In BS v Dundee City Council the Court of Session considered the thorny issue of dismissal on grounds of ill health. The Court identified three key issues from earlier case law, to be as follows:
- In a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer. The size and the resources of the employer are likely to be relevant factors in making this assessment as are the two factors set out below.
- There is a need to consult the employee and take his views into account. The Court made clear that this is a factor that may operate both for and against dismissal. If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him.
- Thirdly, there is a need to take steps to discover the employee's medical condition and his likely prognosis. This requires the employer to obtain proper medical advice but does not require a detailed medical examination. All that the employer is required to do is to ensure that the correct questions are asked and answered.
In relation to the issue of an employee’s length of service, the Court stated that the critical question is whether the length of the employee's service, and the manner in which he worked during that period, yields inferences that indicate that the employee is likely to return to work as soon as he can. However, the Court considered that length of service is likely to be less relevant in ill health cases than in relation to misconduct cases.