How long off work is long enough to justify an ill-health dismissal? Whilst there is no single answer to this question (and each case will depend on its circumstances), Henderson v Maximus UK Services offers some insights and guidance on the process employers are required to follow to dismiss fairly.
Henderson v Maximus UK Services Limited (in the Scottish Employment Tribunal, judgment dated 5 July 2024)
The above case is an illustration of a situation employers may come across from time to time – the seemingly insoluble long-term sickness absence case with no evidence of improvement or prospects of the individual returning to work within a reasonable time.
In Henderson, a team leader sued for disability discrimination following termination of her employment after she had been signed off work for more than four years. She suffered from fibromyalgia with a range of symptoms (including insomnia, pain and memory fog) that prevented her performing her role.
During the period of her sickness absence, Mrs Henderson received income replacement benefit. However, after she had been off work three and a half years, the insurer wrote to her employer and informed them that, in their assessment, she no longer met the core condition of cover which required her to be unfit to carry out her insured occupation.
Despite the insurer’s withdrawal of income replacement, Maximus continued to employ Mrs Henderson for a further period of almost a year. Yet, in meetings and correspondence discussing her health and ongoing absence from work, there was no indication of a return-to-work date and no adjustments were identified so as to enable her to do so within the foreseeable future including redeployment in an alternative role.
Noting Mrs Henderson’s position in October 2022 (at which point she had been off work for four years) that there was nothing which could be done to enable her to return to work, the employer resolved, following further and final absence meetings, to dismiss her. In reaching its decision, Maximus took into account advice from independent occupational health specialists and information from Mrs Henderson’s own GP.
Mrs Henderson’s complaint in the employment tribunal was based on disability discrimination and not unfair dismissal. Had she framed her complaints differently, there may have been additional considerations undertaken and different legal tests applied. Nevertheless, the case recognises that there is a limit to what an employer can reasonably do where there is no evidence of improvement during an employee’s long-term sickness absence and “reasonable adjustments” are unlikely to lead to a return to work within an acceptable time.
Dismissing Mrs Henderson’s claims of disability discrimination, the employment tribunal concluded that her employment had been terminated not because of her fibromyalgia but because she had been absent from work for more than four years without any prospect of her returning. The tribunal further determined that she had not been placed at a disadvantage by reason of a policy requiring her to maintain reasonable contact with her employer when off sick and that it was both reasonable and proportionate for the employer to inform itself of her health condition and how/when she might be in a position to return to work.
Her claims of direct and indirect disability discrimination therefore failed.
Employers (and employees) are sometimes under the impression that a disabled employee is “untouchable” and cannot (ever) be dismissed, which is not the case. However, such dismissals do carry risk due to the possibility of the employee claiming an unfair and/or discriminatory reason for termination which breaches either their statutory right not to be unfairly dismissed or equality legislation.
It is advisable in such situations that an employer takes legal advice and acts on the basis of the medical information so as to make evidence-based decisions. Capability (i.e. where the employee cannot regularly and effectively carry out their duties) can be a fair reason for dismissal, but it is essential to follow a fair process in exploring and ruling out the prospect of a return to work. There are a number of factors which potentially require balancing and approaching in the right way to achieve this.
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