Dismissal Fair Despite Optimistic Occupational Health Report

An employee’s dismissal for poor attendance was fair, despite the fact that an occupational health report suggested he might be ready for a phased return in a couple of months.

In Jennings v Barts and the London NHS Trust, J was dismissed on grounds of poor attendance due to ill-health.  An occupational health assessment in November 2007 suggested a phased return to work starting in four to six weeks.  A further occupational health report in January 2008 suggested he might be ready for a phased return in March 2008.  However, he was dismissed at a final stage meeting under the long-term absence procedure on 23 January 2008 on the basis that his continued absence was unfair to colleagues, the department was under pressure and there was a possibility he would not return to work as no date had been set.

J claimed unfair dismissal and argued that since occupational health had recommended a phased return starting in March, it was premature to dismiss him.  However, the tribunal disagreed, saying that occupational health reports are frequently “positive and optimistic” as this is what employees suffering from stress or depression need to hear.  What the report probably envisaged was another review in March, rather than an actual return.  J had been pessimistic himself in January about his ability to return to work in March, asking for more time and saying he did not want to return too early.  J had made no suggestions as to his return to work or options for redeployment despite having ample opportunity to do so.  His dismissal was therefore fair.

The EAT rejected J’s appeal.  J’s absence record was very poor – he had been absent for 100 days in eight months and this justified the employer’s decision that it should not wait any longer before dismissing him.

This case demonstrates that whilst employers should always take account of the medical evidence, the dismissal of an employee who has been off work for a long time may be fair, even if an occupational health report suggests that they may be able to return in the near future.  The tribunal was, however, influenced by the fact that the employee himself was not optimistic about an imminent return, despite the contents of the occupational health report.