The Over Reliance on Occupational Health Reports

A recent Scottish judgment of the Court of Session has given helpful guidance to employers who are considering dismissing an employee on the grounds of ill health.

In BS v Dundee City Council, the Court of Session set out detailed guidance on the type of issues that need to be considered by an Employer, before a dismissal can take effect:

• The employer needs to ascertain the employee’s medical condition. This won’t always mean that a detailed medical examination needs to take place. Instead, employers should ensure that the correct questions are answered by Occupational Health. As long as good medical advice is taken, this will stand the employer in good stead.
• Length of service will not always be relevant, save for that the employee’s ability to perform their duties over their length of service needs to be considered, in establishing how likely they are to return to work following sickness;
• Crucially, the employer needs to ask itself whether it could be expected to wait any longer before dismissing the sick employee. Whether the employee has already exhausted sick pay, the size of the employer’s undertaking, and how easily the employer can cover the sick employee’s role during their absence, are all relevant questions in this respect; and
• The employer needs to consult with the employee, and take their view on board. Failure to do so could suggest that more could have been done, and that the employer was not as informed as possible in arriving at a conclusion.

Whilst the above factors are useful guidance, employers should also not be scared to ‘think outside the box’, such as going back to Occupational Health and asking more specific questions, especially where a report is not conclusive or doesn’t answer the key questions.

Here, the employee was absent with depression for the last 12 months of his employment. Various occupational health reports were gathered, before eventually, the Council confirmed it would consider dismissal if the employee was unable to come back to work.

Shortly before the dismissal took place, an occupational health report confirmed that the employee would be fit enough to return within a three-month window, but after the employee confirmed at a further meeting that he was still not well enough to return, the employer confirmed his dismissal.

In remitting the case back to the Tribunal, the Court of Session confirmed that the Tribunal had not given sufficient consideration to the four issues outlined above.

The case is helpful for employers considering dismissing an employee who has been off work ill for a long period of time. It confirms that employers are entitled to take occupational health reports and the views of employees themselves at face value.

As long as they reach a reasonable decision having given due consideration to the above issues, there is a good chance that the dismissal could be justified.