This very issue was recently considered by the High Court in the case of McKevitt v Dublin Bus [2018] IEHC 78. Ms McKevitt had been compulsorily retired from her job as a bus driver on the grounds of medical incapability and challenged the lawfulness of that decision under the Unfair Dismissals Acts 1977 to 2015. One of the grounds she relied upon in her claim before the High Court was that Dublin Bus had failed to comply with the procedural requirements set out in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 prior to dismissing her. The High Court ultimately held that the statutory code of practice did not apply to dismissals on the grounds of medical incapability and more properly applied in the case of conduct related dismissals.

Significantly, the Court reiterated the well-established test that must be satisfied in order for an employee to be lawfully dismissed under the Unfair Dismissals Acts on medical incapability grounds. In this regard, the Court stated that the onus is on the employer to show:

1. That it was the ill-health that was the reason for the dismissal;
2. The reason was substantial;
3. The employee received fair notice that the question of his dismissal for incapacity was being considered; and
4. The employee was afforded an opportunity of being heard.

In direct reply to the question raised, there is no requirement for an employer to follow a disciplinary process prior to dismissing an employee on long-term sick leave on the grounds of medical incapability. However, before an employer does so, it is essential that they consider whether any reasonable accommodations can be put in place to facilitate the employee's return to work. This assessment should be informed by up-to-date medical advice. If the medical advice received confirms the employee's medical incapability of returning to work in the medium-to-long term, even with the provision of reasonable accommodations, an employer should, at that point, make the employee aware their continued employment is in jeopardy. The employee should ideally be afforded the opportunity to present any medical evidence they consider relevant to their proposed dismissal and also be afforded an opportunity to meet with their employer, as part of the employer's decision-making process. It is also prudent to afford the employee a right to appeal a decision to dismiss.

A dismissal on medical incapability grounds should be considered a last resort. Before making such a decision, it is always worth considering whether any other viable alternatives exist such as permitting the employee to remain on unpaid sick leave to afford them a longer period to recuperate, or facilitating a voluntary ill-health early retirement. If an employer provides employees with access to a permanent health insurance scheme, the employer should not dismiss an employee prior to their eligibility for admission to this scheme being assessed by the insurance company. If they do so, they could end up facing a significant damages claim on the basis that their decision deprived the employee of a potentially very valuable contractual benefit. Furthermore, it goes without saying that if an employee has been admitted to such an insured scheme, their employer should not terminate their employment without first seeking legal advice on the implications of so doing.