When deciding whether an employee has been fairly or unfairly dismissed on ill health grounds, the Court of Session held in BS v Dundee City Council that the critical question was whether any reasonable employer would have waited longer before dismissing them.

Basic facts

BS had worked for the City Council for 35 years when he went on sick leave in September 2008 with a foot complaint. That evening the police interviewed him about a serious allegation made by a woman with whom he had had an affair. As a result he became separated from his wife and was signed off work with depression and anxiety.

In January 2009, he was referred to the Council’s occupational health adviser, OHSAS, which issued a series of reports saying that he was not fit to return to work. Although the Council was concerned that the reports (which were all by nurses) hardly varied from one assessment to the next, it did not ask for a report from a doctor.

His employer then learned about the alleged criminal offence and asked BS to attend a disciplinary meeting in July 2009, at which he informed them that the charges had been dropped. After a discussion about his health, his employer told him that they expected him to return to work on 14 September.

A consultant physician for OHSAS, Dr Spencer, then wrote a report in September stating that BS was not permanently incapacitated and would probably be fit to return in one to three months. However, as the Council felt there was still no indication about when he might return to work, it dismissed him at the end of September.

Tribunal and EAT decisions

The tribunal found that the decision to dismiss BS was unfair because, although the council had consulted regularly with him and taken steps to ascertain his medical situation, the quality of the reports were such that they were not “within the range of reasonable ways in which a reasonable employer might have informed itself”. It also held that no reasonable employer would have dismissed an employee just nine days after receiving a report indicating that he would be fit to return in one to three months.

The EAT reversed the decision on the basis that the tribunal had (wrongly) treated the fairness of the dismissal as a purely procedural matter; and that it should not have decided the issue of fairness on the basis of whether or not the employer should have done something different that might have produced a different outcome. 

Decision of Court of Session

The Court of Session rejected the decision of the EAT and remitted the case to the same tribunal to consider the following points:

  1. Whether in all the circumstances of the case the Council could reasonably have waited longer before dismissing BS, bearing in mind its size and the resources available to it, that BS had exhausted his sick pay and that the Council could call on temporary staff to do his job;
  2. Whether the Council had consulted with BS sufficiently and given adequate weight to his views about his ability to return to work and weighed these against the medical opinion it had received;
  3. Whether the Council had taken sufficient steps to ascertain BS’s medical condition and his likely prognosis by getting proper medical advice as opposed to a detailed medical examination; and
  4. Whether BS’s length of service was relevant to the decision to dismiss him. This could be ascertained by looking at his length of service and how he worked during that time, as well as his previous attendance record.