Employment judge Muriel Robison found that the Bank of Scotland was “perfectly reasonable” in its stance that their employee should either return to work or be dismissed.
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G Maxwell originally took sick leave in June 2021 after working conditions and disagreements over his wish to take redundancy made his underlying mental health issues unbearable.
Despite working with occupational health professionals and undertaking counselling, Maxwell would not return to work before his dismissal in June 2022.
Maxwell had been passed over for voluntary redundancy, and effectively demoted in 2018. In a subsequent restructuring, only officers of his previous rank were allowed to apply for redundancy. The bank’s refusal to allow him to apply, he said, was the cause of significant mental distress.
This distress, the court heard, worsened Maxwell’s condition to the point that he would repeatedly state he could not return to work.
Robison said: “The claimant had apparently set himself against returning, and although he was taking advantage of supports and mechanisms to address his mental health issues, it appears that the claimant did not consider that he could return to the respondent in any capacity.
“The claimant’s focus, and this is apparent throughout the sickness absence process, was to secure himself an exit package or latterly ill-health early retirement.”
Key to the judgement was the fact that the Bank of Scotland had made efforts to accommodate Maxwell’s concerns and illness, and bring him back to work in some capacity.
The bank consulted with Maxwell throughout his absence, implemented counselling and undertook a stress risk assessment for discussions between the two parties.
The firm likewise offered him adjustments recommended by his occupational health nurse that might have helped him back into work, including reduced hours, discretionary breaks, and a phased return.
The Bank of Scotland’s adherence to its own sickness absence policies was crucial to its tribunal victory, according to Matt Jenkin, employment partner at law firm Moorcrofts.
Speaking to HR magazine, he said: “In my experience, the lack of process when dealing with long-term sickness absence can often be the reason for a finding of unfair dismissal.
“Whilst it may appear obvious to an employer that the employee can no longer carry out their work due ill-health, that doesn’t excuse a lack of process and consideration with the employee concerned.”
He added that the case was unusual for not including a disability discrimination claim alongside the ill-health dismissal claim.
Libby Payne, employment partner at law firm Withers told HR magazine: “The case does demonstrate that employers are entitled to dismiss on capability grounds where it is not clear if and when the employee can return to work, despite efforts to support such a return being explored and exhausted.”
Whatever the condition, employers should regularly communicate with staff living with long-term illnesses, according to Alan Price, CEO of HR consultancy BrightHR.
Speaking to HR magazine, he said: “These meetings might include details of their progress, what their doctors are saying and what treatment they have received. Employers are then in a better position to know how to support the employee.
“Failing to provide reasonable adjustments for disabled employees can lead to successful discrimination claims.”
Long Covid has become a particularly common long-term condition, with an estimated 2 million people in the UK living with the illness, according to ONS data.
Price added: “Employers should keep in mind that any health condition, including long Covid, may be considered a disability under the Equality Act 2010 if it is long term (typically lasting one year or more) and the symptoms cause a substantial, adverse effect on the employee’s ability to carry out normal day-to-day activities.
“Employers should keep in mind that long Covid will affect each individual differently, so adjustments must be personalised to each employee, in line with their specific needs. Adopting a one-size-fits-all approach in this situation would prove ineffective for both the employee and employer.”
