Dismissal whilst on sick leave – significant judgement

Following a recent Tribunal decision (De Sousa -v – Kepak Group UD 964/2011), employers now have some guidance on how to manage long-term sick leave employees – this has been a major concern for employers with major difficulties in managing and/or dismissing an employee when they are out on sick leave.

This particular case involved an employee who could not attend work due to a back injury received over two years previously. There were no other positions available in the company and the employer had acted responsibly and reasonably, having followed procedures and obtained medical assessments to see if the employee could return to work.  The decision was taken that the ‘contract of employment was frustrated and had become inoperable’. The employer stated that this decision did not fall under the heading of  ‘unfair dismissal’ and consequently the Unfair Dismissals Act 1977 did not apply. The Employment Appeals Tribunal stated that the legislation had no application in this case, and that the dismissal was due to ‘frustration of contract’, making the employment contract inoperable.

It is very important to demonstrate that all fair and reasonable options have been considered, with medical advice stating that there is no possibility of return to work within a reasonable period of time.