Dismissal of Employee on Long Term Sick Leave

Dismissal of Employee on Long Term Sick Leave

A Postman v A Postal Service, ADJ-00004485

This case demonstrates the lengths an employer must go to in order to successfully defend an unfair dismissal case for termination of employment of an employee on long term sick leave.

In a decision published in March 2017, the WRC upheld the dismissal of a postman who was absent for reason of sick leave for almost four years from 18 July 2012 to the date of his dismissal.

The claimant alleged that the matter that caused him a medical injury was workplace bullying arising from a change in his delivery route.  The respondent proved that it had accommodated him through a change in his duties and a move to alternative tasks.

Learning Outcomes for Employers  

The WRC Adjudicator specifically noted in this case that she was struck by the persistently high level of contact, time engaged in and recorded by the respondent’s staff involved in handling the complainant’s case.  She was further struck by the diligence of the records maintained and the skill demonstrated in the management of this long-term absence.  She remarked on the considerable time and space that was permitted to facilitate a return to work for the complainant which even incorporated a relaxation of the disciplinary procedure to explore a scoping out of a potential return to work.

The WRC Adjudicator noted the challenge in dealing with a parallel personal injury case that was under way at the same time as the WRC hearing.  While both parties consented to the WRC hearing proceeding, notwithstanding the personal injuries case, it nonetheless caused the WRC Adjudicator to pause for thought and she felt that the WRC case was overshadowed by the personal injuries case.

The Adjudicator found that the employee’s incapacity was the substantial reason for his dismissal.  She found that the employee had fair notice that the question of the dismissal for incapacity was being considered. She found that the employee was offered an opportunity to be heard and that he was sufficiently on notice of the fact that his job was at risk due to his incapacity and his apparent lack of engagement in the rehabilitative return to work process over a four-year period.

The case is positive news for employers as it confirms that where exhaustive measures are taken to address the reason for an employee’s inability to work and to engage in creative and practical solution focus thinking in relation to how the employee can be accommodated within the workplace, that in the event that all of these measures do not result in a successful return to work, that dismissal on grounds of incapacity in line with section 6 of the Unfair Dismissals Act 1977 is a lawful dismissal.

Commentary

The respondent successfully contended that it could not be the position in Irish Law that it must go further than it had already done to secure the worker’s physical attendance at work.  The respondent further successfully submitted that the decision taken to dismiss the complainant came within the range of reasonable responses open to the company.  The employer submitted that it demonstrated a level of patience, fairness and facilitation not expected or required of an employer.

In its defence, the employer relied on a Scottish judgement on appeal from the UK EAT (BSV Dundee City Council

[2014] [IRLR131].  The Scottish case applied a three pronged test to the question of managing an employee on long term sick leave and dealing with the thorny issue as to when it is appropriate to move to terminate an employee’s contract of employment on the grounds of incapacity.

The test is as follows:

 

  1. The employer must ask the question as to how long it can wait for the worker to recover. The respondent waited almost 4 years while providing paid sick leave.

 

  1. The worker’s views are relevant and can indicate both positively and negatively towards dismissal. The respondent did everything reasonably necessary to ascertain the complainant’s views but he did not say that he would soon be well.

 

  1. The employer should inform itself of the medical position and can accept medical advice presented. It is not required to pursue medical evidence.

 

Complainant’s Case

The complainant submitted that due to bullying, harassment, oppressive and unreasonable treatment in his workplace, that he suffered an acute breakdown of his health leading to continuing deterioration.  The complainant produced medical evidence in support of this fact.

The complainant confirmed that he could not engage with the respondent due a psychological detachment.

In finding in favour of the employer, the adjudicator took particular account of the specific wording of section 6 of the Unfair Dismissals Act 1977 as amended.

Employer’s Case

Key to the respondent’s success was the fact it was in a position to open a log of key dates which catalogued the interactions between the company from the 26 March 2012 to the outcome of the appeal of the dismissal of 18 February 2016.  The respondent outlined that the company had been unsuccessful in securing engagement from the complainant in relation to his absence from work over the course of no less than 18 occasions, which then led to the activation of the company disciplinary procedure inclusive of notification of consideration of dismissal in January 2015.

The respondent was also in ongoing contact with the complainant’s solicitor and received a submitted GP medical report which stated that it would be impossible for the complainant to return to work ‘while the present work conditions are in place’.

Employers: Consider pausing disciplinary procedure until employee suggestions are meaningfully considered. 

The complainant’s solicitor sought suggestions for what might be available for his client.  In a key concession, which obviously resonated favourably with the WRC, the employer offered to place the disciplinary action on hold and to set up a meeting between the HR manager and the complainant to address the complainant’s solicitor’s suggestions. Despite several attempts by the employer to arrange this meeting, the meeting did not happen as the complainant did not engage with it.

The employee was then specifically advised by way of letter that the employer had no alternative but to advance the disciplinary procedure and that dismissal was a potential result of a meeting proposed to be held. No response was received from the complainant.

The complainant was dismissed on 10 November 2015 on the grounds that the complainant:

‘Failed to fulfill the terms of his contract of employment.’

The complainant was advised by his employer that this was as a result of his non-attendance in the workplace and was based on the fact of his continued absence from work despite many attempts to facilitate him in a return to work with the support of the occupational health service.

The complainant was offered the option of an oral appeal hearing in addition to or as an alternative to furnishing a written explanation.

The solicitor for the complainant lodged an appeal on 17 November 2015, which was considered by the acting Head of Employee Relations.  The dismissal was upheld.

Conclusion

The bar is set very high for employers, when dealing with dismissals for reasons of long term sick leave, but it is not an impossible standard to reach in our view.

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Legal advice should always be taken before acting on any of the matters discussed.

2018-03-12T11:59:14+01:00