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6 December 2013

Dismissal for long-term absence

The Scottish Court of Session has recently considered the relevant factors to be taken into account when deciding whether an employee has been fairly dismissed following a long-term period of sickness absence.


In this case, the employee (BS) was dismissed following a sickness absence lasting over 12 months.  He had initially suffered from a ‘nervous debility’, which was exacerbated by relationship problems and by the fact that he was charged with a serious criminal offence (charges that were later dropped).  He was subsequently diagnosed with depression and anxiety, for which he was prescribed anti-depressives and sleeping tablets.

His employer, Dundee City Council, referred BS to its occupational health advisers, who held a number of meetings with him and provided the Council with a number of reports, none of which appeared to suggest that his health was improving.  Eventually BS was given a date by which he must return to work (14 September), failing which the Council would consider terminating his employment.  He had a further occupational health review prior to 14 September.  The consultant occupational health physician indicated that BS’ health was improving and that he might be able to return to work within one to three months.

However, BS did not return to work and at the subsequent meeting with the Council held under their sickness absence procedure, he indicated that he was not ready to return to work and that his health had not improved since the last meeting.

The Council terminated BS’ employment on the basis that he had not returned to work on 14 September and there appeared to be no future prospect of a firm date for his return.  His appeal against the dismissal was rejected.

BS brought a claim for unfair dismissal, which was upheld by the employment tribunal.  It found that no reasonable employer would dismiss an employee with 35 years’ service without first clarifying the true medical position, given the conflict between the employee’s understanding of his condition and the medical advice suggesting that his health was improving.

The Council’s appeal was upheld by the Employment Appeal Tribunal.  DS appealed to the Court of Session (Scottish equivalent of the Court of Appeal).


The Court of Appeal has remitted the case to be reconsidered by the employment tribunal.

In the Court’s view, the critical question to be asked by the tribunal in this type of case is this: whether any reasonable employer would have waited longer before dismissing the employee and if so, for how long?

The Court also highlighted the following factors that should be taken into account to determine the fairness of the dismissal:

  • Whether the employee has been consulted with and his views taken into account, balanced against the opinion of the medical professional; and
  • Whether proper steps had been taken to discover the employee’s medical condition and his likely prognosis.  This does not require a detailed medical examination, but the obtaining of proper medical advice by the employer.

The Court criticised the Tribunal for placing too much emphasis on the views of the doctor (that BS’ health was improving), rather than the views of BS himself that he was no better.

The Court further held that the tribunal should have considered whether the employee’s length of service was relevant to the employer’s decision to dismiss.  In the Court’s view, the relevance of an employee’s length of service is not as clear cut in cases of ill-health dismissal, compared with misconduct dismissals where it might be more appropriate to take it into account.


Whilst this case does not make any new points of law in relation to ill-health dismissals, it is a useful summary of the approach that a tribunal should take to such cases and the factors that an employer should consider before deciding whether to dismiss an individual who has been on long-term sickness absence.  In particular it clarifies the balancing exercise that an employer must carry out, between the medical evidence and the employee’s own opinion.

A copy of the Court of Appeal judgment is available here.