The long road to ill-health dismissal

Monmouthshire Council v Harris

It’s a question that crops up frequently: for how long does an employee need to be off work before their employer can terminate their contract?

Concern for an employee’s welfare is one thing. But there are operational challenges around covering that person’s work, keeping their job open, and making changes to their role or working environment that could help them return. It’s rarely an easy situation to manage and it can be difficult to judge when the time has come to safely bring employment to an end. Of course this will vary from situation to situation.

One of the main points to come out of Monmouthshire County Council v Harris is that, when looking at a decision to dismiss a sick employee, a key question is: could the employer have reasonably been expected to wait any longer? (This is alongside the question of whether there was adequate consultation with the employee and whether the employer obtained and had proper regard to up-to-date medical advice.)

Relevant considerations in this context include:

• Was it fair to dismiss, given any background failings by the employer?
• Was it fair to dismiss, given the pressures faced by the employer at the time and going forward?
• Could the employer have been expected to allow more time?
• Was dismissal within the range of reasonable responses?

The EAT allowed the employer’s appeal; the tribunal had taken the wrong approach in finding in favour of Ms Harris.