19 May 2014

Ill Health Capability Dismissals: Key Considerations

Dealing with employees with long-term health problems has historically been and remains a difficult task for even the most legally savvy employer, particularly when the employer has arrived at the conclusion that the relevant employee needs to be replaced permanently.

Capability is one of the six potentially fair reasons which an employer can rely on in dismissing an employee. While this ground can pertain to the performance of an employee, in many cases it relates solely to their physical ability to do the role, often this ability has been reduced owing to a debilitating condition.

There are however many potential pitfalls in seeking to dismiss an employee on the grounds of ill health. The recent Scottish Court of Session case of BS v Dundee City Council considered what central question an employer might ask itself before taking the decision to dismiss an employee on capability grounds. The Court found that this question was likely to be "would any reasonable employer have waited longer before dismissing the employee?"
While the facts of the actual case were unremarkable, the Court has very helpfully provided list guidance for employers as to what issues should be specifically addressed when going through an ill health capability dismissal procedure:

First whether the employer could be expected to wait any longer and, if so, for how much longer. Key relevant factors could include whether the employee has exhausted their sick pay, whether the employer was able to call in temporary staff, as well as the relative size of the company.

Secondly, whether the employee has been consulted with, whether their views had been taken into account and whether such views had been properly balanced against a medical professional's own opinion.

Thirdly, whether reasonable steps have been taken to discover the employee's medical condition and likely prognosis. It should not be necessary for the employer to pursue a detailed medical examination as the decision to dismiss is not a medical question but rather a question to be answered in the light of the medical advice available to the employer.

While in the above case the claimant had been employed continuously for 35 years, the Court also pointed out that length of service is not an automatically relevant factor. The important question is whether the length of service, and the manner in which the service was rendered during that period, yields inferences that indicate that the employee is likely to return to work as soon as they can.

Conclusion
The above serves as an excellent plenary statement of the approach to be taken by employers when looking to potentially dismiss an employee who has unfortunately found themselves out of action due to long-term illness. Ideally these points should be incorporated into a formal procedure and be available for all within an organisation.
More importantly when it comes to utilising that procedure, it should be adhered to in conjunction with seeking comprehensive legal advice in order to maximise the employer's chances of getting it right first time.