BS was employed by Dundee City Council for 35 years. He’d been off sick with stress and depression for 272 days before finally being dismissed for ill-health on 23rd September 2009.

While he was absent, he had been repeatedly signed off by both his GP and occupational health for eight weeks at a time. The OH reports were prepared by a nurse and were always in a standard form saying simply he was on the right treatment but not getting any better.

In June 2009, the Council asked if the next OH report could be written by a doctor rather than a nurse and address matters afresh in more detail. This didn’t happen and the following assessment, when it took place in July 2009, was again carried out by a nurse and again came with the same wording as previously.

In August 2009, the Council met with BS and decided to bring matters to a head. They set a return to work date of 14th September 2009 and suggested that consideration would be given to terminating employment if he didn’t return to work. They told him he could appeal that if he wished. He didn’t return to work.

By the time they met with him to consider terminating his employment on 23rd September 2009, they’d received a more meaningful OH report – BS having been seen by an OH doctor in the meantime on 11th September.

That doctor said his health was improving and he might be expected to return to work within one to three months. But at the meeting on 23rd September, BS indicated he didn’t feel he was getting any better and his GP had signed him off again in the meantime albeit this time for four weeks.

Ultimately, the Council took the view that there was “no light at the end of the tunnel” and dismissed BS. BS unsuccessfully appealed that dismissal. He then started Tribunal proceedings.

BS initially won at Tribunal, but the Council successfully appealed to the EAT. There was a further appeal by the employee to the Scottish Inner Court.

The Council agreed with the EAT and took the opportunity to set out some questions that a Tribunal should consider. The question of whether an employer should’ve waited any longer will involve consideration of a variety of factors:

• Can the employer be expected to wait any longer? Relevant factors in that regard might include the availability and cost of temporary cover, administrative and OH costs that might be incurred, the size of the organisation and whether the employee had exhausted his sick pay

• There’s a need to consult the employee and take his views into account. But they don’t have to be taken at face value necessarily. The Court commented:

“The relevance of what an employee says about his health may vary from case to case. Particularly in a case where the employee’s health problems are of a psychiatric or psychological nature, what he says may not be wholly reliable, especially if it appears to be contradicted by medical evidence.”

• An employer should find out what the medical position is and get some medical evidence. But this doesn’t require a detailed medical examination.

• The original Tribunal had suggested that length of service was relevant to the degree of investigation required by an employer. But that suggestion was not accepted.

You can find full details of the BS v Dundee City Council case here.

What this means for you

While every case will turn out to be fact sensitive, and depend to some extent on the Tribunal on the day, there are some useful indications here.

It’s perhaps also worth mentioning that the Court of Session felt that the original Tribunal had failed to apply the principles from two significant cases in this area of law: Spencer v Paragon Wallpapers Limited, and Daubney v East Lindsey District Council.

The fact that both of those cases are from 1977 is perhaps an indication that there is some level of certainty for employers in what can be a difficult area.

Many employers will find themselves in a situation such as this and the central issue addressed in this case of how long you have to wait is often a difficult one.

As dismissal is often going to provoke both unfair dismissal and discrimination claims, the temptation is always to wait that little bit longer.

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