If an employer causes or exacerbates an employee’s illness, does it affect the fairness of the dismissal?
Yes, advises Employment Lawyer, Paula Stuart, following the Employment Appeal Tribunal (EAT) decision in L v M (UKEAT/0382/13/DXA)
In this case the EAT emphasised a point made in an earlier case, McAdie v Royal Bank of Scotland  IRLR 895 that:
‘…where the fact that the employer is in one sense or another responsible for an employee’s incapacity is, as a matter of common sense and common fairness, relevant to whether, and if so when, it is reasonable to dismiss him for that incapacity. It may, for example, be necessary in such a case to “go the extra mile” in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable.’
The Court of Appeal decision in McAdie is authority that, where the employer causes an employee’s ill health, dismissing that employee will not necessarily be unfair, although it may mean that the employer should take greater steps to avoid dismissal than would otherwise be the case.
Paula Stuart explains that ‘This EAT judgment does not set out any new law but serves as a reminder of the principle that the employer should ‘go the extra mile’ before dismissing an employee who is absent due to the employer’s conduct.’