Facts
Mr Haigh worked as a bus driver for First Leeds. As well as an enhanced sick-pay scheme, the employer provided a pension scheme, under which an enhanced ill-health retirement pension was paid if a medical certificate confirmed an employee was permanently incapable of carrying out his own duties, or other available comparable employment.
Mr Haigh suffered a suspected stroke and the DVLA suspended his PSV licence for 12 months. He was dismissed before his employer considered whether he was entitled to take advantage of the ill-health retirement provisions of the pension scheme.
Employment tribunal claim
Mr Haigh successfully claimed unfair dismissal. The employment tribunal criticised First Leeds' insufficient consideration of the medical evidence at each stage of its procedure, particularly the availability of ill-health retirement. The employment tribunal was particularly influenced in reaching its conclusion by the fact that First Leeds had wanted to avoid the cost to it of Mr Haigh taking ill-health retirement.
Employment appeal tribunal’s judgment
First Leeds appealed against the employment tribunal’s decision that it had unfairly dismissed Mr Haigh. Noting that the question of whether the employee's condition was permanent (and thereby fulfilled the necessary requirement for an ill health retirement pension) had not been answered before the employee was dismissed, the EAT ruled that the employment tribunal had been correct to rule that First Leeds should have taken medical advice on this question before deciding whether to dismiss.
Comment
When dealing with employees on long-term sick leave, employers should ensure appropriate medical advice is received on all relevant issues.
In practice, employers should ensure they consider all available options for employees on sick leave before dismissal. In this case, the EAT concluded that ‘where an employer provides an enhanced pension on retirement through ill health ... an employer will also be expected to take reasonable steps to ascertain whether the employee is entitled to the benefit of ill health retirement. We therefore agree with the Tribunal that fairness requires the reasonable employer to give proper consideration to an ill health retirement scheme before he dismisses for long term sickness.’
Failure to do this may result in unfair dismissal claims, and depending on the circumstances, disability discrimination and potentially very expensive breach of contract claims as well.
EEF’s award-winning publication, ‘Managing sickness Absence – A Toolkit for changing work culture and improving business performance’ contains various tools to help companies tackling long-term or short-term absence. Click here to see a checklist of steps an employer should take before dismissing for sickness absence.