In last month’s ebulletin we featured a case where an employer was criticised for relying too heavily on Occupational Health advice without questioning (Gallop v Newport ). That case has been followed in quick succession by the case of BS v Dundee City Council , where the Tribunal took a different approach when considering how employers should view medical evidence in ill-health cases. We look at the BS v Dundee case and what this means for employers in practice.
In the case, the employee (BS) had been employed by the Council for 35 years. He became ill with stress and depression and had a total of 272 days off before he was dismissed for ill-health in 2009. During his absence the Council had received regular reports from Occupational Health, but these did not give a great deal of information.
The Council arranged to meet with BS to discuss his return to work and he was given a return date of 14 September 2009. He was informed that if he was not able to return on that date then the Council would consider terminating his employment.
BS was seen by an Occupational Health doctor on 11 September and the doctor’s report indicated that he could be expected to return to work within 1 to 3 months, depending on his GP’s view. BS did not return to work on 14 September and was signed off by his GP for a further 4 weeks. The Council met with him on 23 September to discuss his potential dismissal. He indicated that he did not feel he was getting any better. Taking this into account, the Council terminated his employment. He appealed against his dismissal, but this was unsuccessful. He then brought an unfair dismissal claim and sought reinstatement.
The Employment Tribunal upheld his claim for unfair dismissal, stating that the employer had not conducted a sufficiently thorough investigation into BS’s health and that they should have obtained a further medical report. In particular, the Tribunal referred to BS’s length of service as a reason for giving the matter thorough consideration.
The matter progressed via appeal to the Inner House of the Scottish Court of Session (the Scottish equivalent of the Court of Appeal). Scottish decisions are not strictly binding on English courts but in practice, particularly in employment law, they do tend to be followed.
The court confirmed the established legal position, which is that the decision to dismiss an employee is not a medical question, but it should be answered in the light of available medical advice. Looking at the Occupational Health doctor’s advice, the court did not feel that this suggested that BS would be fit to return in the foreseeable future. They also felt that the Council had been entitled to take the employee’s own views into account when making their decision.
Further, the court also found that obtaining further medical advice would not necessarily have been helpful. The employee said he did not feel he was improving and the OH doctor had decided he was unfit to return, though possibly that might change in 1 to 3 months’ time. The employer was entitled to rely on this information, however unhelpful or ambivalent it may seem.
The court felt that the original Tribunal had not adequately considered these points and therefore sent the case back to the Tribunal for the points to be dealt with there.
It certainly seems that in this case the lack of good quality medical information did not help the employer and it may have been better for the Occupational Health reports to have been challenged so as to make the position clearer. The court did also say that there may be times when relying on an employee’s own view may not be appropriate, such as where mental health problems are involved or where it contradicts medical evidence.
While this case appears to indicate that employers can rely on medical evidence even where it appears flawed, we would suggest that employers should always try and make a realistic assessment of the information available to them. Which leaves us somewhere between this case and the Gallop case!
It is also worth noting that this case did not involve a discrimination claim, but of course many of the issues in this case would also be relevant to issues of disability as well.
Do you need advice on to manage long-term ill-health cases in your organisation? We can help. Please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).