What you say about your health can affect whether your sickness dismissal was fair.

The situation

An employee working for a local council had been off work for just over a year with stress-related illness following a difficult personal period. During his absence, an occupational healthAn independent medical service that employers use to assess how a health condition is affecting your ability to work. A referral to occupational health is not a step toward dismissal, but the report p... physician assessed him and reported that his health was improving and that he was likely to be fit to return within one to three monthsThe standard time limit for bringing most employment tribunal claims, running from the date of the act complained of. Because the limit is three months less one day, you should not wait until what fee.... Nine days after receiving that report, the council dismissed him for incapability, partly on the strength of comments he had made at a review meeting that he was 'not any better' and 'no further forward'. He challenged the dismissal as unfair.

What the court found

The employment tribunalAn independent court that hears disputes between employees and employers. It is free to bring a claim as a claimant, and most hearings take place in public. originally ruled the dismissal unfair. The council appealed, and the Employment Appeal Tribunal sent the case back for the tribunal to reconsider, on the basis that it had not properly asked the central question: could a reasonable employer have been expected to wait longer before dismissing? The employee then appealed to the Court of Session.

The Court of Session agreed the case needed to go back to the tribunal, but for more detailed reasons. Under the test set out in Spencer v Paragon Wallpapers and applied here, a tribunal deciding whether a long-term sickness dismissal is fair under section 98(4) of the Employment Rights Act 1996The primary piece of legislation setting out employees rights in the UK, including the right not to be unfairly dismissed, the right to a written statement of employment particulars, and rights relati... must weigh several things together: the medical prognosis, the employee's own account of how he is doing, his length of service, and the practical impact of his continued absence on the business. The court found the original tribunal had leaned too heavily on the doctor's one-to-three-month prognosis without properly weighing it against what the employee himself had said about his condition. It had also treated the need for further medical opinion as more important than the law requires: an employer only has to take medical investigation steps that are sensible for the circumstances, not exhaustive ones. And it should have asked whether the employee's 35 years of service actually pointed to him being likely to return soon, rather than assuming length of service mattered automatically. The case went back to the tribunal to weigh all of this properly and decide, on that basis, whether the dismissal was fair.