How long do you have to wait until you can dismiss an employee on long-term sick leave?

There's a lot for schools and colleges to consider when a member of staff goes off sick. You'll want to minimise disruption to your students whilst also managing the employee's absence fairly and appropriately. A key question that employers often ask is, 'how long am I expected to wait until I can dismiss the employee?'

In the case of K Cush v The Warden and Council of Saint Andrew's College, Bradfield of Bradfield College, the school was faced with a tribunal claim when they decided that they could not wait any longer and dismissed one employee but kept another employee, in similar circumstances, on sick leave. The tribunal had to consider whether the school should have waited longer before they dismissed the employee. 

Facts

Ms Cush, who had depression and anxiety, worked for the school as a cleaner of student accommodation. She was signed off sick with anxiety from September 2021. 

In December 2021, when Ms Cush was taking her children to school, she met a work colleague who was also off sick. They got talking and Ms Cush found out that her colleague was having regular contact with the school, but she was not. 

The school sent an email to Ms Cush inviting her to attend a meeting arranged for 8 February 2022. The email was sent to her work address which Ms Cush did not have access to and she didn't see it. The day before the meeting, the school called Ms Cush about the meeting. She agreed to attend but then emailed to say she had changed her mind. Ms Cush said that inviting her to a meeting with only 24 hours' notice was unfair and that she had experienced a panic attack because of the suggestion that HR would also be present. 

Ms Cush attended an occupational health appointment and the report concluded that she was not currently fit for work and suggested that the school consider phasing her return once she had started psychological therapy (and it had started to work) with a view to being able to deliver her full contractual obligations over time. The report said that she could not return for the next 4-6 weeks as she was waiting for the formal NHS counselling to commence. 

Towards the end of February 2022, Ms Cush raised a grievance which was mainly about issues with her pay. But she also raised other concerns which included the fact that she had been called to a meeting with only 24 hours' notice. Ms Cush was not invited to a grievance meeting, instead a reply was emailed out to her. 

Ms Cush was then invited to a meeting to be held on 16 March 2022 to discuss her absence. The invite explained that one outcome of the meeting could be termination of her employment. She was offered the opportunity to submit a written statement instead of attending in person. 

Ms Cush replied to say that she had wanted to attend in person but because of her anxiety she could not bring herself to go to the meeting. She did not provide a written statement because she said that she was not sure what to say and that the school had already got the occupational health report. 

The meeting took place in her absence. She was dismissed on the grounds of capability due to ill health. 

Ms Cush brought claims of direct disability discrimination, failure to make reasonable adjustments, discrimination arising from a disability, and unfair dismissal. 

Employment Tribunal

The tribunal were satisfied that the school knew that Ms Cush was disabled because of depression and anxiety. It dismissed her direct discrimination claim and the failure to make reasonable adjustments claims. However, the other claims were successful. 

The tribunal held that Ms Cush's absence arose because of her disability and her dismissal amounted to unfavourable treatment. 

The school tried to justify its approach by arguing that it was a proportionate means of achieving a legitimate aim which they said was to:

• manage employee absence
• ensure productivity delivering domestic and cleaning services
• provide effective and profitable working practices within a business
• ensure staff morale and reasonable workloads and conditions for other employees; and
• avoid cost inefficiencies and otherwise promote the business interests of the school. 

The tribunal accepted that these aims were legitimate aims but concluded that the school's decision to dismiss Mr Cush was disproportionate. 

Unsurprisingly, they compared how Ms Cush had been treated with her colleague who was also absent. Their roles were the same and there were similarities in the reasons for their absences. The colleague had been off from work for a much longer period than Ms Cush, yet she had not been dismissed.  

It concluded that the school could have taken other measures to achieve that legitimate aim which were less discriminatory. 

As to the unfair dismissal claim, the tribunal had to consider whether the school was expected to wait any longer. It was satisfied that the reason for Ms Cush's dismissal was capability which is a potentially fair reason for dismissal. However, the school did not properly consult with Ms Cush which meant that it did not properly consider her medical prognosis. In addition, when she said that she couldn't attend the final meeting on 16 March 2022, the school should have considered:

• whether the school should have adjourned it to give her more time to prepare
• giving her questions to answer 
• suggesting that she produce evidence about her health/prognosis; and
• asking her to give her own views on the likelihood of her return.

The school said that Ms Cush's absence had caused operational issues, but hadn't produced any evidence to back that up. The school also said that she had run out of sick pay, but the tribunal said that they were not clear why this would make a difference. Just because an employee's sick pay has run out, that doesn't justify dismissing them. 

The tribunal held that dismissal at that point was outside the range of reasonable responses open to a reasonable employer, so she was unfairly dismissed. 

Ms Cush was awarded £20,117.62 in compensation. 

Takeaway points for other schools and colleges

1. When someone goes off on long-term sick, agree with them how often you expect to contact them and how you will do so to avoid issues further down the line. 
2. Always keep a paper trail. If you are contacting an employee who is off sick, keep records of your conversations including the date, time, and what was said. This can be useful evidence if there are disputes about the level of contact and what was said. 
3. Double check where you are sending correspondence. If you are sending an email, make sure it goes to an email address that the employee can access. If the employee doesn't have a personal email address (or you're not sure if the one you have on record is still used), send any correspondence by post. 
4. If the employee raises a grievance deal with it as you would any other member of staff. The Acas Code of Practice on disciplinary and grievance procedures requires employers to arrange a formal meeting without unreasonable delay. At the meeting, give the employee time to explain their grievance and how they think it should be resolved. 
5. Do you know the full picture? If an employee does not attend a meeting to discuss their absence, especially when a potential outcome is their dismissal, stop and consider all options. Should the meeting be adjourned? Can the questions be put to the employee in writing? Employers need to do what they can to get as much information as possible to make an informed decision.
6. Can you wait any longer before dismissing? If not, why not? As part of this consider how you are managing other employee absences and whether they are being managed consistently. Where's your evidence? If you cannot sustain a long-term absence any longer, a tribunal will expect to see some evidence to back this up. 

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