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Wednesday, 27 July 2016 06:14

Dismissing On Grounds Of IIl Health

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A recent Employment Appeal Tribunal (EAT) decision has helpfully clarified the question of whether or not an employer should follow their disciplinary procedure when dismissing an employee on the grounds of ill health.

The judgment in the case of Holmes v Qinetiq Ltd (UKEAT 0206/15) followed an appeal by Mr. Holmes that his compensatory award should be uplifted by up to 25% as a result of, as he saw it, his former employer's failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

This code is one of a number of relevant Codes of Practice which operate within the structure of UK employment Lawregulation.

In rejecting Mr Holmes's appeal, the Employment Appeal Tribunal agreed with the reasoning of the original Employment Tribunal in this case and concluded that the code does not apply to ill health dismissals.

Its reasons for arriving at this conclusion were as follows:

  • Firstly, the code does not apply to internal procedures operated by an employer concerning an employee's alleged incapability to do the job arising from levels of sickness absence. It is limited to internal procedures  relating to culpable misconduct or culpable poor performance.
  • Secondly, medical incapacity involves no culpability
  • Thirdly, culpability was central to whether or not the code applies.
  • Fourthly, disciplinary procedures were not invoked in this case because, there was no suggestion that he was culpable in relation to his conduct or performance. That meant that the employer was not required to follow the code.

In the Appeal Tribunal's own words:

" ........ apart from the effects of his illness, the Claimant was able to perform the job of security guard, and there was no suggestion that he had breached the Respondent's rules of conduct or discipline so as to merit disciplinary action or to give rise to a disciplinary situation. That meant that the Respondent was not required to follow the ACAS Code of  Practice on disciplinary procedures and that the uplift under section 207 A(2) was not available."

The procedure that is used where employees have a long term period of absence due to ill health is crucial in determining the fairness or otherwise of an ill health dismissal. Employers should consider a wide range of factors when deciding to dismiss an employee on grounds of ill health, including taking account of:

The nature of any illness, if applicable

The likelihood of any further absences recurring

The length and frequency of the absences and the periods of attendance between them

The employer's need for the work to be done by a particular employee

The impact of the absences on other employees

The adoption and exercise of fair and consistent absence policies and procedures

Taking account of the employee's personal assessment in the ultimate decision

The extent to which the difficulty of the situation and the position of the employer have been explained to the employee.

The team at the YBC HR Advice Line handle disciplinary and ill health situations on a daily basis. Premium Members should contact a member of the team for advice and assistance on any of these issues and we can help you to apply the correct procedures every time.

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Paul Kelly

Co-founder of Your Business Community, Paul has been running his own small businesses since 2001, after leaving his job as Product & Marketing Director of Bush Radio plc.

With great experience in setting up and running several businesses, as well as helping entrepreneurs at all stages of their development, Paul is a great supporter of SME's.

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