee remains employed, so it is important that if such a scheme is in place, that it is considered at the outset.
- Secondly you need to consider whether ill-health retirement is an option. Again if so, then this needs to be explored to see where the particular facts and circumstances mean the employee can benefit from it.
- Thirdly the Tribunal will expect you to have assessed whether there are any other roles which the employee could carry out. This will involve communicating with the employee in relation to any other roles that are available. If one appears suitable, you should obtain medical advice as to whether the employee will be fit to carry out the alternative role, and whether any reasonable adjustments are recommended, as appropriate. Make sure the new role is correctly recorded in writing.
- Fourthly, before any dismissal a tribunal will expect you to have obtained up to date medical evidence. It is not uncommon for the management of an employee on long-term sick to take a significant period of time. Often meetings are arranged and rearranged within that time due to scheduling but also the employee’s condition. It is not uncommon for an employee to raise the fact that they are well enough to work at the point they are dismissed.So ensure that the medical evidence that you are relying on to dismiss the employee is up to date and remains relevant at the time of dismissal
Pili Fernandez-Mahoney (firstname.lastname@example.org) is an Associate in the Employment, Pensions and Immigration Team and is based in Manchester. If you have any questions or concerns, please do not hesitate to contact Pili or speak to your usual Weightmans advisor.