How long is an employer expected to keep a long-term incapacitated employee on the books before it would be fair and reasonable to terminate their employment? Some useful pointers were given in the EAT judgement in Conway v Community Options Ltd  (UKEAT 0034/12).
In this case, Mr Conway was disabled; he suffered from depression and anxiety. He was signed off work on 15 December 2009 as a result of his disability and never returned back to work before his dismissal 15 months later on 8 March 2011.
During this 15 month period, Mr Conway’s incapacity was reviewed by a number of Occupational Health professionals.
In March 2010, an OH adviser expressed the opinion that although Mr Conway shouldn’t return to his original duties, he did expect him to recover with time and treatment. However, in June of that year, a later OH doctor reported that although Mr Conway had received all appropriate treatments and support he was still not fit enough to return to work.
Then in January 2011, another OH doctor reported that Mr Conway’s symptoms had deteriorated over the last few months; that the timescale for his recovery and return to work were difficult to predict; a return to work in the next few months was not anticipated even if adjustments such as a phased return to work or adjusted duties were considered.
The results of the OH doctor’s assessment were discussed with Mr Conway during February 2011, at which meeting he fully understood what the OH doctor was saying; he could not see the position changing in the near future. Mr Conway was warned of the possibility of dismissal.
In March 2011, the same OH doctor repeated her assessment. As there had been no change in Mr Conway’s symptoms or situation, and due to the length of his absence, and the need to recruit a replacement employee, his employment was terminated in March 2011.
In Mr Conway’s case, because is was accepted he was “disabled”, his employer had a duty to make reasonable adjustments due to his disability. This is in accord with sections 3A(2), 4A, and 18B of the Disability Discrimination Act 1995, now sections 20-22 of the Equality Act 2010. Mr Conway claimed his employer had failed to make reasonable adjustments to help him return to work.
However, the medical reports were clear and unchallenged by Mr Conway; he’d been incapacitated for 15 months; it was inadvisable for him to return to his former role; he was not fit to return to work in any other role; a phased return to work was inappropriate. Therefore, there was no reasonable adjustment which could be made to enable him to work.
As a final comment, the EAT stated: “The [employer] could not reasonably be expected to wait any longer after 15 months’ [incapacity] in circumstances where no timescales for a return to work was proffered.”
Although the above case principally dealt with the issue of disability discrimination, nevertheless the case sets out the kind of steps an employer should go through anyway when considering the termination of a long-term incapacitated employee’s employment. It is fair to dismiss an employee on grounds of “capability… of the employee for performing work of the kind which [he/she] was employed by the employer to do.” (Employment Rights Act 1996, section 98(2)(a))
In other words, the employer should always adopt a policy of:
- Obtaining independent medical advice concerning the employee’s incapacity.
- Discussing any findings with the employee, giving them full opportunity to appeal any decision.
- Exploring with the employee ways by which their return to work can be facilitated.
- Perhaps not making any decision during any period of contractual/occupational sick pay.
However, an employer cannot be required to go on indefinitely employing someone who is unlikely to return to work.