UK: Unfair dismissal - employer contribution to ill-health relevant to when it will be fair to dismiss

Two recent cases illustrate the need for employers to take into account their own contribution to an employee's ill-health when determining whether and when to dismiss for sickness absence. This is so, not only where the employer causes the ill health, but also where the employer exacerbates it. In L v M the employer failed to provide the employee with evidence it possessed which would have established her innocence in a police investigation into a harassment allegation. This exacerbated her depression caused by the allegation against her; her dismissal for sickness absence, shortly after the evidence was provided by an anonymous source and the police investigation dropped, was unfair.

In Monmouthshire County Council v Harris, the employer's failure to make reasonable adjustments for a disabled employee might have avoided the employee needing to take sickness absence. The EAT confirmed that this was relevant in deciding whether dismissal for sickness absence was unfair and whether there was discrimination arising from disability, even if the reasonable adjustment claim was out of time and there were no longer reasonable adjustments that could be made.

Employers in this situation may need to take additional steps to avoid dismissal, eg by finding alternative employment for the employee, or put up with a longer period of sickness absence than would normally be reasonable. The employer's responsibility for the employee's ill health will be one of the factors taken into account in deciding whether or not the dismissal was fair or discriminatory, but a tribunal will also consider the pressures the employer faces. The key question is whether in all the circumstances a reasonable employer would have waited longer before dismissing; an employer must also consult with the employee and obtain proper medical advice as to their condition and prognosis.