Back to News

Unfair dismissal and Ill health

The Court commented that the critical question in these types of dismissals is “whether any reasonable employer would have waited longer before dismissing the employee.”
The Court of Session stated that in a case where an employee has been absent from work for some time due to sickness, the following issues would need to be specifically addressed:
1. Whether the employer could be expected to wait any longer and, if so, for how much longer. Relevant factors could include whether the employee has exhausted their sick pay, whether the employer was able to call on temporary staff, and the size of the organisation.
2. Whether the employee has been consulted with, whether their views had been taken into account, and whether such views had been properly balanced against the medical professional’s opinion.
3. Whether reasonable steps had been taken to discover the employee’s medical condition and likely prognosis. It would not be necessary for the employer to pursue detailed medical examination as the decision to dismiss is not a mdical question but a quetion to be answered in the light of the abailable medical advice.
These points will be useful to employers considering making these types of dismissals. We would recommend that a business seeks legal advice before taking steps to dismiss an employee on ill health grounds to ensure they are comploying with legal requirements and the above considerations, in order to protect their business as far as possible.

Get in touch today