“Whether ’tis nobler in the mind to suffer

The slings and arrows of outrageous fortune,

Or to take arms against a sea of troubles,

And by opposing end them?” (Shakespeare’s Hamlet, Act III Scene I)

In other words, if you have an employee on long term sick do you suffer the inconvenience and wait to see what happens or take action and dismiss? Perhaps not the use the Bard intended but a reasonable question nonetheless.

In a recent case, the Court of Appeal provided guidance on whether an employer can dismiss an employee on long term sick or whether they should wait a little longer. Ms O’Brien was dismissed on ill health capability grounds having been of sick with stress for over a year and it was uncertain when she would be fit to return to work. She appealed the decision to dismiss and on appeal produced a fit note from her doctor stating she was fit to return to work and a medical report from her psychologist stating she would make a full recover following a course of treatment. The employer didn’t accept the evidence and upheld the dismissal. The court found that decision to be unfair and discriminatory.

The court made the following important observations, which employer’s should consider when making a decision whether to dismiss an employee on ill health capability grounds:

  • No matter how obvious it seems, employers must provide evidence on the impact that an employee’s continued absence is having on the organisation. This can include things such as cover arrangements, additional costs to the business or reallocation of work to colleagues. It’s advisable to include details of the business impact in a dismissal letter.
  • Medical evidence must not be ignored and, if new evidence is produced, further investigation should be made by an employer’s own occupational health or external medical advisers. This applies even if the evidence is provided at a late stage, is contradictory or unexpected.
  • Employers are not expected to wait forever to dismiss an employee on long term sick but they must be able to demonstrate why it was necessary to dismiss at that point in time.

So “Go wisely and slowly. Those who rush, stumble and fall.(Romeo and Juliet)

For further advice on how to address problems at work, then just give Howarths a call and one of our specialist and legally qualified team will be happy to discuss.

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