“I have an employee, Jane Doe, who has been absent from work since last July and has exhausted her statutory sick pay. This looks to be long term as she has had a tumor and operations. We have asked for her consent for a Consultant’s report but she has refused and now her family is saying she is too ill to sign and give consent for the report."

Based on the information we have to hand, can we terminate her employment? We wanted to get a view on her health to see whether we continue or terminate her contract. We are very sympathetic to the situation but we do have a business to run and her absence is causing strain on her department“.

Following the decision in O’Brien v Bolton St Catherine’s Academy, employers have to take care when considering a dismissal on the grounds of long term ill health. In the O’Brien case, Ms O’Brien was off sick with stress for over a year and, following a medical incapacity meeting, was dismissed on the grounds of long term sickness absence. She was successful in her discrimination claim at the tribunal; however, the Employment Appeal Tribunal overturned that decision finding that the tribunal had gone too far in expecting the employer to cope with Miss O’Brien’s absence any longer. Unfortunately, it then went up to the Court of Appeal who restored the original decision finding that there had been discrimination. Although the outcome does not assist employers, what does is the fact the Court provided valuable guidance for employers when considering long term sickness dismissals, so we can consider the same.

There are three important points provided by the Court of Appeal to consider:

· It is not necessarily unfair to decide to dismiss an employee who is absent for more than twelve months if there is no certainty as to when the employee will be able to return;

· The impact and severity of the same of the employee’s continued absence must be a significant element when determining at which point dismissal becomes justified*;

(*The courts are saying that tribunals will expect to see evidence of the disruption to the business.)

· Where an updated medical report is provided, the decision to dismiss must be fair based on the information available to the employer at the time.

The reason Bolton St Catherine’s Academy lost at the Court of Appeal was because Ms O’Brien at her appeal hearing produced a medical report which said she was fit to return imminently. They failed, therefore, in taking that into account and overturning their original decision to dismiss. Had it not been the case that she had presented such a report then it is more likely than not the Court of Appeal could have upheld the EAT’s ruling.

In short, therefore, this case means that employers are not expected to wait forever for employees to recover from illness and, therefore, dismissal is feasible and should not necessarily be unlawful.

Turning to your situation with Jane, therefore, clearly you don’t even have a medical report because she is refusing consent to provide the same. In the circumstances the company would have grounds to argue that the decision they are seeking to make is based on all the evidence available to them at the time; due to the refusal. It would be different, for example, if she gave consent and the report favourably said she would be returning shortly.

Given, therefore, that you are in somewhat of a hiatus, the fundamental question to ask is whether “her continued absence is having a severe impact on the business”. If so and therefore there is too much strain to wait any longer for an improvement in her health, then that should assist to justify your decision for proceeding with a dismissal. If you can provide evidence to show the impact to the business, then the company would be in a stronger position to take action. If, however, it is not an inconvenience to the business with her being off then arguably, therefore, applying the decision from O’Brien, the company may unfortunately have to wait further for her health to improve or, proceed on a commercial basis and take on board the risks.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.


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