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Dealing with long-term sickness absence – another complication

December 12, 2018
Employment Law

The recent case of Awan v ICTS reminds us of one of the additional complications that can arise when dismissing an employee who has been off work on long term sick leave.

The facts
Mr A worked at Heathrow Airport, until depression led to a period of extended sickness absence. Under his contract of employment, he had the benefit of an income protection policy, which provided him with an ongoing payment for so long as he was signed off sick, but remained in employment. Unfortunately, Mr A lost this benefit when his employers decided to dismiss him.

Mr A brought claims, arguing that he had been unfairly dismissed and subjected to disability discrimination.

The decision
An Employment Tribunal originally found that Mr A’s dismissal was lawful. However, on appeal to the Employment Appeal Tribunal, the EAT concluded that there was an implied contractual obligation on the employer to refrain from dismissing an employee on health grounds, where it would result in the employee losing the income protection benefit.  

The EAT ordered that the claims for unfair dismissal and disability discrimination should be heard again, having regard to the findings made in relation to the employer’s contractual obligations.

What does this mean?
We already knew that there were significant contractual risks associated with dismissing an employee on long term sick leave, where the dismissal might jeopardise their receipt of insurance benefits. This case confirms that such a dismissal is also at grave risk of being found to be both unfair and discriminatory.  

Especially careful thought needs to be given to the risks associated with dismissals in cases such as these. The costs of getting things wrong can be eye-watering. If you need help with a case of this nature, please get in touch.

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