Dismissing a sick employee on medical grounds may be lawful and justified, but it is always something that is likely to attract close scrutiny by an Employment Tribunal (ET). In a case on point, a bus driver who was sacked whilst on sick leave, having suffered a stroke, succeeded in an unfair dismissal claim.
The driver was hospitalised for 13 days following his stroke and was on sick leave for over six months prior to his dismissal. The DVLA had revoked his Passenger Carrying Vehicle (PCV) licence and he had been told that he could not apply for a new one until 12 months after the date of his stroke. His dismissal letter stated that his employment was being terminated on medical grounds.
In upholding his complaint, an ET noted that, prior to his dismissal, he was making a good recovery. He was having no neurosensory difficulties and his sole remaining symptom was fatigue. Although his doctor had signed him off sick, a more recent occupational health report had stated that he was fit to return to work, albeit with some adjustments.
No account had been taken of the possibility of further significant improvement in his condition. The occupational health report indicated that his day-to-day activities were unrestricted and there was no evidence that it was impracticable to make any adjustments necessary to cater for his fatigue. Overall, the ET concluded that a reasonable employer would not have dismissed him on medical grounds and that the decision to do so fell outside the range of reasonable responses.
The ruling entitled him to a basic award reflecting his four years’ service. The ET concluded, however, that his compensatory award should be reduced by 70 per cent on the basis that the revocation of his PCV licence would have provided a potentially fair reason for his dismissal. It meant that, at least temporarily, he was not entitled to drive buses, the role for which he had been employed. If not agreed, the amount of his award would be assessed at a further hearing.