Employer Falls at Final Hurdle When Managing Long Term Sickness Absence

Published March 18 2021

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An employment tribunal has found that an employee had been unfairly dismissed and subjected to discrimination arising from disability when the employer failed to investigate further medical evidence which came before them at the appeal stage. Up to that point the employer had carried out all that could have been required of them.

The case of Debono v Great Places Housing Group Ltd is a reminder for employers to ensure that they act reasonably and fairly throughout the process when it comes to managing long term sickness absence.

The Facts of the Case

The employee was disabled by reason of a mental health condition and she started a period of prolonged sickness absence due to her mental health on 2nd January 2018.

The employer obtained a number of occupational health reports, consulted with the employee and made reasonable adjustments – trialling phased returns to work in alternative roles which had been confirmed to be more suitable for her. However, this wasn’t successful in gaining a sustained return to work and the employee was off sick again. There was more positive medical evidence in September/October 2018 that the employee’s situation had improved. It was agreed that she would return to work as a Welfare Benefits Advisor on a trial period on 7th  January 2019 which she did. Shortly afterwards the employee told her manager that she did not think the role was for her and that she had ‘hit a low’. She took sick leave again.

The employer obtained a further occupational health report, in which amongst other things, it was stated that it wasn’t believed the employee was fit for work in any capacity. The employer invited the employee to attend a final long term sickness absence meeting, following which she was dismissed for capability in August 2019. The employee appealed.

Shortly before the appeal meeting the employer received a letter from the employee’s GP explaining that there had been a change in medication, the employee’s condition was much improved and she was able to work. At the appeal hearing the employee told the manager that she would  return to work on the expiry of her current sick note in six weeks. Nevertheless, the manager upheld the decision to dismiss.

The employee complained to the employment tribunal that she had been unfairly dismissed and had been subjected to discrimination arising from disability. The employee succeeded in both her claims:

  • Whilst in relation to the discrimination claim the employer was able to show that they had legitimate business aims for the employee’s dismissal, they were unable to convince the tribunal that they had acted proportionately in dismissing her. Although the employer had done all that could have been required of them up to the point of the appeal against dismissal, it was found that the employer should have investigated the further positive medical evidence that came before them at the appeal stage. Doing so could have meant that the employee would not have lost her employment. As the employer’s actions were not proportionate, the judge found that the employee had been subject to discrimination arising from disability.
  • The dismissal itself was also found to be unfair – it was held to be unreasonable in the circumstances and that the process followed had not been fair. Again, this was due to the failure to investigate further the medical evidence that the employee raised at the appeal stage.

The amount of compensation that will be awarded to the employee will be decided in a later hearing.

Kingfisher’s Advice

Whilst managing long term sickness absence can sometimes be frustrating for employers, as is highlighted by this case, it’s important that appropriate investigations are carried out at every stage of the process.

You should always contact Kingfisher Professional Services Ltd for specific advice on the facts of your case when dealing with long term sickness absence. We can help you by giving advice on the facts and circumstances of your situation as well as providing documents for your use such as a permission to contact doctor form which you can use with your employee.

If you have an employment law matter you would like assistance with, please do not hesitate to contact us as we are happy to help.