A question frequently asked is how long must an employer wait, whilst an employee is signed off on long term sick, before being able to consider dismissal?
The EAT case of Dundee City Council v Mr Sharp concerned this issue and factors to be taken into account when determining whether dismissal is appropriate. Mr Sharp had been employed by the Council for 35 years and was absent from September 2008 to September 2009 suffering from depression and anxiety. The Tribunal, when considering the reasonableness of the investigation pre dismissal, took into account Mr Sharp’s length of service and determined the investigation was insufficient and he was unfairly dismissed.
The EAT made a number of useful observations…. the standard of enquiry is no higher than that required in a misconduct case; there are no particular procedures to be be carried out; the decision to dismiss is a management decision and not a medical one and (as was pertinent here) length of service is not relevant when considering whether the employer has carried out ‘such steps as are sensible’.
This case will, therefore, be helpful to employers as a benchmark when considering whether to dismiss or not because of long term sickness. The EAT seem to be suggesting that the Tribunal’s expectations as to what should amount to a fair procedure for capability dismissals was too high.
The answer to my initial question, however, remains undetermined. The period of time must be what is ‘reasonable and sensible’ and this will depend on case sensitive facts.