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Dismissal following lengthy absence due to illness – BS v Dundee City Council

When is it reasonable to dismiss an employee who has been absent from work due to ill-health for an extended period of time? The recent Inner House Court of Session case of BS v. Dundee City Council [2013] CSIH 91 provides useful guidance on this question.


The employee in this case was a carpenter with 35 years’ service. He was absent from work for over a year due to depression and anxiety. His employer sought regular medical reports from Occupational Health relating to his prognosis and likely return to work date. The final report relied upon by the employer said that the employee would likely recover within one to three months, depending on when his GP issued a final certificate. His employer dismissed him shortly after receiving this report, relying upon the fact that the employee’s GP had not issued a final certificate and that the employee himself had indicated that he did not think he was getting any better.

Key question to consider

This case emphasised that the key question for Tribunals in such cases is whether any reasonable employer would have waited longer before dismissing the employee, focussing on whether the employee is likely to return to work in the foreseeable future.

Other considerations

The Court highlighted that an employer should carry out such medical investigations as are sensible in the circumstances to ascertain the true medical condition of the employee. An employer should also consult with the employee and balance the employee’s representations about his condition against the medical evidence.

Essentially, the employer is required to carry out a balancing exercise, weighing the nature of the employee’s illness and his prospects of returning to work against the employer’s organisational needs. Length of service of the employee can be a relevant consideration in this balancing exercise. The employee in this case had an unblemished 35-year service record. The Court thought this showed evidence of the employee’s willingness to work and likelihood to return from sick-leave as soon as he was able.


This case stressed the importance of the “balancing exercise” employers have to address when deciding whether to dismiss on grounds of capability. It is also significant because the Court confirmed that length of service can be a relevant consideration in such circumstances.

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