Employee Ill Health Dismissals

The Employment Appeal Tribunal has recently passed an important judgement relating to the unfair dismissal of an employee suffering from ill health. The case emphasises the importance of caution where employers are considering dismissing an employee due to illness and the employer has in fact impacted upon this illness. The Judge in the case held that the question of whether an employer is in one way or another responsible for an employee’s incapacity is relevant to whether, and if so, when it is reasonable to dismiss the employee for that incapacity. This not only applies when the employer caused the ill health, but importantly for employers, also when the employer is responsible for exacerbating the illness.

The case involved an employee who had worked for the employer for many years and was regarded as a good employee. By 2009, outside of the working environment, there had been complaints and counter complaints of harassment between the employee and another woman. The police became involved and the woman eventually started making complaints to the employer.

Unbeknown to the employee, these complaints were investigated by the employer which held information that would effectively clear the employee from the stalking allegations, had it been handed to the police. The employee requested the information on multiple occasions however the employer refused. Fortunately an anonymous source provided the information to the employee which meant the investigations against the employee were dropped by the police. The key point here was that the employer lengthened police investigations by withholding the information.

In January 2010 the employee underwent an operation leading to subsequent post operative complications. The employee was off work for 65 days with depression caused partly by the operation and partly by the allegations of harassment. The employee returned to work in April, but had continued periods of sick leave due to the depression which the Employment Tribunal found to be caused solely by the harassment allegations. The tribunal found that the employer had exacerbated the allegations.

The employee was considered for dismissal or demotion due to her absence from work and the employee was passed through the stages of the employer’s absence procedure. The employee was eventually dismissed and her employment was not reinstated despite an internal appeal. The employee had highlighted the employer’s role in respect of the illness during meetings.

The Employment Tribunal held that the employee had been unfairly dismissed, finding that:-

• the employer dismissed the employee because of her sickness absence record;
• the employer acted unreasonably in treating the reason for the dismissal as sufficient reason;
• the employer did not cause the illness that caused the employee to be absent from work;
• however, the employee’s continued reactive depression was aggravated by reason of the employer’s failure to release information in its possession that would have removed the cause of the claimants reactive depression.

The employer then appealed the decision to the Employment Appeals Tribunal which dismissed the appeal, holding that the Tribunal at first instance did not make an error in law.

The case demonstrates that, beyond the usual pre-dismissal steps expected of an employer, where employers have caused or exacerbated the illness extra steps need to be taken to avoid a finding of unfair dismissal. The employer must ‘go the extra mile’, for example putting up with a longer period of sick leave or finding alternative employment for the employee.