Lyncock v Cereal Packaging [1988] IRLR 510

Facts

When determining whether or not it was appropriate to dismiss an employee, it was important to take into consideration both the possibility that the disease would return and the likelihood that the individual would be able to return to work. The dismissal of the employee on the basis of capability was judged to be 'fair' by the EAT; nevertheless, in order for an employer to arrive at such a decision, the following elements need to be taken into account by the employer: The record of the employee's attendance at work over the course of several years had been unsatisfactory.

Held

The EAT held that the approach of the employer must be based upon ‘sympathy, understanding and compassion’. Whilst each case must depend upon its own facts, important considerations will be:

“The nature of the illness; the likelihood of it recurring or some other illness arising; the length of the various absences and the spaces of good health between them; the need of the employer for the work done by the particular employee; the impact of the absences on others who work with the employee . . . the important emphasis on a personal assessment in the ultimate decision and, of course, the extent to which the difficulty of the situation and the position of the employee has been made clear to the employee.”

Comment

When an employer is confronted with a pattern of recurrent short-term absences, the employer is obligated to conduct an inquiry based on the principles of "sympathy, tact, and understanding." The fact that a worker is physically able to perform their job duties at the time of termination is simply one piece of the puzzle. It is advised that a medical approach, as opposed to a disciplinary one, be utilised when investigating any situation; nevertheless, such an inquiry must be conducted with extreme sensitivity. After doing a thorough investigation of the situation and discussing it with the worker, the employer must now choose the appropriate course of action. The EAT said that relevant considerations might include one or more of the following:

• the nature of the illness;

• the likelihood of it recurring or some other illness arising;

• the length of the various absences and the spaces of good health in between them;

• the need for the work to be done by the particular employee;

• the impact of the absences on others who work with the employee;

• the adoption and use of proper policies and procedures;

• the emphasis on the personal assessment in the ultimate decision; and

• the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee such that the employee is aware when the point of no return is approaching.