The balance between supporting employees with long-term health conditions and maintaining operational efficiency is often a delicate one. A recent Employment Tribunal case, Bickerstaff v Commissioners of His Majesty’s Revenue and Customs, provides useful insights into how employers might navigate these challenging waters.
The Case at a Glance
The case revolves around a long-serving employee of HMRC, we shall call her “B”, who was dismissed in May 2022 after an extended period of sickness absence. B had been absent since November 2020 due to various health issues, including Complex Regional Pain Syndrome (CRPS). She brought claims of unfair dismissal and disability discrimination against her employer.
At the heart of this case lies the question many employers ask themselves in such situations: How long can an employer reasonably be expected to wait for an employee to return to work? While being mindful of the principle established in Spencer v Paragon Wallpapers Ltd [1976], where the tribunal stated that “every case depends on its own circumstances” and that Tribunals do not set precedents, this case does provide some useful guidance on such matters.
Balancing Support and Sustainability
We are told, HMRC had provided significant support to B, including options outside the financial capabilities of many employers such as discretionary Sick Pay at Pension Rate (SPPR) for extended periods. However, when it became clear that there was no prospect of her returning to work in the foreseeable future, the decision was made to dismiss her on grounds of capability.
The tribunal found that HMRC had acted fairly and reasonably throughout the process. They had consulted with B, obtained occupational health advice, and considered alternatives to dismissal. Importantly, they had balanced their duty to support an employee with a disability against their operational needs and the management of public resources:
“The Tribunal finds that referral for dismissal was a proportionate means of achieving each of the following legitimate aims; to take management decisions fairly and expeditiously and to use public resources effectively; to combat absenteeism, maintain effective levels of service and maximise staffing levels, meet the Respondent’s operational objectives (i.e. ensure the Respondent can deliver key public services to the taxpayer); and protect scarce public resources.”
Bickerstaff v Commissioners of His Majesty’s Revenue and Customs
This case serves as a reminder that while employers have a duty to make reasonable adjustments for disabled employees, this duty is not unlimited. As highlighted in O’Brien v Bolton St Catherine’s Academy [2017], there comes a point where an employer can justifiably say “enough is enough.”
The tribunal’s decision also emphasises the importance of clear communication and documentation. HMRC’s managers, particularly B’s line manager, were found to have acted professionally and compassionately throughout, even in the face of challenging behaviour from the employee.
Key Takeaways
For HR professionals and managers, this case underscores several key points to be considered when dealing with a case of long-term sickness absence:
- Regular review and consultation: Regularly review long-term absences and consult with employees about their progress and potential return to work.
- Obtain and consider medical evidence: Seek occupational health advice and consider all available medical evidence when making decisions.
- Consider reasonable adjustments: Explore all possible reasonable adjustments, but remember that keeping a job open indefinitely is not always reasonable.
- Document decisions and rationale: Clearly document all decisions and the reasoning behind them, particularly when exercising discretion in areas like additional sick pay.
- Balance competing needs: Strive to balance the needs of the employee with the operational needs of the organisation.
Action to take now
If you have an employee on long-term sick leave maintain an ongoing dialogue with them. This case highlighted the importance of frequent, documented communications. The line-manager had regular catch-up calls with the employee and kept detailed notes of discussions about her condition, treatment progress, and potential return dates. Consistent communication not only demonstrates support for the employee but also provides a clear record of the employer’s efforts and the employee’s situation over time.
Consider implementing a structured review process, perhaps monthly or quarterly, depending on the circumstances. These reviews should cover the employee’s current health status, any changes in their condition, updates on treatment plans, and discussions about potential workplace adjustments or return-to-work plans. This is about being a good and empathetic employer, the goal is not just to tick a box, but to genuinely understand the employee’s situation and explore all possible avenues for their return to work.
In conclusion
While supporting employees with long-term health conditions is crucial, this case reminds us that there are limits to what can reasonably be expected of employers and, on some occasions, dismissal is the most appropriate option. By following a fair and thorough process, considering all options, and maintaining clear communication, employers can navigate these difficult situations effectively and compassionately.
How does your organisation handle long-term sickness absence? Are your policies robust enough to withstand scrutiny in an employment tribunal?