How to get it right, when dismissing an employee for long term sickness

Mr Carlos Rodrigues (the “Claimant”) v. Cimandis Food Service Limited (the “Respondent”)

The Claimant was employed by the Respondent as a Driver/Storeman from March 2000 until his employment was terminated on 25th April 2018. The reason given for the termination was that the Claimant was unable to fulfill his duties because of his ill health. The Claimant applied to the tribunal for compensation for unfair dismissal. This is not a case about discrimination due to disability.

In 2016, the Claimant was diagnosed with a chronic health problem that affected the skin on his hands and feet. When it flared up, the condition severely limited the Claimant’s ability to drive and to make deliveries and he was signed off for considerable periods of time. The employer fully accepted that the Claimant’s illness was genuine and caused him significant discomfort, sometimes to a point where he struggled to walk. During the year preceding the capability process, the Claimant had been absent from work due to illness for 163 out of 312 contracted working days.

The employer felt that an occupational health referral would be beneficial and the Claimant agreed. In September 2017, the Claimant underwent an assessment with the employer’s occupational health provider (the “OHP”). A report was received from OHP on the 4th of October 2017.

In February 2018, a second Occupational Health Assessment (the “Assessment”)was carried out after the conditions did not improve. The employer was approaching its busiest time of year and was concerned that the business could not continue to accommodate the Claimant’s illness. The Assessment showed that the Claimant was worried that as soon as he started carrying out his normal job duties his symptoms would flare up again. The Claimant was fit to return to work but it was likely that his symptoms would flare up again.

The Respondent, guided by its HR adviser, decided that a formal capability process was needed. On 28th March 2018, a capability investigation was conducted by Mr Pereira. This led to a formal capability meeting on 25th April 2018. The Claimant was warned that this process could lead to his dismissal. After this meeting, which was attended by the HR adviser, the employer decided to terminate the Claimant’s employment. The Claimant appealed this decision, an appeal hearing took place in June 2018 and the dismissal was upheld. The process was fully documented. Alternative roles were considered, but the Claimant had turned them down.

The Facts
The ability to drive and to make deliveries was a very important part of the Claimant’s job;

Because of his health condition, the Claimant was unable to carry out these duties, and this led to problems for the Respondent who had to arrange cover for the work. This was not sustainable;

At the time of the capability process the Respondent (reasonably) believed that the Claimant’s condition was potentially lifelong and would be likely to flare up whenever the Claimant returned to his driving and delivery duties, causing the Claimant to be unfit for his contracted work as a storeman/delivery driver and at the time, there was no available role in the dry warehouse that could have been offered to the Claimant. The employer came up with possible alternatives but these were not acceptable to the Claimant;

The Law
The Employment (Jersey) Law 2003 provides protection from unfair dismissal. It is for the employer to show what the reason was for the dismissal. The Tribunal was satisfied that the reason, in this case, was the Claimant’s capability, for health reasons, to do the job that he was employed to do. This is a potentially fair reason for dismissal.

Having established that there was a potentially fair reason for the dismissal, the Tribunal must consider whether the dismissal was fair or unfair. The Tribunal must bear in mind the size and resources of the Respondent and decide whether, in the circumstances, the Respondent acted reasonably.

The Tribunal will look at whether the procedure used by the employer was fair. In this case, the Claimant has not made any significant complaint about the process – his complaint is that the Respondent shouldn’t have dismissed him and that a reasonable employer in the same circumstances would have found another way of dealing with the situation.

The Respondent, in this case, followed a reasonable process. They investigated the Claimant’s health, they arranged a referral to occupational health and they arranged meetings in a way that was appropriate and enabled the employee to get his views across. They provided an appeal process and took advice from their HR partner when they needed to.

Due to his health, the Claimant was unable to fulfill a significant part of his duties. Based on reasonable evidence, the Respondent decided that they could not accommodate the Claimant’s health needs in his current position any longer and (reasonably, on the evidence available to them at the time) reached a view that the Claimant’s health was going to continue to be a problem – probably for the remainder of his working life.

The Tribunal found that the decision to dismiss was a decision that a reasonable employer could make in these circumstances. A different employer might have made a different decision, but that does not mean that the dismissal was unfair. The claim is dismissed.

Take Away points
1. Treat long term illness compassionately and provide alternatives, where possible;
2. Have a report from an Occupation Health provider;
3. Follow a fair capability procedure; and
4. Ultimately you can fairly dismiss an employee who is unable to perform the role they were employed into due to long term illness.

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