Long Term Sick Leave Dismissal
The Court of Appeals rejected an employee dismissal following more than six years of an employee on long-term sick leave. The case was returned to Employment Tribunal.
To be clear, this is a thorny case with much back and forth. A sick leave of six years is quite uncommon, but the salient points of the Court of Appeals decision are relevant for any employer.
First, let’s summarise the details of this long term sick leave case.
- The employee was attacked by a student at her place of work, in March 2011.
- The employee returned to work following a recuperation but reported feeling unsafe, sceptical of her employer’s handling of the incident and complained that the environment was making her sick.
- The employee was diagnosed with stress, anxiety and post-traumatic stress disorder and went on long-term sick leave in December 2011.
- The employer sought to terminate the employee in 2013, after a 14-month absence.
- The employee sought an Employment Tribunal. At Tribunal, the school proposed that the employee was unable to do her job, existed as an employee on paper only, and her employment was a detriment to the school. The Employment Tribunal agreed and supported the employee’s termination.
- The employee appealed the Tribunal decision supplying a note (previously provided to, and ignored by, the employer) that she was able to return to work. The Employment Tribunal again sided with the school.
- The employee filed an appeal to the Court of Appeals.
- The Court of Appeals reviewed the case and found the employer’s position lacking in several criteria:
- The employer failed to show an adverse effect of the employee remaining on long-term sick leave.
- The employer failed to consider the employee’s return to work note.
- The employer failed to allow adequate time to review the employee’s return to work.
- In summary, the Court of Appeals held that the Academy failed to justify their position that the employee’s absence was deleterious to the school and failed to consider an appropriate return to work for the employee.
- The Court of Appeal returned the case to Employment Tribunal for a review of compensation.
- The Employment Tribunal review is pending.
So, what’s the takeaway?
We all understand employees will be on sick leave from time to time. Unlike a robotic workforce, humans can not be simply ‘fixed’ and require recuperation periods.
And, while compassion is necessary (and desirable), employers can not forecast the outcome of a long-term sickness and should keep the needs of the business in mind at the outset. It is critical to create a process to regularly communicate with the employee, document the effects of the employee’s absence, and ensure the employee’s health concerns are respected.
Long Term Sickness Dismissals
If your business is facing a long-term sick employee, it is imperative that you systematise the evaluation and document the process. Delays, indecision, and miscalculations will make the process more challenging and subject to a potentially lengthy appeal – and incur substantial extra costs.
Should you have any questions, feel free to reach out to DLP. Advisors are available 24 hours a day.
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