Reasonableness of Sickness Absence Investigation: Length of Service Irrelevant

An employment tribunal was wrong to take an employee’s long service into account when deciding whether an employer had carried out a reasonable investigation into an employee’s sickness absence. The level of investigation required is the same for all employees, irrespective of their length of service.

In Dundee City Council v Sharp the employee had been on long term sickness absence for over a year due to depression and anxiety. During this time he received counselling and was assessed by occupational health which reported back to the employer at regular intervals. The employer would also meet regularly with the employee to review his progress. In August 2009, he was given a return to work date of 14 September and warned that if he did not return on that date he would be at risk of dismissal. Shortly after that an occupational health report indicated that his health was improving and he should be able to return to work in the next one to three months. When the employee did not return to work, the employer met with him again. He said he was not any better and was no nearer to returning to work than at the last meeting. His employer decided to dismiss him and he claimed unfair dismissal.

The employment tribunal found that the employer’s investigation had not been reasonable and so the dismissal was unfair. The employer ought to have sought medical advice on when the employee would be fit to return, rather than make assumptions based on the employee’s understanding of his condition. In coming to this view it took account of the employee’s 35 years’ service.

The EAT held that when an employer is considering dismissing an employee on long term sickness absence, it must carry out a reasonable investigation into the state of the employee’s health, consult with the employee and consider whether it can wait any longer for the employee’s return. An employee’s length of service is not relevant to an assessment of their health and the tribunal had been wrong to take it into account and impose a higher standard of investigation for a long-serving employee - the same level of investigation is required for all employees.

This is a helpful reminder of what an employer must do before deciding to dismiss an employee who has been away from work on long term sick leave. The key steps are to consider the state of the employee’s health, obtaining medical evidence where a appropriate, to consult with the employee and to reach a reasonable view on whether it can be expected to wait any longer for the employee’s return. Whilst length of service is not relevant to the reasonableness of the investigation, it is still highly relevant to the question of whether it is reasonable to dismiss. Employers should therefore be careful not to be lulled into thinking that length of service is not relevant in long term sickness absence cases.