In the Dundee City Council v Sharp UKEAT/0009/11 case, the EAT made a new judgment that would have a great bearing on similar types of unfair dismissal claims. The EAT declared during the hearing of this case, that prolonged absence of an employee due to illness will not be dependent on his tenure at work while assessing fair dismissal process.

The EAT prior to the ruling heard about Mr S who had made the unfair dismissal claim against his employer, Dundee City Council (DCC). Mr S had worked for DCC as a joiner for the last 35 years. Due to depression and nervousness, he applied and availed sick off in September 2008 and remained absent from work, until he was sacked by DCC in September 2009 for causes related to his competency at work.

While Mr S was not attending work due to prolonged sick offs i.e. before his sacking, he was checked by his doctor and given a certificate, requiring a minimum 8 week time for him to get still fit. However, until the time of his dismissal, every certificate given by the doctor stated that he was still not fit and required a minimum 8 more weeks, when the doctor could have stated that this was the last certificate and that Mr S was fit. This showed that Mr S was unfit for work until the time of his dismissal. However, during his absence, Mr S was given psychotherapy sessions and referred to a professional health care provider for further examination. The health care provider examined Mr S many times and issued several reports. Although each report given stated that Mr S was not perfectly all right, he still required 8 weeks of medication and care and that the treatment was accurate. With a view to assess Mr S’s development, he was also called for a chat by DCC after every report given by his health service provider.

However on 12th August 2009, when Mr S was called for a chat by DC, he told them of how he was consuming sleeping pills and high dose of antidepressants as medication, and hence he believed he would not be able to come to work. This chat was soon followed by a letter from DCC to Mr S, which told him to come to work by 14th September 2009, a date specified in the certificate by his doctor that coincided with the termination of his 8-week mark.

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