“Unusual” sickness absence procedure did not lead to unfair dismissal

The Employment Appeal Tribunal has confirmed an employment tribunal ruling that an unconventional approach to absence management did not result in an unfair dismissal. Rather than setting a series of review dates when dealing with an employee on long-term sick leave, the employer set a target dismissal date which it then postponed on no fewer than seven occasions.

The question that employment tribunal had to ask was not whether the procedure adopted was unusual, but whether it was one that “no reasonable employer” would operate. Since each extension was for the employee’s benefit, and his case against dismissal had been considered in an appeal against one of the earlier provisional dismissal dates, the EAT concluded that the tribunal had been entitled to decide the dismissal had been fair. This was despite the fact that the employer had a contractual absence management policy which made no mention of the possibility of postponing a dismissal date.

This is a decision that could have gone the other way. Most employers would wish to apply a more conventional sickness management process. This case demonstrates that where a tribunal judges that the merits are on the employer’s side, it is prepared to countenance a range of different absence management procedures. That is on the assumption that the employer has obtained appropriate medical evidence, considered alternatives to dismissal and allowed the employee a reasonable opportunity to demonstrate their fitness for work.

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